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Why Politics Daily Got it Wrong on Taxpayer-Funded Abortion

Response to David Gibson’s Analysis of CHC Provision in Senate Health Care Reform Bill

In his commentary on the Politics Daily website, David Gibson attacks pro-life opposition to the Senate health care reform bill on multiple fronts.  His analysis is mistaken, as is extensively explained in our previous blog posts and memoranda analyzing the Senate bill; however, one point deserves more explanation.

Gibson argues that new funding for Community Health Centers (CHCs) authorized and appropriated through the Senate health care reform bill (and President Obama’s plan) will not be used to pay for abortions because (a) CHCs do not perform abortions and (b) the funding will be subject to the Hyde Amendment (the abortion funding prohibition added annually to the Labor Health and Human Services appropriations bill).  Below is a point-by-point rebuttal of Gibson’s claims.

Gibson: “Most obviously, none of the 1,250 Federally Qualified Health Centers, or FQHCs, that would receive the billions in money through the reform bill offer abortion services. . . . In addition, the statement [from the National Association of Community Health Centers) said that ‘Health centers do not plan to, nor are they seeking to, become providers of abortion. . .'”

AUL: There are no restrictions on the provision of abortion services for community health centers in the Federally Qualified Health Center authorizing statute. In fact, groups such as the Reproductive Health Access Project and the Abortion Access Project strongly advocate for the inclusion of abortion services in community health centers as part of providing “primary care” and preventive services.

Gibson: “The federal Department of Health and Human Services (HHS) has also said that none of the health centers are abortion providers, and none of them are operated by Planned Parenthood.  Moreover, it is unlikely that Planned Parenthood or any other provider of reproductive health services could qualify as a Community Health Center because these centers by law have to provide all-around care for both men and women, and for children.”

AUL: While the Federally Qualified Health Centers statute generally requires each Community Health Center to provide a broad array of primary health care services, particular centers are also specifically allowed to provide for some of the required services through contracts or cooperative arrangements.  It is certainly possible for Planned Parenthood to participate in the community health center program.

This is clearly the intent of pro-abortion members of the Senate.  During the Senate HELP Committee mark-up, an amendment by Sen. Mikulski (D-Md.) was accepted that would require insurers to cover “essential community providers [ECP’s] that serve predominantly low-income, medically under-served individuals.” Sen. Mikulski explained the amendment as providing for “any service deemed medically necessary or medically appropriate.” She acknowledged that Planned Parenthood will fall into this category of “community providers” and will therefore be included in health insurance networks under the bill.  Sen. Mikulski refused, at Sen. Hatch’s request, to include specific language in the bill excluding “abortion services” from “medically necessary or medically appropriate” care.

While CHC’s may not be precisely the same as ECP’s, pro-abortion lawmakers clearly have a plan to ensure that Planned Parenthood qualifies for grants geared towards the underserved as part of health care reform.

Gibson: “Any money from a new health care law would be subject to the same Hyde amendment restrictions as money from the Stupak version of the House bill (which allocates $12 billion to community health centers).”

AUL: Gibson is correct that the Stupak-Pitts language in the House bill mirrored the Hyde Amendment and would therefore have prohibited the use of the new funding for CHCs for abortions.  However, the Stupak-Pitts language was excluded from the Senate bill, which is awaiting a vote in the House.  The abortion funding restriction in the Senate bill applies only to the affordability and cost sharing credits, not to the provision that includes the $7 billion ($11 billion in President Obama’s proposed version) expansion of CHC funding.  The Senate had the opportunity to adopt the same strong anti-funding language found in the House bill, but instead elected to include weak language that only applies to one provision in the bill.  President Obama is adopting the Senate approach, not the House approach.

Gibson: “The language in the Senate bill is not as explicit as the House bill about the path of the money, but the health care center money can only go through HHS and thus must be subject to Hyde restrictions.  The Senate bill…’provides that this funding is to be transferred to HHS accounts to increase funding for community health centers and does not provide for segregating these funds,’ said Timothy Stoltzfus Jost, a law professor at Washington and Lee University and a top health care expert who has done an extensive analysis of the abortion financing question. ‘Since all other HHS funding, including expenditures from trust funds, is subject to the Hyde Amendment, these funds cannot be used to pay for abortions.'”

AUL: The Hyde amendment’s restrictions on abortion funding only apply to funds appropriated through the LHHS Appropriations bill and to funds in any trust fund to which funds are appropriated through the LHHS appropriations bill.  The Senate bill self-appropriates the $7 billion for CHCs, and the bill does not specifically provide that the new funds will be housed in a trust fund that is funded by the LHHS appropriations bill, only that it will be transferred to HHS.  Funds under the Senate bill that are merely transferred to HHS are not covered by Hyde.

Therefore, there is no guarantee that the funds will be covered by the Hyde amendment.  To prohibit the use of these funds for abortions, the Department of Health and Human Services will have to apply existing regulations to the funding, and those regulations will have to withstand the scrutiny of courts.  Given the current pro-abortion administration and Secretary Kathleen Sebelius’ staunch pro-abortion stance during her time as governor of Kansas, as well as courts’ historical inclinations to read abortion coverage and funding into statutes that do not explicitly exclude it, no one can be confident these funds will not pay for abortions.