Changing Law to Protect Human Life, State by State

On Friday the House Rules Committee is expected to report out a rule governing debate on H.R. 3962, the House health care reform bill.  It is likely that this rule will include language called the “Ellsworth Amendment,” after Congressman Brad Ellsworth of Indiana.  This language is being touted as a pro-life amendment.  In reality, the Ellsworth Amendment does little more than tweak the pro-abortion provisions in the House bill.  Below is a list of the items in the Ellsworth Amendment, as well as brief commentary on their impact.

The Ellsworth Amendment:

• Adds the phrase “or other federal funds” to Subtitle C (341)(c)(3), the provision that prohibits the use of affordability credits to pay directly for Hyde-prohibited abortions (Page 1). 

[While supporters of the language will argue that this ensures that no federal dollars will pay for abortion, it does not alter the fact that, in a break from the status quo, affordability credits (government funds) will subsidize private insurance plans that include abortion coverage.]

• Adds the phrase “or other Federal funds used by an Exchange-participating health benefits plan” to Section 303(e)(2), the provision that addresses the “segregation of funds” (which is supposed to ensure that only “private” dollars, not federal dollars, are used to pay for abortions) (Page 1). 

[Again, this provision does not alter the fact that affordability credits will subsidize private insurance plans that include abortion coverage, a break from the status quo.]

• Notes that the segregation of funds will be done in accordance with “generally accepted accounting requirements, circulars on funds management of the Office of Management and Budget, and guidance on accounting of the Government Accountability Office”  (Page 1).

[Whatever accounting mechanisms are used, this does not change the fact that federal dollars will subsidize insurance plans that include abortion coverage.]

• Adds the word “some” to Section 303(e)(1)(B), which requires that every area of the country have a pro-life insurance plan (Page 2). 

[Adding "some" permits pro-life plans to choose among Hyde-permitted abortions they wish to cover, rather than taking an all or nothing approach.]

• Adds a provision to Section 222(e)(1) that prohibits discrimination against insurance plans based on their decisions to cover or not cover abortions (Page 2)

[This “nondiscrimination” provision appears to make explicit what is implicit in the bill; however, what it fails to address is that the bill parts from the status quo by allowing government subsidies to go to private plans that include abortion coverage.]

• Sets up a system whereby private contractors will handle the claims processing for the public option (and will therefore handle segregating the so-called “private” funds used for abortions) (Pages 2-4). 

[The fact that the federal government will farm out the responsibility for subsidizing abortion coverage to independent contractors does not change the fact that the public option will cover abortion.]

The Stupak-Pitts Amendment continues to be the only language on the table in the House that will truly exclude abortion funding from health care reform.  However, it is expected that the Rules Committee will not allow a vote on the Stupak-Pitts Amendment.  It is critical that this language be included in any health care reform bill that passes out of either the House or the Senate.

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Yesterday, the House Rules Committee announced that the “rule” for considering the sweeping health care legislation will encompass the language put forward by Rep. Brad Ellsworth, D-Ind. that the House leadership is falsely describing as pro-life. By allowing the Ellsworth language, House Democratic leaders hope to address the reluctance of pro-life Democrats to vote for the health bill. 

Dr. Charmaine Yoest, President and CEO of Americans United for Life said, “The Ellsworth Amendment will explicitly authorize federally funded abortions in the public option. Putting a pro-life label on the amendment doesn’t change that fact. The only way to ensure that health care reform does not mandate abortion funding and coverage is to include explicit language similar to the Hyde Amendment, such as the Stupak-Pitts Amendment.” 

The Ellsworth proposal does not alter the provisions in H.R. 3962 that explicitly allow federal funding of abortion through the public option, and permit federal subsidies to go to private insurance plans that cover abortion.  The Ellsworth language simply provides details for how funds will be segregated, and that they will be distributed by an independent contractor. 

Americans United for Life’s legal analysis of H.R. 3962 is explained in detail here.

Americans United for Life is the first national pro-life organization in America. In 1980, AUL successfully defended the Hyde Amendment before the U.S. Supreme Court in Harris v. McRae.  Visit AUL Action’s RealHealthCareRespectsLife.com, for background from our legal team about the current health care reform bills threat to the right to life and rights of conscience.

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In her blog entry on The Daily Beast, Dana Goldstein records pro-abortion leader Judy Waxman’s incredible statement that the new House health care bill, H.R. 3962, “leans toward the pro-life position.”  To support this conclusion Goldstein’s entry relies on statements from several abortion rights advocates.  However, the current version of the House bill is neither “pro-life,” nor “abortion neutral.”  H.R. 3962 attempts to mainstream abortion as health care and have the federal government pay for it.  It is a radical departure from current federal law. 

Below are four assertions made in Goldstein’s post followed by AUL’s responses demonstrating the statements are false and misleading.

1. The House bill requires the public-insurance option, expected to cover some 6 million people, to provide abortion primarily in cases of rape, incest, or threats to a woman’s physical health.  That limited language echoes the Hyde Amendment, a rider to the appropriations bill that has passed each year since 1976 and currently prevents federal funding of most abortion for Medicaid patients, government employees, Peace Corps workers, and women in prison.  But because the House health bill actually cements the restriction in law—as opposed to in a rider—some pro-choicers see the provision as a step backward. “It establishes a different baseline,” Waxman said. 

The House bill does not echo the Hyde Amendment’s restrictions.  The language of H.R. 3962 is only “limited” in the sense that on its face the bill mandates only coverage in the public option of those Hyde-permitted abortions (in cases of rape, incest, or life of the mother). H.R. 3962 does not prohibit funding other abortions and in fact explicitly allows the HHS Secretary to include all abortions in the public option. (Section 222(e)(3)). 

H.R. 3962 does establish a different baseline, but not in the way Waxman describes.  It changes the status quo from prohibiting federal funding of abortion (except in narrowly defined categories) to allowing the use of federal dollars to finance all abortions in the public option.  And, since the decision would be made by pro-abortion HHS Secretary Kathleen Sebelius, it is likely that Section 222(e)(3) will be used to extend the abortion funding mandate to cover all abortions.

What will be cemented through H.R. 3962 is exactly the opposite of the Hyde Amendment, which has passed every year for 33 years.  Instead of codifying restrictions on abortion funding, H.R. 3962 codifies an abortion funding mandate.

2. The bill also prevents affordability credits from being used to pay for abortion coverage … Eighty-seven percent of existing private insurance plans cover abortion… After reform, if insurers want to continue to provide such care, the House bill would require them to segregate all government funding from the co-pays individuals pay into the plans. Abortions could only be paid for out of the “private” side of the ledger.

The bill allows private health insurance plans that cover elective abortion to receive government subsidies (Section 222(e)(2)) The bill includes language purporting to segregate “federal dollars” from “private dollars” that are used to pay for abortions (Sections 303(e)(2); 341(c)(3)) – but nothing alters the fact that this provision allows government dollars to go to private plans that cover abortion.

This is not a “pro-life” or even “abortion neutral” provision.  It changes the status quo on federal funds being used towards insurance plans that provide abortion coverage.  In the Federal Employees Health Benefits Program (FEHBP), the government contributes to premiums of federal employees in order to allow them to purchase private health insurance. The Financial Services and General Government Appropriations bill that provides funding for the FEHB program has annually prohibited these government contributions from being used towards insurance plans that cover abortion since 1983 (with the exception of 1993-1995). 

3. In addition, in each state, the health-insurance market must include one plan that does cover abortion, and one plan that does not. But because the vast majority of insurers currently do cover the procedure, pro-choicers view the provision as a step forward for the opposition. “That kind of leans toward the pro-life position,” Waxman said.

The bill does require that there be one insurance company in each region that does not directly reimburse for abortion.  However, calling this measure pro-life leaning ignores the fact that for the first time the government is mandating that there be a private insurance company that does provide abortion coverage in each region. 

Another provision of H.R. 3962 severely limits the extent an insurance company is allowed to be “pro-life.” Sec. 304(d) prevents any private insurance company participating in the Exchange from choosing not to contract with abortion providers. 

4. Adam Sonfield, senior public policy associate at the Guttmacher Institute, which researches reproductive health issues, told The Daily Beast, “Currently, it’s not that we can’t pay for coverage that includes abortions. It’s that we can’t cover abortions. The [Stupak] standard is stricter than the standard in Hyde.”

The “Stupak standard” is not stricter than current federal law.  No federal dollars are used to pay for elective abortions or to subsidize insurance plans that cover abortions, period. That includes Medicaid, the Federal Employees Health Benefits Program, the State Children’s Health Insurance Program, and other programs.   As explained above, insurance plans that include abortion coverage cannot receive government subsidies through the FEHBP.  In other words, federal employees cannot choose plans that include abortion coverage. 

The status quo is that federal dollars do not pay for abortions and that federal dollars do not subsidize insurance plans that include abortion coverage.

Sonfield was correct when he stated “Just because there are a lot more Democrats than Republicans doesn’t mean there are a lot more pro-choice people.”  There are a number of pro-life Democrats in Congress who disagree with their Party’s platform on abortion.  A similar observation can be made about the American public — a majority of Americans identify themselves as “pro-life.” 

It is important to note that an even greater majority of Americans do not support federal funding of abortion.  Opposing federal subsidies for abortion is not just a “pro-life” position. 

H.R. 3962’s abortion funding provisions are not what the majority of Americans want.  They are not what President Obama promised in September when he told a joint session of Congress, “under our plan no federal dollars would be used to fund abortion.”  They are not “pro-life” leaning.

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