Jost answers the USCCB’s prolife office
Until today, this memo by Timothy Stoltzfus Jost of Washington and Lee law school, was the best analysis of the Senate bill’s abortion language I had seen. Now the best analysis I’ve seen is his response to the USCCB’s critique of that memo. (Strangely, the USCCB’s critique was posted not on their own Web site but on that of the National Right to Life Committee.) Jost’s response is a model of courtesy, scruple, and analytical sobriety. He looks at every feverish speculation advanced by prolife opponents of the Senate bill and heads it off at the pass. He offers the economic and historical context without which it is impossible to understand what’s really at stake. He offers good prolife reasons to support the Senate bill (now the only bill worth talking about). And all the while he manages, quite remarkably, not to lose his temper with those who have made and repeated dubious claims even after they’ve been corrected.
Here’s something from Jost’s original memo:
The Senate bill, like the House bill, leaves federal funding for other programs, such as the Medicaid, Medicare, and Federally Qualified Community Health Centers subject to the Hyde amendment, as they have been for decades. It provides no funding for new programs that cover abortions, and indeed, specifically provides that funds authorized for the new school-based health center program cannot be used to pay for abortions.
Here’s how the USCCB’s prolife office responds:
The Senate bill authorizes and appropriates billions of dollars of new funding — outside the scope of the appropriations bills covered by the Hyde amendment and similar provisions — to fund services at (for example) Community Health Centers (Sec. 10503). Whether the program itself is “new” is irrelevant. These funds are new, and over the next five years they will be provided without being appropriated in the Labor/HHS appropriations act; therefore they are not covered by the Hyde amendment, which says only that funds “appropriated in this Act [the Labor/HHS appropriations act]” may not be used for elective abortions. Moreover, Community Health Centers are required by statute to proved all “required primary health care services,” defined to include (among other things) “health services related to…obstetrics, or gynecology that are furnished by physicians” or other health professionals (42 USCS § 254b (b)(1)). Federal courts have long held that when a statute requires provision of health services under this or other broad categories, the statute must be construed to include abortion unless it explicitly excludes it. Thus, after the Supreme Court’s Roe v. Wade decision of 1973 and before the first enactment of the Hyde amendment in 1976, the federal government was required to use federal funds to pay for about 300,000 abortions a year, although the Medicaid statute never mentions “abortion.” See, e.g., Planned Parenthood Affiliates of Michigan v. Engler, 73 F.3d 634, 636 (6th Cir. 1996). It follows that the new funds appropriated by this bill over the next five years for these centers will be available for elective abortions, as nothing in this bill (or in any other law) prevents their use for this purpose.
To which Jost replies:
Several other arguments are raised against the Senate bill. Both memos [referring here to an earlier memo issued by the USCCB -- mb] claim that the appropriations for community health centers and the National Health Services Corps are not made subject to the Hyde amendment, and thus will be used to pay for abortions. Community Health Centers provide pre- and post-natal care to one in eight child-bearing women in the United States, and have made it possible for many women to bear children who might otherwise have decided not too. With 15 million more poor Americans being added to the Medicaid roles under the Senate bill community health centers will become even more important.
Community health centers have never provided abortions and have no intention of providing abortions. Indeed, they cannot legally provide abortions. The Federal Regulations, 42 C.F.R. 50.301, 50.303, which date back to the 1970s, prohibit “any programs or projects supported in whole or in part by federal financial assistance, whether by grant or contract, appropriated to the Department of Health and Human Services and administered by the Public Health Services,” from the performance of abortions except for cases of rape, incest, or physical life endangerment of the mother. This includes community health center and the National Health Services Corps, which are both supported by funds appropriated to the Department of Health and Human Services and administered by Public Health Service.
Moreover, funds appropriated for community health centers and the National Health Services Corps under the Senate bill are not segregated funds, they are explicitly enhanced funding that will flow into a pool of funding for these programs that is otherwise subject to the Hyde amendment. Any community health center that attempted to use its funding to provide abortions would be in violation not just of the federal regulations, which have the force of law, but also of the Hyde amendment, as they would have no way to segregate the Hyde-appropriated funds from the funds appropriated by this Act. The failure to explicitly apply Hyde to this funding was likely an oversight in the rush to settle on the wording of the manager’s amendment, as earlier in the bill, funding for school-based health centers and for Indian health services was explicitly made subject to the Hyde amendment. But the fact that these funds will not be allowed to be used for abortion is clear. The cases cited by the Bishops, which interpret earlier law and different regulations under the Medicaid program, have no relevance here
If you still have questions about how the Senate bill would affect abortion funding, please read the rest of Jost’s response.