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AUL Response to Kildee Dear Colleague Letter

In a “Dear Colleague” letter provided to other members of the House today, Rep. Kildee provides the following explanation for why the abortion language in the Senate health care reform bill will not prevent him from supporting the bill – he is “convinced that the Senate language maintains the Hyde Amendment.”

Unfortunately, Rep. Kildee is wrong.  While the Senate bill does not alter the Hyde Amendment itself, the Hyde Amendment will not apply to the new funding in the Senate bill.  Further, the Senate bill allows part of what is explicitly forbidden by Hyde, namely, federal subsidization of insurance plans that cover abortions.  We have provided a detailed comparison of the Hyde Amendment, the Stupak-Pitts Amendment (added to the now-abandoned House health care reform bill), and the Senate abortion-funding language.  This analysis shows that while the abandoned House language mirrored the Hyde amendment, the Senate language is a radical departure from existing law.

Rep. Kildee also references a “conscience clause” in the Senate bill.  Yes, the Senate bill includes conscience language; however, the conscience clause is narrow in that it does not prohibit any government entity or program (federal, state, or local) from discriminating against health care providers that do not want to participate in abortions.

Rep. Kildee notes that the Senate bill allows a state to ban insurance plans that include abortion from participating in its Exchange.  However, this changes the status quo from one where the federal government does not consider abortion to be “health care,” to one where it does and now burdens a state to take affirmative action not to fund insurance plans that cover abortions within its borders.  Even that affirmative action by a state would still not protect its citizens from having their federal tax dollars applied to pro-abortion plans in other states that do not similarly “opt-out.”

Rep. Kildee writes he disagrees that the Senate bill would lead to abortions being performed at community health centers.  However, 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.

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, referenced by Rep. Kildee in his letter, 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.

Rep. Kildee does not mention another abortion-related concern with the bill.   Under the Mikulski amendment to the bill, the Health Resources and Services Administration (HRSA) has the power to require private insurance plans to include abortion coverage under the guise of “preventive care.”  In other words, an administrative agency could possibly use its mandate authority to require plans to cover abortions – nothing in the bill prevents it.

Rep. Kildee claims that a vote for this bill does not diminish his pro-life record.  However, a vote for this bill is a vote for the largest expansion of abortion since Roe v. Wade.  It is a vote for the federal government’s acceptance of abortion as health care, in clear contradiction to longstanding federal law and policy.