AUL knows what it knows

Last week I wrote here about a chart put together by Americans United for Life. The organization has responded to my comments here. The controversy about whether the Senate health-care bill funds abortion is complicated, tedious, and important. For those who still have a stomach for it, I answer AUL's response below the break.

In my original post I wrote: "Anyone who follows the arrows can see that no tax money is used to pay for abortions. "

AUL responds: "The chart as a whole demonstrates how tax dollars will be used to pay for plans that cover abortions under the Senate/Obama health care reform bill. Using tax dollars to subsidize insurance plans that cover abortions is a radical departure from existing law the Hyde amendment explicitly prohibits the use of federal funds to support plans that provide abortion. The language of the Hyde amendment underscores the long-held understanding that subsidizing plans that provide abortion is tantamount to supporting abortion with federal funds. This is explained in more detail below."

If by "tantamount to"AUL means "the same thing as," then its "long-held understanding" is a serious misunderstanding. If AUL means anything else, then it is once again dodging the question. Obviously, by prohibiting the federal government from subsidizing plans (for government employees) that cover abortion, the Hyde Amendment also prevents the government from directly paying for abortions. It does not follow from this, however, that any piece of legislation which allows the government to subsidize private health plans that cover abortion must thereby allow the government to pay for abortions. And this is the main question at issue here. We all agree that the Hyde Amendment has been a good way to keep taxpayers from having to fund abortion, but there is no reason to suppose it is the only way to do this. If there are other ways, designed for other circumstances, then we should welcome them. AUL's own chart shows that there is at least one other way, the one used in the Senate bill. As prolifers, our overriding commitment is to a principle, not to any particular policy that embodies it. It's time to stop fetishizing the Hyde Amendment, which is, in any case, a temporary and partial solution to the problem of abortion funding. The Hyde Amendment does not prevent the federal government from giving tax breaks to businesses that insure their employees even if the businesses choose a health plan that includes abortion coverage. Since a tax break is an indirect subsidy, this means that the federal government already subsidizes plans that cover elective abortion. Nor does the Hyde Amendment prevent the federal government from supporting Medicaid, a program that, in some states, pays for elective abortion. The amendment requires only that Medicaid use state money rather than federal money to pay for it. This arrangement is, in principle, very similar to the one in the Senate bill that would segregate all federal funding from the private insurance accounts that would be used to pay for elective abortions.

I wrote: "Nor is anyone forced by the Senate Bill to enroll in a plan that covers abortion. Those who do enroll in such a plan will have to pay a separate premium that goes into a segregated fund for abortion payments.... According to the chart, enrollees would be required to pay the surcharge 'even if [they] object or never plan to have an abortion.' This is true, just as its true that many who object to abortion and/or never plan to have an abortion (who does?) already pay for abortions through their health-insurance premiums. If people now want to avoid this, they can, but then so could anyone under the system illustrated by the chart: see the big gray box that says, 'Enroll in exchange plan that does not cover abortion.'"

AUL responds: "No individual should have to pay for another person's abortion in violation of his/her own conscience. However, that is exactly what happens when pro-life individuals must pay into an insurance plan that covers abortions. It is disingenuous to claim that individuals who do not want to pay for abortion coverage can choose an insurance plan that does not include it. If John Doe works for XYZ, a small business, and XYZ decides to enroll John and the rest of its employees in an insurance plan that includes abortion coverage in an exchange, John and his coworkers will be forced to pay the surcharge. It would be prohibitively expensive for them to do otherwise.

"It is true that some individuals who object to abortion currently pay for abortions through their insurance premiums. Some are just as trapped in the current system as John Doe would be trapped in the new system, and that is a tragedy. However, it is fundamentally offensive for the government to institute a system in which pro-life Americans, or their employers on their behalf, would have to write a separate premium check to cover elective abortions."

Here AUL's characterization of theSenate bill wanders very close to outright falsehood. Under our current system, the choice for many prolifers is between accepting an employer-based health plan that covers abortion and going without health insurance altogether, since, without support from the government, manycannot afford the more expensive individual plans currently available. (If you are young and healthy, you may be able to afford an individual plan with meager coverage and a high deductible. If you are rich...well, none of this matters if you are rich.) Under the Senate bill, anyone who doesn't want an employer-based plan that covers abortion would have the option to use the new state-run exchanges to buy a plan that doesn't cover it; and if anyone coudn't afford such a plan on her own, the federal government would help her to pay for it. How any prolife organization can deny that this would be an improvement on the status quo is a mystery to me. It would spring millions of prolife Americans from a trap our employer-based insurance system has caught them in.

I wrote: "The Senate Bill would not allow insurance exchanges to offer only plans that cover abortion."AUL responds: "Our concern is not simply that prolife insurance companies might be shut out of insurance exchanges; our concern is that under mandate authorities in the bill, all private insurance companies could be required to cover abortion, regardless of whether they participate in the exchanges. Specifically, an amendment added to the Senate health care reform bill on December 3, 2009 (sponsored by Sen. Mikulski (D-MD)) in pertinent part, requires group health plans and health insurance issuers offering group or individual health insurance to provide coverage for and not impose cost sharing requirements on 'preventive care' for women 'as provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA).

"While this amendment does not explicitly require abortion coverage, it also fails to exclude it. This concern was raised during the debate over the amendment, and Senator Murkowski (R-AK) offered an amendment that would have prevented the inclusion of abortion; however, her amendment was defeated. The HRSA could categorize abortion as 'preventive care,' and would therefore recommend coverage for abortion by all private plans. There commendation would force private plans to offer abortion coverage.

"The Stupak Amendment would prohibit this, and the failure to include that prohibition in the Senate bill is another reason why the language is defective."

Reading this, one might imagine that the only difference between the Mikulski and Murkowski amendments was that the latter would have explicitly excluded abortion while the former does not. In fact, the Murkowski amendment would not have required health insurers "to provide coverage for [--] and not impose cost sharing requirements on [--] 'preventive care'" for women. That was why most Democrats opposed it. The main issue here wasn't the definition of "preventive care," but the responsibility of insurance companies to cover the whole cost of that care. Don't believe me? Here's what the advocacy affiliate of the American Cancer Society wrote at the time:

Cancer patients and survivors are opposing the amendment to health care reform legislation offered by Sen. Lisa Murkowski (R-AK) because it would not ensure no-cost preventive services for women. Eliminating co-pays, deductibles and other cost sharing for preventive services is essential to expanding access to mammography and other life-saving screenings and preventive services.

AUL would like us to believe that whatever the Mikulski amendment does not explicitly exclude it implicitly includes. They can believe this if they want to, but the context of the Senate debate makes it clear that for the purposes of this legislation "preventive care" for women means what most people take it to mean. According to the New York Times, Senator Mikulski said the services her amendment was intended to protect include "screenings for breast, cervical, ovarian and lung cancer, heart disease and diabetes, as well as postpartum depression and domestic violence." Is it conceivable that prochoice politicians could later expand the definition of "preventive care" to include abortion? Yes, I suppose it is. Is it politcally possible now—will it be politically possible anytime soon? No. It would be political suicide, an egregious example of bad faith that would disgust everyone but a few abortion-rights activists.

I wrote: "The double asterisks tell us that 'if the Hyde Amendment is removed from LHHS approps, affordability credits could be used to directly pay for abortions,' but there is no reason to suppose that the Hyde Amendment will be removed from LHHS appropriations, apart from thepresumption that prochoice politicians are all necessarily sneaks and liars."

AUL responds: "It is incredible to claim that 'there is no reason to suppose that the Hyde Amendment will be removed from LHHS appropriations.' Pro-abortion organizations are bent on eliminating the Hyde Amendment, and many of the politicians they support are equally committed to the goal. It is not cynical to see the carefully written abortion language in the Senate bill as the first step in a plan to eliminate any restrictions on federal funding for abortion.

Not cynical, maybe, but probably paranoid. If AUL really believes that the time is ripe for prochoice politicians to put an end to the Hyde Amendment, then it has badly misread the political climate in Washington (almost as badly as when it predicted that if Obama was elected president, FOCA would be a sure thing).There would be hell to pay if the Hyde Amendment were voted down next year, or the year after that, or any time in the forseeable future. Recent surveys suggest that Americans are more prolife now than they've ever been since Roe. The prolife community needs to take advantage of that momentum rather than undermining it by associating itself with false alarms and careless misconstruals of new legislation.

AUL continues: "The authors of the Senate/Obama language could have explicitly stated that affordability credits (and other funds in the bill, for that matter) cannot be used to pay for elective abortions. That is how the abortion funding ban is written in the Stupak amendment to the House bill. Instead, the Senate bill provides that affordability credits cannot be used to pay for those abortions that are currently prohibited by the Hyde Amendment. In other words, if the Hyde Amendment an appropriations rider that must be renewed annually were not included yearly, abortion would be covered by the affordability credits under the Senate/Obama bill (which would by then be law).

"One must remember that Democratic leadership and the media claimed at the beginning of this debate that the Hyde Amendment would not be affected by health care reform, surely knowing that this fact was irrelevant since the funding mechanisms in the bills circumvented the Hyde Amendment (and do so to this day)."

AUL can't quite make up its mind. One moment it's telling us the Senate bill is unacceptable because it depends entirely on the Hyde amendment, which is about to be eliminated by the Democrats; the next moment it's telling us that the bill's funding mechanisms circumvent the Hyde amendment, making that amendment irrelevant to the controversy. It's true that the Senate bill anchors itself to the Hyde Amendment, and that if the amendment were ever discontinued, the bill's prohibition of funding for elective abortion would become a dead letter. It would certainly be better—and it might still be possible—to define"elective abortion" without reference to the Hyde amendment so that theSenate bill's restrictions on abortion funding are not contingent on the amendment's survival. It's worth recalling here that the prolife organizations started out by demanding that health-insurance reform be "abortion-neutral"—that is, that it preserve the status quo. The status quo is that the ban on federal funding for elective abortion has to be renewed every year, and that will still be the case if the Senate bill passes.

I wrote: "Finally, the triple asterisks inform us that 'federal funding of insurance plans that cover abortions is a radical change from existing law.'...One reason the federal government has never before funded insurance plans that cover elective abortion is that it has never had to fund insurance for as many people as would receive affordability credits under the Senate Bill. You cannot just extend the Hyde Amendment to the new private-insurance exchanges without also translating it into a new legal structure. The Stupak Amendment does this rather nicely."

AUL responds: "We agree that a new structure is needed to incorporate the principles of Hyde into the new system, which is why we support the Stupak language and oppose the Senate bill that does not include Stupak. The Stupak amendment and our position is reflected in current federal law. The Federal Employees Health Benefits Program (FEHBP), under which federal employees choose benefits, is modeled on the Hyde Amendment and does not permit one of those choices to be insurance plans that cover abortions."

That's fine, and beside the point. I support the Stupak language, too. What I don't support is the groundless claim that the Senate bill's segregation-of-funds system is unacceptable just because it departs from precedent.

I wrote: "Groups like Americans United for Life scare us with claims about what the Democrats health-insurance reform will do, and then, when asked for an explanation, fall back on hedged predictions about what it could do if this or that also happened even when this and that seem quite unlikely."

AUL responds: "It is indisputable that when legislation relating to health care does not explicitly exclude abortion coverage or funding, administrative agencies and courts will include it.

"Congress has passed the Hyde Amendment in LHHS appropriations each year since 1976, because the administrative agency administering Medicaid began paying for over 300,000 abortions a year.

"In 1996, in Planned Parenthood v. Engler, the Sixth Circuit held that abortion 'fall[s] within several of Medicaids mandatory categories of care' (family planning, outpatient services, inpatient services, and physician services) and that a state law that restricted funding for abortion to those necessary to save the mothers life conflicts with the 'mandate.'[1] Therefore, if Congress does not explicitly prohibit states from funding certain abortions with Medicaid (as Congress does through Hyde), states must fund them."

This is just wrong. Congress does not prohibit states from funding certain abortions with Medicaid; it prohibits states from using federal money for certain abortions. To read AUL's propaganda, you would guess that the Hyde Amendment solved every problem Roe created. AUL seems to have forgotten that millions of prolife Americans now pay state taxes that fund abortion services, and that millions of prolife Americans now pay for abortions through their insurance premiums, often without knowing it—and without being able to afford an alternative plan.

If the people at AUL want to argue that no member of Congress who's really prolife can vote for the Senate bill, it is not enough for them to claim that this bill is worse for the unborn than the House bill: they must also claim that the Senate bill is worse than the status quo—that it's better not to give prolife citizens the wherewithal to opt out of employer-based health plans that cover abortion; that it's better not to increase funding for health centers that provide pre- and post-natal care to the poor; and, finally, that it'sbetter not to cover the many women in this country who are afraid of getting pregnant partly because they don't think they can afford health care for themselves and their families.

I understand that AUL is a lobbying group, and that, for the purposes of lobbying, a plausible falsehood is often as useful as the truth. But crying wolf to bully politicians and scare donors into generosity is always a dangerous game. If the House passes the Senate bill and the terrible things AUL predicts don't happen, the organization will find it harder to get the attention of ordinary prolifers when it have something useful to say, as it often does.

Matthew Boudway is senior editor of Commonweal.

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