A Missed Opportunity
During the 2009-10 health care reform debate, we at Americans United for Life strongly urged Congress to adopt a prohibition on federal funding for elective abortions that would cover all provisions in the new health care reform bill. Amendments offered in both the House and the Senate would have accomplished this – the Stupak-Pitts amendment in the House and the Hatch-Nelson-Casey amendment in the Senate. Unfortunately, Congress passed the final health care reform bill without including either of these amendments prohibiting federal funding for abortions.
In order to win the votes of a handful of pro-life Democrats in the House, President Obama signed an Executive Order (EO) that purported to apply the Hyde Amendment (which restricts the use of certain federal dollars, such as Medicaid funds, for abortions) to the new law. In reality, the EO only addressed two provisions in the law: the new health insurance exchanges and additional funding for Community Health Centers (as a former AUL memo explains, the EO is insufficient even on these points). The EO utterly failed, however, to comprehensively apply a prohibition on the use of federal funds for abortions to the law.
The Fall Out
It has not taken long for this failure to create problems. One of the provisions in the law that lacks a prohibition on the use of federal funds for abortions creates a $5 billion preexisting condition insurance program that will provide up to 400,000 individuals with insurance. The program will be entirely funded by the federal government (federal tax-dollars). Approximately half of the states will use a federal pool to insure individuals who meet the requirements of this program. The details of this pool are expected from the Department of Health and Human Services (HHS) in August. The other half of the states will create their own pools, by submitting their plans to HHS for approval. While details on most states’ pools are not available, three state plans (Pennsylvania, New Mexico, and Maryland) were submitted with language explicitly allowing the use of these federal funds for elective abortions.
Following outcry from pro-life groups, Pennsylvania and New Mexico issued statements that their plans would not cover abortions, and HHS released a statement that said:
[i]n Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) except in the cases of rape or incest, or where the life of the woman would be endangered. Our policy is the same for both state and federally-run PCIP programs. We will reiterate this policy in guidance to those running the Pre-existing Condition Insurance Plan at both the state and federal levels. . . .
Problem solved, right? Perhaps this problem, but what about the next time a state or agency attempts to sneak abortion funding into a new pot of taxpayer money authorized by health care reform? Without a blanket prohibition on the use of federal funds for abortion or to subsidize insurance plans that cover abortions, there is a constant threat that funds could be diverted for elective abortions.
Therefore, even if HHS follows through on its word with the PCIP programs (and the states comply), this is just the first of what is certain to be a series of problems. Further, HHS could rescind this policy at any time, or courts could interpret abortion coverage in the PCIP program as required in light of the fact that the statute does not prohibit it.
The only way to completely ensure that new federal funds created through HCR will not be used for abortions is to pass a federal law to that effect. Two proposed pieced of federal legislation would accomplish this.
The Protect Life Act
The “Protect Life Act” would essentially correct Congress’ error by adopting the Stupak-Pitts amendment into federal law. It would apply the Hyde Amendment to the health care law in its entirety. The act would ensure that no federal funds authorized under the health care reform law are used to pay for abortions or subsidize insurance plans that cover abortions, prevent any mandate authorities from being used to force insurance plans to cover abortions, and codify strong conscience protection.
The Smith Bill
The Smith bill has not yet been introduced. It is even more comprehensive than the Protect Life Act in that it will establish a permanent government-wide prohibition on taxpayer subsidies for abortion and abortion coverage. For decades, restrictions on the use of federal funds for abortions have been enacted piecemeal and have been contained in appropriations riders (like the Hyde Amendment, which must be renewed annually), regulations (which can be overturned by new administrations), and executive orders (which are the whim of a president). The Smith bill would eliminate the ongoing struggle that we face every year to ensure that federal funds are not used for abortions by enshrining this principle in U.S. statutory law.