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Anti-Life Concerns in H.R. 3962

The bill being debated right now in the House, H.R. 3962, contains several problematic anti-life provisions.

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.

I. Abortion

The 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 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));

Mandates 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 regarding abortion. 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.  This limits the extent to which an insurance company can be pro-life.  Since Section 304(d) provides that an “exchange participating plan” cannot discriminate against a health care provider/entity that provides abortions, a pro-life insurance company that does not want to subsidize abortion, even indirectly, would not be able to do so.

Sections 258(a) and (b) provide that there is no preemption of state laws on abortion or of federal protections for conscience.  However, the conscience protection in the bill does not extend to pharmacists and pharmacies and there is no assurance that state laws protecting the conscience of these health care providers will not be preempted.

H.R. 3962 affords no conscience protection for health care providers regarding end-of-life concerns.

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.

Section 1401(h) provides that CER will not be used to “mandate coverage, reimbursement, or other policies for any public or private payer.” It also provides that none of the CER reports “shall be construed as mandates, for payment, coverage, or treatment.” Furthermore, the section provides that “nothing in this section shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine.” AUL continues to evaluate whether these provisions are sufficient to prevent the inappropriate use of CER.

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. Oregon and Washington, for example, have laws permitting assisted suicide but the laws state that what they permit is not assisted suicide. Language must be explicit and broad to ensure that this provision does not create a large loophole for the promotion of assisted suicide.  This loophole will extend to other states who may similarly redefine 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”).