Episcopal Oversight

How the Bishops Conference Gets Health-care Legislation Wrong

On May 20, 2010, the Secretariat of Pro-Life Activities of the United States Conference of Catholic Bishops issued a statement supporting H.R. 5111, sponsored by Congressmen Joseph R. Pitts (R-Pa.) and Dan Lipinski (D-Ill.). H.R. 5111 is prolife legislation intended to protect the unborn and the consciences of health-care providers, and it is not surprising that the USCCB should support this bill. Unfortunately, the USCCB used this occasion to attack once again the major health-care legislation that was signed into law in March, the Patient Protection and Affordable Care Act (PPACA). The USCCB continues to misunderstand the provisions of PPACA and contributes to confusion about its content. This analysis is intended to correct the USCCB’s erroneous characterizations of PPACA, and to clarify what the legislation actually says and does.

First, the USCCB letter repeats earlier claims that under the new act federal funds will be used to subsidize health plans that cover abortions. Section 1303(b)(2) of PPACA, entitled “Prohibition of the use of federal funds” states clearly that the premium tax credits and cost-sharing reductions available under PPACA cannot be used by any health plan to pay for an abortion that could not currently be paid for by federal programs under the Hyde Amendment. (The Hyde Amendment allows the government to pay for abortion only in instances of rape or incest, or when the mother’s life is endangered.) For health plans that cover abortion, the abortion coverage must be paid for separately by the enrollee with his or her own funds, and this private premium must fully cover the cost of any abortion not allowed under the Hyde Amendment. This private premium must be kept in a separate account, and that account must be audited by the states. Given the added costs of administering these separate funds, and the way PPACA forces insurers to limit their administrative costs, it is likely that insurers will have little interest in offering such plans.

To claim that PPACA allows federal funds to pay for abortions simply because it provides subsidies to help people pay for health plans that independently—that is, with private funds—cover abortions is as inaccurate as claiming that Medicare and Medicaid funds pay for abortions because they pay hospitals that independently—that is, with payment from other sources—provide abortions. The issue is not whether federal funds pay insurers or providers that independently pay for or provide abortions, but whether federal money can be used to pay for abortions. Under PPACA, federal subsidies cannot be used to pay for abortions. It is illegal.

Second, the USCCB letter claims H.R.5111 is necessary because appropriations under PPACA for community health centers (CHCs) can be used to pay for elective abortions. This statement ignores the plain facts that (1) regulations governing CHCs prohibit them from providing abortions not permitted by the Hyde Amendment (42 C.F.R. § 50.303), and (2) the funds appropriated for CHC’s under section 10503 are not paid directly and separately to CHCs but are rather “transferred to the Secretary of Health and Human Services to provide enhanced funding” for CHCs. These funds will be inextricably commingled with funds otherwise appropriated for the CHCs, and these funds are covered by the Hyde Amendment. Finally, the executive order issued by the president under his constitutional authority to oversee the executive agencies prohibits the use of these funds for abortions not permitted under the Hyde Amendment.

The USCCB letter once again raises the canard that “a long line of federal court decisions” has interpreted similar statutes to fund abortions in the absence of an explicit congressional prohibition. The USCCB has not been able to point to a single federal court decision that has ordered the funding of abortions that were prohibited by a federal regulation and an executive order. Court decisions have required states to fund abortions not prohibited by the Hyde Amendment under their Medicaid programs, but these cases have no relevance to a situation involving a federal regulation and an executive order, to which courts pay much greater deference than they do to state laws. The most closely analogous case, Rust v. Sullivan, 500 U.S. 173 (1991), upheld a federal regulation prohibiting abortion counseling as a permissible interpretation of a federal law prohibiting abortion, even though it went well beyond the law. Similarly, in the case of PPACA, a federal court would uphold the regulation and executive order as permissible interpretations of the law governing CHCs, particularly because CHCs receive funding subject to the Hyde Amendment.

Third, the USCCB letter claims the conscience-protection provisions of PPACA are inadequate. Section 1303(c) of PPACA expressly preserves all federal laws regarding “conscience protection, willingness or refusal to provide abortion, or discrimination on the basis of the willingness or refusal to provide, pay for, cover, or refer for abortion, or to provide or participate in training to provide abortions.” The federal law to which this section refers is the Hyde/Weldon provision, which appears in the annual HHS appropriation bill and prohibits discrimination against individual or institutional providers unwilling to provide or facilitate abortions on grounds of conscience—not only in federal programs, but also in federally funded state and local programs. PPACA does, therefore, protect providers and professionals against discrimination or violation of their conscience, in federal, state and local programs.

The USCCB letter specifically claims that section 1303(d) of PPACA, which states that PPACA does not relieve providers of their obligation to comply with the Emergency Medical Treatment and Active Labor Act (EMTALA), results in a conflict with federal conscience-protection law. In their statement of April 19, 2005, however, the USCCB acknowledged that a conflict between EMTALA and the conscience protections of federal law is not possible. An elective abortion is never an emergency procedure.

From a prolife perspective, there is nothing objectionable in H.R. 5111, but the USCCB is wrong to claim that the bill is necessary to prevent federal funding of abortion and to ensure conscience protections in health reform. Under PPACA, federal funds cannot be used to pay for abortion and the consciences of health-care providers are protected. PPACA is prolife. In its clarifying statement of May 21, the bishops’ conference acknowledged that PPACA “expands health-care coverage, implements many needed reforms, and provides welcome support to parenting women and adoptive families,” moving toward the church’s goal of universal access to health care. States are already enacting laws permitted by PPACA’s provisions that bar abortion coverage entirely from their exchanges. The act extends coverage for dependents up to age twenty-six. It provides tax credits for small businesses that insure their employees, and high-risk-pool coverage for uninsured Americans with pre-existing conditions. In 2014, Medicaid expansions and health-insurance subsidies will go into effect, insuring millions of Americans. Many of these Americans, studies tell us, would die without care. The adoption tax credits created by PPACA are already in effect, helping Americans adopt unwanted children.

Public polling repeatedly reveals that Americans are confused about what the health-reform legislation does. The legislation is long and complicated, and some misunderstanding of the bill is inevitable. It is unfortunate, however, that this confusion continues to be fed by mischaracterizations of the legislation by the USCCB.


Related: A Pattern of Missteps, by the Editors

Crying Wolf, by the Editors

Pro-life, Yes, and Pro-Reform, by the Editors

No Coward, by the Editors

When Bigger Is Better, by J. Peter Nixon

'Abortion Neutral'? by the Editors

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50,000 nuns can't be wrong. The bishops need to sit down and listen.

And so the bishops once again stick out their collective foot and blast away, right after they have stuck that foot firmly in their collective mouth.  Have they no sense that a) they are required to be truthful, and b) that they are destroying what little credibility they have left?  The whole performance is truly unbelievable.  On top of the fact that they left one of their staunchest allies, Bart Stupak, to spin slowly in the wind.  

It appears that the same sort of doctrinaire types which inhabited the former administration now also inhabit the USCCB.

mjc

How naive to believe that the entry of the United States government is the answer to healthcare or is even telling the truth - please note that both our government and the Church have little credibility as to real life issues- tell me what will change for the poor of this country - are they going to build clinics in Appalachia, in Arkansas and in Mississippi with the money so that they can get healthcare - are they going to teach in the classroom with real doctors at an early age how to be healthy and maintain health - does anyone believe this healthcare bill will not cost over two trillion dollars or more, not the amount the government professes -

As an aside, remember when we were told that the "lottery" was the answer to funding education - it was all going to education and what a wonderful world it would be - How's that going? - now you cannot even go inside and pay in cash for gas anymore as it takes 15 minutes standing behind the "gamblers" who spend $20 -$50 on tickets (money that could be used for healthcare) - and this is in the poor section of town - how's education going by throwing money at it?  I guess we should do a lottery to pay for healthcare because it is a big gamble that could bankrupt this country.

One of the main purposes of the government sponsored Health Care Bill was to provide quality and affordable Health Care through government sponsored insurance. One can not make the argument that by including the option to include elective abortion coverage in a government sponsored insurance plan and paying for that option with separate funds, that the insurance plan then is no longer a government sponsored insurance plan.

Last November, Timothy Jost criticized the Stupak amendment on abortion funding, widely supported in the Catholic community, as going “too far,” and he warned against the undue influence of the Catholic Church on public policy: “Let us not become another Iran” (www.politico.com/arena/perm/Timothy_Stoltzfus_Jost_1F801CB1-72F6-470F-89A2-AC72B14A18BA.html).  It is welcome news that he now finds “nothing objectionable” in the new bill the Catholic bishops support (H.R. 5111), which will amend the health care reform law with the Stupak policy.  (For the USCCB’s May 20 letter supporting H.R. 5111 and other background, see www.usccb.org/healthcare.)

Instead of rejoicing in this new common ground, however, he repeats old misrepresentations (and offers new ones) of the law and of the bishops’ position, to argue against a real need for the bill.  Taking his charges in order:

1. First, he still holds wrongly that current laws like the Hyde amendment ban only direct federal funding of particular abortion procedures, and thus that our effort to prevent federal subsidies for overall health plans that cover abortion is some kind of innovation.  It’s true that one can one mean several different things by the phrase “prevent federal funding of abortion.”  One can mean: (a) prevent the traceable and direct use of a federal dollar for a particular abortion procedure; (b) prevent subsidies for benefits packages (e.g., health plans) that include abortion among the benefits one has to sign up for; or (c) prevent subsidies for entire institutions such as hospitals that also “independently” do abortions.  The Hyde amendment and all other current federal laws go as far as (b).  Jost is wrong to think they only do (a), and wrong to imagine that those working to preserve Hyde must really be trying to reach out and do (c).  If he thinks the new law should violate the Hyde policy, while separating abortion funds and other funds WITHIN each plan, because he thinks that’s just as strong as obeying (b), he should argue that.  (It is a hard argument to make: Pro-abortion leaders in Congress accepted such a policy, while fiercely opposing our Hyde policy, precisely because they know the latter is much stronger.)

2. Jost further says health plans receiving federal subsidies will fund abortions “independently” under the new law.  But there is nothing independent about it.  New plans covering abortion will owe their very existence and their fiscal survival to the offer of federal subsidies.  The insurance companies that choose to cover abortion will present it as an integral part of the package, and will advertise only the COMBINED cost of ALL the benefits including abortion.  (Why?  Because the new health law REQUIRES them to bury abortion in the fine print of the benefits summary, and to advertise only this total unified cost – see sec. 1303(b)(3).)  All who purchase such a plan – even if they do so for entirely unrelated reasons relating to their family’s health needs, and even if they did not want abortion coverage and didn’t know it was included – will be forced without exception to pay a distinct fee solely for other people’s abortions.  (Why? Because the law will REQUIRE the insurer to charge “each enrollee” for this “service” actively sought by a relative few – see sec. 1303(b)(2)(B)(i)).  Every enrollee in these plans who is forced by the federal government to pay for other people’s abortions will have only the cold comfort that this mandatory fee is called a premium rather than a tax.

3. The USCCB has previously answered Jost’s claims about the bill’s appropriation of new funds for, among other things, services at Community Health Centers.  Use of these funds for abortion is not prevented by the Hyde amendment (or old regulations implementing Hyde), because this new funding bypasses the Hyde amendment.  (Hyde covers only funds appropriated “in THIS Act” – that is, in the annual appropriations act that Hyde amends, which is not the source of these new funds.)  In the absence of a relevant statutory barrier to using these new funds for abortion, courts will look first to the language of the Community Health Centers statute – and that statute REQUIRES the centers to provide (among other things) “family planning” and “gynecology” services, the same categories that the courts have consistently read in the Medicaid statute to require funding of abortion.  That judicial application of the statute has been blocked in the past (at community health centers as well as in Medicaid and many other programs) only by Congress’s constantly renewed passage of provisions like the Hyde amendment.  No one has claimed before that this statutory mandate can be overridden by mere executive order – not even when Congress’s failure to address this problem in the early 1970s was allowing 300,000 federally funded abortions a year.  But in any case, if H.R. 5111 does only what you see the executive order as trying to do, why not support it?

4. Jost says the health law is already adequate on conscience protection, because it allows existing federal conscience laws like the Weldon amendment to remain intact.  Here he makes the same mistake he made on the Hyde amendment.  Like Hyde, Weldon only covers entities receiving funds from the Act that Weldon amends, the Labor/HHS appropriations act (“None of the funds made available IN THIS ACT,” it begins).  What we need is not language that leaves traditional conscience policies in place where they already were, but language that APPLIES these policies to the NEW funding streams created by the new health care act.  Why not do so?

5. Jost further claims that the USCCB now sees a new conflict between federal conscience law and the federal Emergency Medical Treatment and Active Labor Act (EMTALA).  This is untrue.  As our letter makes clear, we see a potential conflict between federal conscience law and some STATE laws trying to force all health care providers to provide “emergency” abortions. The new health law says that when there is a conflict the state abortion mandate, not the federal protection for conscience, will prevail – which could end the ability of any health provider to practice in accord with Catholic teaching on abortion. Already the state of California has sued against the existing Weldon amendment, claiming that it prevents the state from enforcing its own mandate for “emergency” abortions deemed to serve either life or health.  On March 18 a federal court said this claim is not yet ripe for adjudication.  The conflict needs to be resolved now, as conscience laws will be hollow shells if any state can ignore them simply by defining abortion in various circumstances as an “emergency.” 

Mr. Jost concludes by praising the new health reform law’s positive provisions, including those serving pregnant women and supporting adoption.  Here we agree.  But those provisions are not served by his “all or nothing” stance of insisting that this long and complicated legislation is perfect in every detail and must be inviolable.  That can only feed the conservative call for total repeal.  Let’s address these legitimate concerns now, while retaining all that is good in health care reform.

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About the Author

Timothy Stoltzfus Jost is Robert L. Willett Family Professor of Law at Washington and Lee University School of Law.

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