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AUL Responds to Claims Made About Our Legal Analysis of Health Care

Response to claims made by Matthew Boudway of Commonweal:

  1. Boudway:  Anyone who follows the arrows can see that no tax money is used to pay for abortions.

AUL:  The chart as a whole demonstrates how tax dollars will be used to pay for plans that cover abortions under the Senate/Obama health care reform bill.  Using tax dollars to subsidize insurance plans that cover abortions is a radical departure from existing law — the Hyde amendment explicitly prohibits the use of federal funds to support plans that provide abortion.  The language of the Hyde amendment underscores the long-held understanding that subsidizing plans that provide abortion is tantamount to supporting abortion with federal funds.  This is explained in more detail below.

  1. Boudway:  Nor is anyone forced by the Senate Bill to enroll in a plan that covers abortion. Those who do enroll in such a plan will have to pay a separate premium that goes into a segregated fund for abortion payments . . . According to the chart, enrollees would be required to pay the surcharge “even if [they] object or never plan to have an abortion.” This is true, just as it’s true that many who object to abortion and/or never plan to have an abortion (who does?) already pay for abortions through their health-insurance premiums. If people now want to avoid this, they can, but then, so could anyone under the system . . .

AUL:  No individual should have to pay for another person’s abortion in violation of his/her own conscience.  However, that is exactly what happens when pro-life individuals must pay into an insurance plan that covers abortions.  It is disingenuous to claim that individuals who do not want to pay for abortion coverage can choose an insurance plan that does not include it.  If John Doe works for XYZ, a small business, and XYZ decides to enroll John and the rest of its employees in an insurance plan that includes abortion coverage in an exchange, John and his coworkers will be forced to pay the surcharge.  It would be prohibitively expensive for them to do otherwise.

It is true that some individuals who object to abortion currently pay for abortions through their insurance premiums.  Some are just as trapped in the current system as John Doe would be trapped in the new system, and that is a tragedy.  However, it is fundamentally offensive for the government to institute a system in which pro-life Americans, or their employers on their behalf, would have to write a separate premium check to cover elective abortions.

  1. Boudway:  The Senate Bill would not allow insurance exchanges to offer only plans that cover abortion.

AUL:  Our concern is not simply that prolife insurance companies might be shut out of insurance exchanges — our concern is that under mandate authorities in the bill, all private insurance companies could be required to cover abortion, regardless of whether they participate in the exchanges.  Specifically, an amendment added to the Senate health care reform bill on December 3, 2009 (sponsored by Sen. Mikulski (D-MD)) in pertinent part, requires group health plans and health insurance issuers offering group or individual health insurance to provide coverage for and not impose cost sharing requirements on “preventive care” for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA).”

While this amendment does not explicitly require abortion coverage, it also fails to exclude it.  This concern was raised during the debate over the amendment, and Senator Murkowski (R-AK) offered an amendment that would have prevented the inclusion of abortion; however, her amendment was defeated.  The HRSA could categorize abortion as “preventive care,” and would therefore recommend coverage for abortion by all private plans.  The recommendation would force private plans to offer abortion coverage.

The Stupak Amendment would prohibit this, and the failure to include that prohibition in the Senate bill is another reason why the language is defective.

  1. Boudway:  The double asterisks tell us that “if the Hyde Amendment is removed from LHHS approps, affordability credits could be used to directly pay for abortions,” but there is no reason to suppose that the Hyde Amendment will be removed from LHHS appropriations.

AUL:  It is incredible to claim that “there is no reason to suppose that the Hyde Amendment will be removed from LHHS appropriations.”  Pro-abortion organizations are bent on eliminating the Hyde Amendment, and many of the politicians they support are equally committed to the goal.  It is not cynical to see the carefully written abortion language in the Senate bill as the first step in a plan to eliminate any restrictions on federal funding for abortion.

The authors of the Senate/Obama language could have explicitly stated that affordability credits (and other funds in the bill, for that matter) cannot be used to pay for elective abortions.  That is how the abortion funding ban is written in the Stupak amendment to the House bill.  Instead, the Senate bill provides that affordability credits cannot be used to pay for those abortions that are currently prohibited by the Hyde Amendment. In other words, if the Hyde Amendment, an appropriations rider that must be renewed annually, were not included yearly, abortion would be covered by the affordability credits under the Senate/Obama bill (which would by then be law).

One must remember that Democratic leadership and the media claimed at the beginning of this debate that the Hyde Amendment would not be affected by health care reform, surely knowing that this fact was irrelevant since the funding mechanisms in the bills circumvented the Hyde Amendment (and do so to this day).

  1. Boudway:  Finally, the triple asterisks inform us that “federal funding of insurance plans that cover abortions is a radical change from existing law.” . . . One reason the federal government has never before funded insurance plans that cover elective abortion is that it has never had to fund insurance for as many people as would receive affordability credits under the Senate Bill. You cannot just extend the Hyde Amendment to the new private-insurance exchanges without also translating it into a new legal structure. The Stupak Amendment does this rather nicely.

AUL:  We agree that a new structure is needed to incorporate the principles of Hyde into the new system, which is why we support the Stupak language and oppose the Senate bill that does not include Stupak.  The Stupak amendment and our position is reflected in current federal law.  The Federal Employees Health Benefits Program (FEHBP), under which federal employees choose benefits, is modeled on the Hyde Amendment and does not permit one of those choices to be insurance plans that cover abortions.

  1. Boudway:  Groups like Americans United for Life scare us with claims about what the Democrats’ health-insurance reform will do, and then, when asked for an explanation, fall back on hedged predictions about what it could do if this or that also happened, even when this and that seem quite unlikely.

AUL:  It is indisputable that when legislation relating to health care does not explicitly exclude abortion coverage or funding, administrative agencies and courts will include it.

Congress has passed the Hyde Amendment in LHHS appropriations each year since 1976, because the administrative agency administering Medicaid began paying for over 300,000 abortions a year.

In 1996, in Planned Parenthood v. Engler, the Sixth Circuit held that abortion “fall[s] within several of Medicaid’s mandatory categories of care” (family planning, outpatient services, inpatient services, and physician services) and that a state law that restricted funding for abortion to those necessary to save the mother’s life conflicts with the “mandate.”[1] Therefore, if Congress does not explicitly prohibit states from funding certain abortions with Medicaid (as Congress does through Hyde), states must fund them.

[1] 73 F.3d 634, 637 (6th Cir. 1996).

UPDATE: Boudway responds.