House Judiciary Subcommittee on Constitution and Civil Justice Hearing
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A Permanent Ban on Abortion Funding: Long Overdue
H.R. 7 will write into permanent law a policy on which there has been strong popular and congressional agreement for over 35 years: The federal government should not use tax dollars to support or promote elective abortion. n1
Since 1976 this principle has been embodied in the Hyde amendment to annual appropriations bills funding the
Even public officials who take a "pro-choice" stand on abortion have supported bans on public funding as a "middle ground" on this contentious issue - in recognition of the fact that it is not "pro-choice" to force others to fund a procedure to which they have fundamental objections. And even courts insisting on a constitutional "right" to abortion have said that this alleged right "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds." n5 As the
By subsidizing the medical expenses of indigent women who carry their pregnancies to term while not subsidizing the comparable expenses of women who undergo abortions (except those whose lives are threatened),
The Court's only error here was its use of the vague and incoherent term "potential life." The unborn child is actually (not just potentially) alive, unless he or she is made actually (not just potentially) dead by abortion. Later
So secure is this legal and political consensus against public funding of abortion, in fact, that some have assumed it is already fully implemented at all levels of our federal government. For example, some wrongly argued during the recent debate on health care reform that there was no need for restrictions on abortion funding in the legislation, because this matter had already been settled by the Hyde amendment. However, the Hyde amendment itself is only a rider to the annual Labor/HHS appropriations bill, and thus governs only funds appropriated under that particular Act.
The fact is that
Past Federal Action to Ensure a Consistent Abortion Funding Policy
On occasion a gap or loophole has been discovered that does not seem to be addressed by this patchwork of provisions, highlighting the need for a permanent and consistent policy to be applied across the federal government:
- In 1979, Congressman Hyde learned that elective abortions were being funded for American Indians and Alaska Natives through the
- In 1997, it was discovered that some states were using federal
- In 1998,
- The absence of a government-wide law against federal funding of abortion led most recently to the passage of major health care reform legislation that contains at least four different policies on this issue. Section 1303 of the ACA, on health plans in state exchanges, complies with the first sentence of Hyde (against direct and traceable funding of abortion procedures themselves) but violates Hyde's second sentence (against funding health plans that cover abortions). Section 1101, on state high-risk insurance pools, appropriates its own new funds outside the bounds of the Hyde amendment, and allows those funds to be used for abortions or not, depending on a changeable decision by the Secretary of
Three Recent Developments Highlighting Problems in the Affordable Care Act
Three specific developments since the enactment of the ACA highlight some ways in which it allows expanded federal support for abortion, if not corrected by later legislation.
First, in
Second, as the state exchanges for purchasing individual health plans have begun to be implemented, Americans have become more aware of the strange and unprecedented abortion policy that will govern these plans (wherever state law has not intervened to establish a different policy). Each insurance company will decide whether its plan will include elective abortions, for those who receive federal subsidies as well as those who do not; once that decision is made, federal law will demand that every enrollee must help pay for those abortions, notwithstanding any conscientious objection they may have; this mandatory surcharge for abortion will be kept in a separate account from the account used for federal premium subsidies, apparently so it can be said that no "federal tax dollars" are being used for elective abortions; and insurers are forbidden by federal law to make any special effort to inform people that their plan includes such abortions, or to tell them how much they will be paying for other enrollees' abortions. n15
This "separation of funds" scheme is contrary to the policy of the Hyde amendment and parallel laws, which forbid federal subsidies to any part of a benefits package that includes elective abortions. It also violates the spirit of these laws in terms of subsidies for abortion itself. If I find myself explicitly forced by federal law to pay for other people's abortions, as a condition for receiving the health care my family and I need, is it really that important to me whether the law calls the forced payment a "premium" rather than a "tax"?
Some may answer that enrollees can choose a health plan whose provider has chosen to exclude elective abortions. However, the option to do so may be very limited or non-existent for some Americans. The ACA requires that at least one "multi-state plan" offered across state lines must exclude elective abortions; however, that plan need not be offered in all 50 states until 2017. In some states it seems every plan in their exchange will include elective abortions. n16 In these states, Americans who are conscientiously opposed to paying for the destruction of unborn human life through their individual health plans will be forced by the federal government to violate their conscience, or forgo health coverage altogether (and pay a federal penalty for remaining uninsured).
Third, the ACA has had the effect of expanding abortion coverage (and greatly narrowing freedom of conscience on abortion) by requiring members and key staff of
The Benefits of a Clear and Consistent Federal Abortion Funding Policy
Obviously the current patchwork of almost a dozen legislative provisions, most of which must be reapproved each fiscal year, has not always adequately served the will of
If a bill like H.R. 7 had been enacted before the health care reform debate began, that debate would not have been about abortion funding. A major obstacle to support by Catholics and other pro-life Americans would have been removed, and the final legislation would not have been so badly compromised by provisions that place unborn human lives at grave risk.
The USCCB has also supported the Protect Life Act (H.R. 358 in the 112th
Answering Questions About H.R. 7
A number of questions have been raised about H.R. 7, sometimes in the form of charges by groups committed to government support for abortion. These groups have abandoned their earlier slogan of "choice" and instead are committed to "access" - which means maximizing abortions, and using the coercive power of government to enlist the unwilling aid of taxpayers and health care providers who disagree with them. Answers are offered here for some of these questions.
Does H.R. 7 eliminate private coverage for abortion, or forbid people to spend their own money on such coverage?
No. In fact, Sections 304 and 305 of Title I explicitly allow such coverage to be purchased and provided as long as it does not use federal subsidies. Those who want abortion coverage can use nonfederal money to purchase a plan that includes it; or they can receive a federal subsidy to purchase a plan that does not include it, and buy abortion coverage separately with nonfederal funds.
Critics claim that such separate abortion riders will not be offered or will be difficult to obtain. The experience in states that have generally prohibited abortion coverage except by optional rider rebuts this claim. Supplemental abortion coverage is available in these states - in some plans offered by large insurers, choosing this coverage requires a simple check-off. The problem is that almost no woman chooses abortion coverage, which is to be expected in light of the surveys showing that most women oppose it. Abortion coverage is included in so many plans now because it is imposed on women and men by employers and insurance companies without their consent and generally without their knowledge. (In the ICR poll cited earlier, 68% of those who had insurance simply did not know whether their plan covered abortion, though that same percentage would reject such coverage if the decision were up to them.)
What this legislation does is place abortion coverage more in the arena of individual choice for women - an outcome opposed by groups that once claimed to be "pro-choice" and "pro-woman." They prefer a status quo in which insurance companies or employers choose abortion coverage and impose it on others, chiefly because it is cheaper for them than reimbursing for live birth. n20
A more limited and subtle argument has been advanced by Prof.
My response to this prediction is that I hope it is correct. As the
It is well established that providing federal funds for abortions substantially increases abortion rates. In one study by the
Does Title II of H.R. 7 create an unprecedented policy of denying "tax benefits" to abortion?
No, that issue was settled by the ACA. Members of
The ACA debate drew attention to the issue of how our tax system treats abortion, and uncovered some remarkable facts. For example, the individual tax deduction for medical expenses can be directly used to help reduce the cost of an abortion performed for any reason (not just abortion coverage but payments for abortions themselves). n24 This seems a very explicit and direct statement that the government wants to help pay for your elective abortions. Now that this loophole allowing tax support for abortion has been discovered, H.R. 7 is addressing it.
Conclusion
H.R. 7 is a well-crafted and reasonable measure to maintain longstanding and widely supported policies against active government promotion of abortion. It consistently applies to all branches of the federal government the principle that government can encourage childbirth over abortion through its funding power. It merits prompt and overwhelming support by this
n1 In this testimony the phrase "elective abortion" refers to abortions that have long been ineligible for federal funding; in recent years this has included abortions except for cases of rape, incest, or danger to the life of the mother. The term is used here as shorthand for a longstanding federal policy, not as expressing a medical or moral judgment.
n2 CNN/Opinion Research Corporation Poll of
n3 These and other recent polls are summarized in National Right to Life Committee, "Public opinion on 'health care reform' and abortion,"
n4
n5 Maher v. Roe,
n6 Harris v. McRae,
n7 Planned Parenthood v. Casey,
n8 Gonzales v. Carhart,
n9 For more about this and other problems in the final version of the ACA see www.usccb.org/healthcare. The
n10
n11
n12 For a more complete analysis of the executive order's failure to address abortion problems in the ACA, see
n13 This requirement, not found in other parts of the ACA that raise the issue of abortion funding, is at Sec. 1101 (c)(2)(D) of the Act. See Congressional Research Service, "High Risk Pools Under PPACA and the Coverage of Elective Abortion Services,"
n14 USCCB News Release, "Pro-Life Chair Welcomes HHS Exclusion of Abortion from Federal Insurance Program, Calls For Permanent Law,"
n15 For a detailed analysis see USCCB Secretariat of Pro-Life Activities, "Backgrounder: The New Federal Regulation on Coerced Abortion Payments,"
n16 This seems to be true at least in
n17 See Rep.
n18 See: USCCB News Release, "
n19 H.R. 358 was approved by the full House 251-172 on
n20
n21
n22 "In states that provide
n23 This provision still violates the policy of the Hyde amendment by allowing use of these credits to purchase overall health plans that cover abortion. But it did establish the idea that abortions not eligible for federal funding under Hyde should be ineligible for these advanceable, refundable tax credits.
n24 "You can include in medical expenses the amount you pay for a legal abortion."
Read this original document at: http://judiciary.house.gov/hearings/113th/01092014/01092014%20Doerflinger.pdf
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