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.
“Jost’s response is a model of courtesy, scruple, and analytical sobriety.”
Matthew,
Thank you for making it available.
Yes, Matthew, thanks very much for helping us stay up with this debate.
Archbishop Chaput sees things differently
http://www.catholicnewsagency.com/news/archbishop_chaput_health_care_bill_doesnt_meet_minimum_moral_standards/
Matthew –
May I send a copy of your post to my senator, Senator Landrieu (Vitter is impossible), and to my representative, Rep. Joseph Cao?
I have read Professor Jost’s response to the USCCB’s rebuttal to his previous analysis of the Senate bill and then re-read the USCCB rebuttal. It did not seem to me that Professor Jost’s response actually rebutted the USCCB rebuttal. But, admittedly, that is just an impression. One would have to outline both articles and undertake a very close reading, line by line, to follow the arguments. So for now, I look forward to a further response from at the USCCB.
However, on one issue – whether the appropriation of billions of dollars for health services will find its way to funding abortions – Professor Jost’s plainly fails to rebut the USCCB rebuttal. Before even going back to re-read the USCCB rebuttal, the last three crucial sentences in the second paragraph struck me as weak and naïve:
1.”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.”
Does Jost think really the members of the pro-choice coalition are all stupid? In fact, they go over ever line of the proposed legislation with a fine tooth comb armed with knowledge of how legislation will be interpreted They forgot about the Hyde Amendment? The idea that the omission was an oversight is laughable.
2.”But the fact that these funds will not be allowed to be used for abortion is clear.”
If it is so clear, why the extensive argument? The only thing “clear” is that this is a meaningless bald assertion that begs the very issue that is being disputed. It in no way serves to rebut the USCCB rebuttal.
3.”The cases cited by the Bishops, which interpret earlier law and different regulations under the Medicaid program, have no relevance here.”
This comment from a law professor? – Simply dismiss as irrelevant the USCCB observation that “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”? This claim, like that above claim that “it is clear” that the funds will not be allowed to be used for abortion”, is the kind of answer that would merit a C- on a first year law school exam.
Here again is what the USCCB wrote to rebut Professor Jost initial analysis:
Jost: “The Senate bill, like the House bill, provides that qualified health plans may not be required to provide abortion as an essential service.”
Response: In fact the bills are not identical in this respect. Under the House bill, the federal government may not require these plans to provide elective abortions at all (Sec. 222 (e)); under the Senate bill, the government may not require the plans to provide such abortions as an “essential health benefit” (Sec. 1303 (b)(1)). The difference is that under the Senate bill, the government may require abortion under another rubric, such as the bill’s new, distinct mandate to cover “preventive” services for women (Sec. 2713 (a)(4)).
Jost: “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…”
Response: The Senate bill authorizes and appropriates billions of dollars in 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). (Footnote omitted).
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 provide 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.
Jost: [attempting to rebut the fact cited above]: “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. 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.”
Response: As discussed above, where the funds go to is irrelevant. What matters is what legislation the funds are appropriated by, and whether that legislation is covered by a provision like the Hyde amendment that prevents the funds from being used for elective abortions. In cases where it is not, as is the case here, federal courts have said the funds must be available for
any abortion a physician says is appropriate. This statutory and judicial mandate can be expected to override any preference, however well-intentioned, of the centers or of the Secretary of HHS.
On this issue, the notion that Professor Jost has successfully responded to the USCCB rebuttal of his initial analysis is nonsense.
Michael Kelly: I think you left out Jost’s most parsimonious explanation on the ban on funding for Community Health Centers — namely, that federal regulations forbid it, and have done so since before Hyde.
The federal regulations (42 C.F.R. 50.301, 50.303) that have been on the books since the 1970s and 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 performing abortions except under the same exceptions granted under the Hyde amendment — for cases of rape, incest, or physical life endangerment of the mother.
Moreover, in recent days the Department of Health and Human Services has begun circulating an internal memo reiterating the validity of those regulations and reasserting that President Obama and HHS head Kathleen Sebelius would make sure no funding to CHCs would go to pay for abortions. The New York Times has a copy of the memo:
“There have been concerns that the Senate bill does not include an explicit provision that would subject these new funds to the abortion-related restrictions under the Hyde Amendment,” “Regardless of whether the Senate bill would do so, there have existed for over 30 years regulations that prohibit federal funds from being used for abortion services in programs administered by HRSA and other PHS agencies, except in cases of rape or incest, or where the life of the woman would be endangered…These regulations on their face would apply to these new funds.”
http://prescriptions.blogs.nytimes.com/2010/03/14/obama-administration-pushes-back-on-abortion-claims/?pagemode=print
The extent of the arguments by Jost and others correlates to the amount of misinformation and disinformation that has been put out there by foes of the bill.
Joe McFaul,
The article you link to from CNS was also placed on Firstthings’ website. It really presents no new data or arguments from what I can tell, and is not a response to Jost’s response to a response the response, ah, you get the idea. I know you didn’t mean to suggest it was, but just a clarification.
What bothers me about his CNS piece (and FT), for one, is that he uses “Catholic” in quotes for his opponents. This could be construed as truly insulting, to say the least. Is one’s Catholicism in question if they oppose the Archbishop on this very complicated issue?
Tony
I wish the USCCB would stop digging themselves deeper into this ugly hole. It was clear from the outset that Prof. Jost’s interpretation was correct. It would be better if the USCCB would stop following the lead of the NRLC on this issue. Ironically, in the USCCB response to Jost, they note that among the things they do not dispute is that both bills prevent an insurer from being discriminated against for refusing to cover abortion. But they dismiss this as not worthwhile. Why is this ironic? Because this is exactly the pro-life protection built into the Medicare Adantage expansion that the GOP sponsored and the NRLC endorsed!
http://www.catholicnews.com/data/stories/cns/1001103.htm
Cardinal Francis George, president of the USCCB, in a statement issued late on 15 March, distances the bishops from the statement made several days ago by Sister Carol Keehan, Daughter of Charity, president of the Catholic Hospital Association. Cardinal George’s statement strongly opposes the Senate version of the bill, expresses doubt (to put it mildly) on the reconciliation process, and, it seems to me, on a fair reading of the statement invites (urges) members of the House opposed to abortion to vote against the Senate bill, “until these serious moral problems are addressed.” It is unclear what mechanism the cardinal sees for addressing the problems he specifies in the statement. It seems then that the bishops “regretfully” are stating an unequivocal “non placet” with respect to the bill likely to be voted on late this week.
I think Sister Keehan and her associates have the better argument. The USCCB president appears to find any and all restrictive language in the Senate bill regarding the prohibition of federal monies being spent on abortion incredible.
The NYT story, cited by David Gibson above, reports that “politifact.com, which checks the veracity of statements made by public officials, found there was little truth to assertions by Representative Daniel Lipinski, Democrat of Illinois, that money for community health centers would expand the availability of abortion.”
However, politifact makes this significant qualification to its “finding”:
“Could the money be used for abortions? It doesn’t seem likely based on the comments from the White House, Sebelius, the Congressional Pro-Choice Caucus and the umbrella organization for community health centers. But neither can we say definitively that the scenario laid out by the Lipinski and the National Right to Life Committee could not happen. If you focus on the technical possibilities — which is an entirely legitimate thing to do — who can say whether a court might rule that without a specific prohibition, abortions could be permitted? You can’t fault organizations like the National Right to Life Committee for raising concerns about potential loopholes, even if they seem unlikely. And perhaps language will have to be added to remove any doubt. A White House official saying the president would work with Congress to draft language to make clear that federal funds for community health centers should not be used to fund abortions certainly sounds like an acknowledgement that there is at least room for interpretation.”
http://www.politifact.com/truth-o-meter/statements/2010/mar/09/daniel-lipinski/lipinski-says-senate-health-bill-allows-taxpayer-m/
FYI, my take at PoliticsDaily on the Seante bill and abortion funding:
http://www.politicsdaily.com/2010/03/16/bishops-oppose-health-bill-afraid-it-could-fund-abortions/
Mr. Gibson:
In your response to my previous post you overlooked the following statement in the USCCB’s rebuttal
“As discussed above, where the funds go to is irrelevant. What matters is what legislation the funds are appropriated by, and whether that legislation is covered by a provision like the Hyde amendment that prevents the funds from being used for elective abortions. In cases where it is not, as is the case here, federal courts have said the funds must be available for any abortion a physician says is appropriate. This statutory and judicial mandate can be expected to override any preference, however well-intentioned, of the centers or of the Secretary of HHS.”
See also AUL’s response (http://blog.aul.org/ ) to your Politics Daily article
http://www.politicsdaily.com/2010/03/11/the-senate-bill-funds-abortions-nope-and-its-more-pro-life-th/ :
“… 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.”
Also, in regard to Professor Jost’s assertion “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” I should have also noted the NRLC’s 2/24/10 memorandum that addresses the “oversight” in the “manager’s amendment”.
“The provision in question was added to H.R. 3590 near the end of the Senate’s amendment process, as part of a 383-page Manager’s Amendment unveiled by Senator Reid on December 19. Senator Reid immediately filed a cloture petition on the Manager’s Amendment, preventing consideration of any revisions to it, and severely limiting opportunities for analysis and debate. The Manager’s Amendment was adopted on December 22, and H.R. 3590 passed the Senate on December 24. Buried deep in the Manager’s Amendment was new language making a direct appropriation of funds for Community Health Centers (CHCs) (which are also called Federally Qualified Health Centers, or FQHCs), totaling $7 billion ($7,000,000,000) over five years. (See Sec. 10503 on page 2355 of H.R. 3590.) Because this is a direct appropriation in the health care bill itself, these funds will not flow through the annual appropriations bill for the Department of Health and Human Services. Therefore, these funds would not be covered by the Hyde Amendment. …
There is no other language in H.R. 3590 that would prevent the use of the new funds to pay for abortions performed at Community Health Centers. …
There is no restriction in the current laws authorizing CHCs that prevents these centers from performing abortions. [See 42 U.S.C. 254b and Section 330 of the Public Health Services Act.] Under these laws, CHCs can only use these so-called “Section 330 funds” for purposes within the scope of their grants, but one can assume that grant applications that included (for example) “reproductive services” would not be deemed objectionable under the Obama Administration, and abortions could be subsumed under various other classifications as well. However, until now, these centers have been largely dependent on federal funds that flow through the annual HHS appropriations bill and that therefore have been governed by the Hyde Amendment. As noted above, the $7 billion appropriated for CHCs by H.R. 3590 would not flow through that pipeline and therefore would not be restricted with respect to abortion.
This is not a merely hypothetical concern. There is already an organized effort underway by the Reproductive Health Access Project to encourage Community Health Centers to perform abortions, “as an integrated part of primary health care.” For evidence, see “Frequently Asked Questions About Integrating Abortion into Community Health Centers, Potential Obstacles and Possible Solutions” at http://www.reproductiveaccess.org/getting_started/faq.htm
Indeed, the Reproductive Health Access Project and the Abortion Access Project have produced an “administrative billing guide” to help CHCs integrate abortion into their practices within the confines of existing federal and state restrictions. See “Administrative Billing Guide for Medical Abortion at Facilities that Receive Title X, Section 330, and other Federal Funding,” at http://www.nrlc.org/AHC/ReproductiveHealthAccessProjectAdminBillingGuide.pdf
On February 22, 2010, President Obama released a list of changes that he recommends to H.R. 3590. Among these, he proposed to increase the direct funding for CHCs from the Senate-approved $7 billion to $11 billion. He did not propose adding any restriction on the use of the funds for abortion, even though the fact that H.R. 3590 would allow the use of the CHC funds to pay for abortion had been widely publicized by NRLC during January and February.”
In addition, as you report in your most recent Politics Daily article, Richard Doerflinger of the USCCB
“argued in e-mails to me on Monday that past legal rulings would force the courts to require CHCs to use taxpayer dollars to pay for abortion on demand, in spite of the wording in a new health care law or Obama administration orders. “If HHS tried to rein this in [that is, bar abortion funding], a lawsuit would be filed against HHS by abortions rights groups, claiming to represent the rights of women, and all the law would be on their side,” Doerflinger said.
Doerflinger also argues that the regulations ostensibly barring CHCs from performing abortions expired three decades ago and so could not be used even though the HHS says they are in effect.”
You then cite Professor Rosenbaum response that Doerflinger is “just wrong” because
“federal dollars are subject to the Hyde rules [against abortion funding]. And once you are a Community Health Clinic you cannot do anything that does not comport with Hyde. It’s that simple”.
Sure, “simple” as in Professor Jost’s “clear” – claims that ignore the fact that when litigation is initiated by Planned Parenthood and other abortion providers and pro-choice advocacy groups to bar restrictions on abortion funding, the courts will decide the issue. The mere (and mildly worded) opinion of the Secretary of HHS that “these regulations on their face would apply to these new funds” will not be controlling. The courts will follow the precedent cited by the USCCB, and, as the AUL has written, given the “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.”
The assumption that the members of the pro-choice coalition responsible for the lack of reference to the Hyde Amendment in connection with the $11 billion dollar appropriation are not intent on securing funding for abortion and have not quite purposely drafted the Senate bill with that purpose in mind is hopelessly naïve if not willful blindness.
Allow me to save dotCommonweal readers the time it takes to read Michael Kelly’s repeated quoting and rephrasing of NRLC and AUL press releases: A prochoice party is running the show. Therefore the slightest ambiguity of phrasing in the Senate bill must be understood to provide for the federal funding of abortions. Likewise, any utterance from the leaders of that prochoice party, including the president and the director of Health and Human Services, that claims federal funds will not be used to pay for abortions can be ignored as deceptive.
Michael,
This is a helpful post. I guess my concern is that we are being asked to scuttle a bill based on a political/legal process that we may lose in the future. In addition, if the law is so completely on their side, then is there any way to win this battle in any event? The two paragraphs beginning with Rosenbaum’s response actually give me hope that the CHCs must comport with Hyde (of course, if the law is really all on the other side, can even Hyde hold up?).
Also, is it true that the regulations barring abortions are defunct or not? This is a crucial point, it seems to me. You put it out there, but then it seems Rosenbaum directly contradicts the claim in the next paragraph. Then, you suggest that even if R’s claim about Hyde is true, it won’t stand because the law is all on the other side and we will lose a case ultimately. But if that is true, then the suggestion is that Hyde itself would not suffice, yes? Sorry, I am confused at this point. Nevertheless, it seems to me that to scuttle a bill that would potentially cover 31 million more people in this country for a legal process that may, in the future, if all the direst predictions are met, perhaps lead to CHCs performing abortions is a bit much to swallow.
Tony
What Grant said.
Michael Kelly, by the way, the court rulings the USCCB said would force the government to fund abortions at CHCs in fact are related to Medicaid cases that have no particular bearing here, and in fact relate to the medical exceptions allowed under Hyde.
I worked in Washington DC for ten years and am familiar with this sort of “worst cast scenarioism,” where opponents of legislation come up with increasingly bizzare predictions of how a particular bill could lead to disastrous unintended consequences. The idea that the Senate bill will enable CHCs to perform abortions falls into this category. It comes across as a desperate ploy rather than reasoned legislative analysis.
Jost’s analysis is accurate and compelling. As I and others have argued at length, the Senate language, while different from the House, provides sufficient protection of current abortion policy to meet the USCCB’s stated test that health care reform be “neutral” with respect to current law. What deficiencies remain are not of the magnitude to justify defeating a measure that will extend health insurance to tens of millions of low-income families.
It seems to me, though, that many of the bishops and their lobbyists are increasingly closed to any dialogue on this. Stupak and only Stupak will do. It’s bad enough that the USSCB–for all its protestations to the contrary–is perilously close to becoming a single issue lobby. But its degeneration into a single amendment lobby would be comic if the consequences for the nation’s millions of uninsured were not so serious.
What Morning’s Minion and J. Peter said.
” Is one’s Catholicism in question if they oppose the Archbishop on this very complicated issue?”
Apparently so.
David
The regulations you cited are an implementation of the Hyde Amendment. I believe Obama and Sebelius when they say the exisitng regulations would apply. But regulations can be changed, and in this case HHS is the issuing authority. Interestingly, in their statement they say nothing about not changing them, just that the exisiting ones apply. Given this administration’s tendency to verbal gymanstics are we supposed to trust that the Sebelius HHS will not interpret the new law so as to change these regulations? Besides, if this is so obvious, why did pro-abortion legislators fight so hard to keep strict prohibition language out? Concern over the length of the bill?
Sean, did you read Jost? (Is anyone reading Jost?) His argument, which is more plausible than the worst case scenarioism offered by the USCCBNRLC, is that “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.”
Michael J Kelly, I commend you, as you have put into words exactly the thoughts that I had been thinking in reading the back-and-forth between Professor Jost and the Pro-Life Secretariat.
FWIW, here is my perspective on this issue:
* The principle that the Hyde Amendment is set up to protect is that the Federal government does not pay for abortions. The Stupak Amendment was written to ensure that this would be the controlling principle of any health care reform legislation. The Senate, under the control of the party that consistently and unequivocally is opposed to the pro-life cause, explicitly rejected the Stupak language, and with it that underlying principle. Senate Democrats instead substituted the language that is now in the bill. Given the extremely modest request of pro-life adovcates, including the USCCB, with regard to health care reform legislation – nothing more than that it continue the status quo as represented by the Hyde Amendment – that legislative history cannot fail to set off alam bells. It doesn’t seem likely that a Democratic Senate would stengthen the provisions of the Hyde Amendment, but rather the opposite. Thus, the pro-life community starts from a stance of mistrust, and in my opinion, rightly so.
* As David Gibson and Matthew Boudway rightly point out, there is, nevertheless, a lot to like in the Senate’s pro-life protections. Whatever tricks and traps may exist in the fine print, I would like to believe that this legislation, should it become law, will not represent a major extension of the abortion license, to be paid for with tax dollars (not that our tax dollars actually cover the bulk of government expenditures anymore, but that’s another issue).
* I don’t think that the Pro-Life Secretariat is wrong to point out the deficiencies in the Senate bill. My overall take of their take is that the Senate language opens windows and unseals cracks that the Stupak Amendment kept closed. That doesn’t mean that the wolf will immediately jump into the house, but it makes it more likely that it could happen sometime in the future.
* David G. and Matthew Boudway clearly believe that Professor Jost’s arguments are more persuasive, but it’s not clear to me why that should be so. The differences seem to reside in competing interpretations of the law. It’s not surprising that two attorneys or groups of attorneys would disagree on a law’s interpretation – if attorneys agreed all the time, there would be no need for courts. A layperson like me without much training or experience in the law can’t really make an informed judgment between the two. I wish the attorneys who post and comment here would give us their considered opinions, but my experience with attorneys is that when you’re really eager for an easy-to-understand recommendation is when they grow the most reticent. :-)
If Peter Nixon is right this is devstating for the UCCB. This shows that it is clearly political. Some bishops better rise to the occasion because George and Chaput are leading them down the road to being a non-factor with Catholics and Non-Catholics alike.
Bill, this action will not be blamed on the bishops but on the actions of their Washington Bureaucracy. Conservatives for years railed against the liberal bias in that bureaucracy and how it manipulated the bishops. It is only a short jump from there to railing against the conservative bias in that bureaucracy. I am surprised we have not heard more about disavowing the bishops’ staff already.
Matthew,
The first link you provided is actually to the second memo. Could you please provide a link to the first memo? That would be very helpful.
Thanks,
Peter