Update: On November 7, 2009, the Stupak-Pitts amendment was added to H.R. 3962 on the House Floor. The Stupak-Pitts amendment resolves the abortion and conscience concerns in the House bill discussed below [Note, these concerns have not been resolved in the Senate bill]. For more information, please see:
Oct. 30, 2009
The new version of health care reform unveiled by Speaker of the House Nancy Pelosi fails to exclude abortion funding and coverage; in fact, it explicitly includes it. Below is AUL’s legal analysis of the abortion provisions in the bill, as well as an analysis of the conscience protection, Comparative Effectiveness Research, and End-of-life provisions in the bill.
The new House health care bill, H.R. 3962 includes the same problematic provisions found in the Capps Amendment added to H.R. 3200 (the former House health care reform bill). The new bill:
- Allows private health insurance plans that cover elective abortion to receive government subsidies (Section 222(e)(2)) (The bill also includes the Capps provision that purports to segregate the “federal dollars” from “private dollars” that are used to pay for abortions (Sections 303(e)(2); 341(c)(3)), but nothing alters the fact that this provision allows government dollars to go to private plans that cover abortion);
- Permits the public option to include abortion coverage (Section 222(e)(3));
- Ensures that one plan in every coverage area covers abortion (Section 303(e)(1)(A)).
H.R. 3962 also states that funds provided for school-based clinics cannot be used for abortions (Sec. 399Z-1(c)(2))) and that school-based clinics are defined as not providing abortions (Sec. 399Z-1(l)(3)(E)). However, this provision does not prohibit abortion referrals.
Finally, Section 804 ties Indian Health Services (IHS) funding for abortion to the Hyde Amendment (added annually to the Health and Human Services (HHS) Appropriations Bill). Therefore, if the Hyde Amendment is not added to the HHS Bill in a given year, there will be no ban on abortion funding under the IHS.
II. Conscience Protection
Initially, H.R. 3962 appears to contain strong conscience protection. Section 259, entitled “nondiscrimination on abortion and respect for rights of conscience,” mirrors existing law, i.e., the clear protections for those who oppose abortion provided through the Hyde/Weldon conscience amendment (which must be added to an appropriations bill annually). However, Section 304(d) protects abortionists from “discrimination” by pro-life insurance plans who want to participate in the exchange, but do not want to contract with abortionists.
The question becomes how these two provisions will be reconciled. Section 259 provides that an insurance company cannot be discriminated against for not covering abortion. However, Section 304(d) provides that an “exchange participating plan” cannot discriminate against a health care provider/entity that provides abortions. Who wins ““ the abortion provider or the pro-life insurance company whose conscience prohibits them from contracting with abortionists?
III. Comparative Effectiveness Research
Section 1401 addresses the use of Comparative Effectiveness Research (CER). CER is used to compare the benefits and harms of methods to prevent, diagnose, treat, and monitor a clinical condition and improve delivery of health care. At AUL, we believe that any CER provision must include language to ensure that the results of CER will not be used to mandate or encourage the withdrawal or curtailment of effective life-sustaining treatment for the terminally ill, the chronically ill, or the permanently disabled.
While the CER provisions of the original House health care reform bill, H.R. 3200, contained troubling provisions, the bill was amended to provide acceptable safeguards. The revised section now states:
Sec. 1401 (j) RESEARCH MAY NOT BE USED TO DENY OR RATION CARE. Nothing in this section shall be construed to make more stringent or otherwise change the standards or requirements for coverage of items and services under this Act.
This broad language and explicit prohibition on use of CER to deny or ration care is essential. AUL will continue to monitor the status of CER provisions, both in the Senate bill and if/when a final health care bill moves forward, to make sure this language is not stripped or weakened.
AUL remains concerned that other provisions of H.R. 3962 interfere with the doctor-patient relationship and could lead to the rationing of care. For more information, please see:
IV. End of Life
Section 240 requires the dissemination of advance care (end of life) planning information by Qualified Health Benefits Plans (QHBP). Section (a)(3) provides that a QHBP “shall not promote suicide, assisted suicide, euthanasia, or mercy killing.” The information disseminated “shall not presume the withdrawal of treatment and shall include end-of-life planning information that includes options to maintain all or most medical interventions.”
Section 240(b) provides that nothing in this section shall be construed to require an individual to complete an advanced directive or a physician’s order for life sustaining treatment or other end-of-life planning documents, to require an individual to consent to restrictions in medical benefits, or to promote suicide, assisted suicide, euthanasia, or mercy killing.
Section (d)(1) prohibits materials distributed by QHBP’s from listing assisted suicide as an option. Section (d)(2) clarifies that nothing in (d)(1) applies or affects any options for withholding treatment, nutrition, palliative/hospice care. Finally, section (d)(3) provides that the bill doesn’t preempt state laws.
While these protections appear strong, H.R. 3962 does not provide definitions for terms such as “assisted suicide,” and the broader language that included a prohibition on providing materials that promoted the intentional “hastening of death” which was adopted in the Energy and Commerce Committee was removed from H.R. 3962. Broader language is necessary because while Oregon and Washington have laws permitting assisted suicide, the laws state that what they permit is not assisted suicide. Language must me explicit and broad to ensure that this provision does not create a large loophole for the promotion of assisted suicide.
Section 1233 creates “advance care planning consultations” as a new optional Medicare-covered benefit. The consultation must be between a physician or other health care professional and the patient, and may be conducted every five years or more often if the patient’s condition deteriorates.
The section specifies that “[n]othing in this section shall–“¦encourage the promotion of suicide or assisted suicide.” However, this section, like Section 240, fails to define “assisted suicide.” Therefore, states that have legalized assisted suicide by another name may argue that Medicare should pay for end-of-life counseling that includes assisted suicide as an option (under another name, like “death with dignity”).
 There are two good provisions relating to abortion in the bill — Section 222(e)(1) prohibits the Health Benefits Advisory Committee from recommending the inclusion of abortion or the Secretary from including such services in the minimum benefits package, and the commissioner may not require such services for a qualified health benefits plan to participate in the exchange. Also, Sections 258(a) and (b) provide that there is no preemption of state laws on abortion or of federal protections for conscience.