It became apparent on Tuesday that former Congressman Bart Stupak (D-MI) is suffering from a bout of “voter’s remorse.” In March of 2010, he and a coalition of pro-life democrats made an eleventh-hour decision to vote in favor of the Affordable Care Act (ACA), with the justification that an executive order—to be issued by President Obama—would ensure that existing restrictions on federal funding for abortion would apply to the ACA.
What a difference nearly 2 ½ years makes. Mr. Stupak, who in March 2010 expressed unwavering confidence in the “‘ironclad’ commitment” he received “from the president that no taxpayer dollars will be used to pay for abortions,” is now singing a different tune about the ACA, or at least its implementation.
In a Democrats for Life panel during the Democratic National Convention, Stupak expressed his disapproval of the “HHS mandate,” which requires most private insurance plans to cover life-ending drugs and devices, and requires nearly all employers to offer (and pay for) the plans to their employees or pay a stiff penalty.
Mr. Stupak remarked, “I am perplexed and disappointed that, having negotiated the Executive Order with the President, not only does that HHS mandate violate the Executive Order but it also violates statutory law . . . . I think it is illegal.”
Similarly, in November of 2011 former Congresswoman Kathy Dahlkemper (D-PA), a member of Stupak’s coalition, claimed that she “would have never voted for the final version of the bill if [she] expected the Obama Administration to force Catholic hospitals and Catholic Colleges and Universities to pay for contraception.” She argued that she and her colleagues “worked hard to prevent abortion funding in health care and to include clear conscience protections for those with moral objections to abortion and contraceptive devices that cause abortion.”
Despite her disappointment, Ms. Dahlkemper stated that she “trust[s] that the President will honor the commitment he made to those of us who supported final passage.”
It is tragically evident that Mr. Stupak and Ms. Dahlkemper misplaced their trust. In spite of Ms. Dahlkemper’s hopeful statement from late last year, the President and his administration have not issued new or amended regulations to protect the conscience rights of all healthcare providers and payers and employers. In an obvious political ploy, HHS has merely set an after-the-election expiration date for the conscience rights of some religious non-profits.
What’s more, strong conscience protections cannot alter the fundamentally anti-life policy—that abortion-inducing drugs are “healthcare” that must be covered by most insurance plans without co-pay— embodied in the HHS mandate. Whether or not HHS creates more “exceptions” to who has to pay for it, the rule is now that ending early human lives is “prevention.”
Further, it is disingenuous for Stupak, Dahlkemper and others to claim that they “did not know” that the Obama Administration, through the ACA, would (or at least, could) mandate insurance coverage of contraception including life-ending drugs, and implement the ACA in other anti-life ways. The mandate came through a known “loophole” in the law.
HHS derived its authority to establish the mandate from Section 2713(a)(4) of the ACA, which requires private insurance plans to cover certain preventive services for women. This section was added to the ACA by an amendment sponsored by Senator Barbara Mikulski (D-MD) on December 3, 2009.
Importantly, the amendment was not added in the dark of night – it was the center of a very public debate.
Pro-life groups, like AUL, were concerned that the Mikulski amendment could lead to mandated insurance coverage of abortions. Protests from pro-life Americans and members of the Senate forced Senator Mikulski into a colloquy on the Senate floor in which she gave assurances that her amendment was not intended to cover abortion—however, she made no promise about contraception, including drugs and devices with life-ending mechanisms of action. In fact, she explicitly stated that her amendment was intended to cover “family planning as recognized by other acts.” That includes contraception—as broadly as the federal government chooses to define it.
In addition, AUL exhaustively explained to members of Congress how the ACA was not consistent with the Hyde Amendment and other federal restrictions on abortion funding. Because an executive order has the force of law only when it is consistent with statutory law, it was impossible for the President’s Executive Order to undo anti-life provisions explicitly written into the law. Further, the Executive Order utterly failed to address most of the ACA’s anti-life provisions and loopholes, including the preventive care mandate. This fact makes Mr. Stupak’s statement that the mandate violates the Executive Order perplexing – the EO did not mention the mandate.
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Perhaps other verbal assurances were made by President Obama. Unfortunately, those assurances never made it into enforceable law.
We cannot turn back the calendar to March 2010 so that the members of the Stupak coalition can make different choices. However, it is time for Congress to remove the anti-life provisions in the ACA in the only way that is truly “ironclad” – through legislation.