A Pro-Life Look at the Health Care Reform Bills Currently in Congress

Revised October 12, 2009

Introduction

In this Memorandum, we review provisions of the health care reform bills before Congress that implicate four areas:  (I) abortion funding and coverage, (II) freedom of conscience, (III) the curtailment, withdrawal, or denial of effective life-sustaining treatment, and (IV) end of life issues.  Our examination includes an analysis of such provisions in H.R. 3200, the Senate Health, Education, Labor and Pensions (HELP) bill, and the Senate Finance bill, the three bills before Congress as of October 12, 2009. 

I.                   Abortion Funding and Coverage

All three versions of health care reform currently before Congress mandate abortion funding and coverage through express provisions in the bills.  This mandate was magnified by the rejection of key pro-life amendments in all five of the committees of jurisdiction (House Ways and Means Committee, House Labor and Pensions Committee, House Energy and Commerce Committee, Senate Health Education, Labor and Pensions (HELP) Committee, and the Senate Finance Committee).  Furthermore, without express language prohibiting abortion funding and coverage, courts and administrative agencies will interpret health care reform to include it, based on prior interpretations of Medicaid’s “Mandatory Categories of Care.”  In addition, the Hyde Amendment, as added yearly to HHS Appropriations, is insufficient to prevent abortion funding and coverage under the health care bills.  Therefore, abortion funding and coverage must be explicitly excluded.

A.     Express Abortion Funding and Coverage in Health Care Reform Bills

1.      H.R. 3200

The House bill, H.R. 3200, delegates to the Health Benefits Advisory Committee the task of determining mandatory minimum benefits that any private or public health care plan must offer to participate in the Health Insurance Exchange (See Division A, Title I, Subtitle C). The House Energy and Commerce Committee approved an amendment offered by Rep. Lois Capps (D-Calif.) which prohibits the Health Benefits Advisory Committee, the Secretary of HHS, and the Commissioner from mandating coverage of abortion.  However, the Capps amendment itself mandates abortion coverage.

The Capps amendment permits the Secretary of the Department of Health and Human Services (HHS) to include abortion as a mandatory minimum benefit in the new public health care plan, and requires taxpayer funded abortion through the provision of affordability credits for plans that cover abortion (an accounting system is supposed to prevent federal dollars from paying for abortion itself; however, the government is still subsidizing insurance plans that cover abortion). The current Secretary of HHS, Kathleen Sebelius, is pro-abortion and would certainly include abortion in the plan, allowing for immediate federal funding of elective abortion coverage. The provision also requires that all areas of the country contain one private plan that covers abortion.[1]

In addition, H.R. 3200 allows states to cover “family planning services” under Medicaid. (See Sec. 1714). The definition of “family planning” in the bill comes from Sec. 1905(a)(4)(C) of the Social Security Act which defines “family planning” services as those “family planning services and supplies furnished (directly or under arrangements with others) to individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies.” Given prior court and administrative interpretations of “family planning” to include abortion, this is another means by which an abortion mandate will be read into H.R. 3200.

2.      Senate HELP Bill

The Senate HELP bill delegates to a “Medical Advisory Committee” (see Sec. 3103) the role of determining which minimum benefits any private or public health care plan must offer.  It is expected that this unelected administrative committee, which will be appointed by President Obama’s administration, will decide that abortion merits mandatory inclusion in any health care plan offered.[2] Were this to occur, private plans would be forced to offer coverage for abortion in order to participate in the Health Insurance Exchange that is established by the bill.  Further, taxpayers may be forced to subsidize abortions under a possible public health care plan.

An amendment by Sen. Mikulski (D-Md.) that was accepted by the Senate HELP Committee will require insurers to cover “essential community providers…that serve predominantly low-income, medically under-served individuals.” Sen. Mikulski explained the amendment as providing for “any service deemed medically necessary or medically appropriate.” She acknowledged that Planned Parenthood will fall into this category of “community providers” and will therefore be included in health insurance networks under the bill.  Planned Parenthood’s inclusion will certainly lead to additional federal funding of abortion, as was evidenced by Sen. Mikulski’s refusal, at Sen. Hatch’s request, to include specific language in the bill excluding “abortion services” from “medically necessary or medically appropriate” care.[3]

3.      Senate Finance Bill

Senator Max Baucus’ (D-MT) Finance Bill does not include a public plan, but provides six billion dollars for the establishment of health insurance cooperatives which are not prohibited from covering abortion or subsidizing plans that cover abortion.   Also, at least one private plan in each premium rating area must provide coverage for abortion.  The Baucus bill allows tax-credits and cost-sharing credits to be applied to plans that pay for abortion, provided an accounting system is employed to label the funds used to pay for abortion as “private premium dollars,” preventing the use of government subsidies to pay directly for abortions.[4]   However, as with the Capps Amendment, this system does not alter the fact that the government will be funding insurance plans that cover abortion, in a departure from current practice.

B.     Pro-Life Amendments Rejected

1.      H.R. 3200

Members of the three House committees of jurisdiction offered amendments (1) to prohibit the inclusion of abortion coverage from the required basic benefits that any government or private plan must offer, and (2) to prohibit federal funding of abortion. However, all these amendments were defeated.

House Ways and Means Committee

            The amendment offered by Rep. Sam Johnson (R-TX) to prohibit abortion coverage failed by a vote of 18-23. 

The amendment offered by Rep. Eric Cantor (R-VA) to prohibit abortion funding failed by a vote of 19-22.

House Education and Labor Committee

            The two amendments offered by Rep. Mark Souder (R-IN) to prohibit abortion coverage and funding failed by votes of 19-29. 

House Energy and Commerce Committee

The amendment offered by Rep. Stupak (D-MI) and Pitts (R-PA) to prohibit abortion funding failed by a vote of 27-31. 

Perhaps the clearest example that Congressional leadership intends these bills to mandate abortion coverage occurred on July 30.  Rep. Pitts and Rep. Stupak offered an amendment to prohibit abortion coverage. On the initial vote, the amendment passed by a vote of 31-27. However, because he did not have the votes present to defeat the amendment, Chairman Henry Waxman (D-Calif.) voted in favor of this amendment on the initial vote so that a re-vote would be possible. (House rules allow the chair to reconsider an amendment if the chair originally voted in favor.) When the amendment was subject to a re-vote, Chairman Waxman and Rep. Bart Gordon (D-Tenn.) changed their votes to No, defeating the amendment 30-29. In addition, Rep. Zack Space (D-Ohio), who was not present for the initial vote, voted no on the amendment for the revote.

2.      Senate HELP Bill            

In the Senate HELP Committee, pro-life amendments were universally defeated as well, with only Senator Bob Casey (D-PA) crossing party lines to support them.  These included amendments offered by:

Sen. Mike Enzi (R-Wyo.), that would have prevented taxpayer funding of abortion (see amdts. 276 and 277) and an amendment which would prevent abortion clinics from being eligible for federally qualified health center grants(amdt. 275, See sec 172 of the bill).

Sen. Hatch (R-Utah), that would prevent tax-funded abortions unless the life of the mother is endangered (amdt. 210), or unless the pregnancy is the result of rape or incest (amdt. 227).

Sen. Coburn (R-OK), that would have ensured no abortion mandates (amdt. 270), prevented abortion clinics from being eligible for federally qualified health center grants (amdt. 273) and prevented the invalidation of state laws that regulate abortions (amdt. 272). His amendments failed 12-11.

Sen. Pat Roberts (R-Kan.), that would have prevented the invalidation of state laws regulating abortion (amdt. 204). It likewise failed 12-11.

3.      Senate Finance Bill

The Senate Finance Committee also defeated an amendment that would have added explicit language prohibiting federal funding and coverage of abortion.  Senator Hatch (R-UT) offered an amendment (#C14) that would have prohibited the authorization or appropriation of federal funds for “elective abortions and plans that cover such abortions,” with an exception for rape, incest, or the life of the mother.  The amendment also clarified that insurance companies could choose to offer separate, supplemental policies to cover elective abortions.  Such policy would need to be completely separate and paid for entirely by the individual choosing the policy.

The amendment failed 13-10, with Senator Snowe (R-ME) crossing party lines to vote against the amendment, and Senator Conrad (D-ND) crossing party lines to support the amendment.

C.     Courts Interpret “Mandatory Categories” of Care to Include Abortion

In Planned Parenthood v. Engler, 73 F.3d 634 (6th Cir. 1996), a U.S. Court of Appeals held that abortion “fall[s] within several of Medicaid’s mandatory categories of care” and that a state law that restricted funding for abortion to those necessary to save the mother’s life conflicts with the “mandate” of Medicaid. Id. at 637. The court held that “under Medicaid, certain categories of medical care are mandatory and therefore must be provided by participating states when a physician certifies that the care is medically necessary to the patient…” The court concluded that “the mandatory categories of care” included “inpatient hospital services,” “outpatient hospital services,” “other laboratory and X-ray services,” “nursing facility services” “early and periodic screening and diagnosis for individuals under the age of 21,” “family planning services” and “physician services furnished by a physician.” Though “abortion” is not explicitly named in any of those services, the court broadly concluded, “abortion fits within many of the mandatory care categories, including ‘family planning,’ ‘outpatient services,’ ‘inpatient services,’ and ‘physician services.” See also Hope Medical Clinic v. Edwards, 63 F.3d 418 (5th Cir 1995); Little Rock Family Planning Services v. Dalton, 60 F.3d 497 (8th Cir. 1995), cert. denied, 116 S.Ct. 777 (1996); Hern v. Beye, 57 F.3d 906, 910 (10th Cir. 1995), cert. denied, 116 S.Ct. 569 (1995).

The above referenced judicial interpretation of Medicaid — whereby abortion is included within broad categories of “medically necessary” services — will certainly be applied to any federal statute involving health care reform.

D.    Bypassing the Hyde Amendment Through Back Door Spending Authority

The Hyde Amendment, a yearly “rider” to the Labor, Health and Human Services (LHHS) Appropriations bill, prohibits the use of taxpayer money for abortion through the Medicaid program. The Hyde Amendment is not permanent law; it must be introduced and approved each year in order to prohibit taxpayer money from financing abortion.

However, even if the Hyde Amendment were to remain intact legislatively, the funding mechanism employed by Congress to pay for the trillion dollar health care reform effort circumvents the Hyde Amendment, rendering it inapplicable.

Instead of following the normal path that authorization bills follow, in which the authorizers present completed legislation to the appropriators in order to fund the project, H.R. 3200 self-appropriates by funding new programs through a Trust Fund created specifically for that purpose. See H.R. 3200, Sec. 207 (c)(2). Referred to as “back door spending authority”, this tactic bypasses the appropriations committee in order to obtain funding for its new spending. 

The Senate Finance Committee bill provides a refundable tax credit to be used for purchase of health insurance through the state exchanges for individuals up to 300% of the federal poverty level. The premium tax credit will be refundable and payable in advance directly to the insurer. The Treasury will pay the premium credit amount to the insurance plan in which the individual is enrolled.[5]  The Hyde Amendment will not apply toward the tax credits because the Baucus bill bypasses the Appropriations process.  Funding for the tax credits will not depend upon the yearly Appropriations process; therefore, Hyde does not apply.

II.                Freedom of Conscience in Health Care Reform Bills

 

A.     H.R. 3200

H.R. 3200 currently contains two conscience clauses. Reps. Pitts, Stupak, and Lee Terry (R-Neb.) drafted a conscience clause which the Energy and Commerce Committee passed by voice vote, and Rep. Capps also included a conscience clause in the amendment she successfully offered on July 30.

The Stuapak-Pitts Amendment mirrors existing law, i.e., the clear protections for those who oppose abortion which are provided annually through the Hyde/Weldon conscience amendment (that must be added to an appropriations bill annually).  It prohibits federal, state, or local governments that receive funds under H.R. 3200 from subjecting any health care entity to discrimination “on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” 

 

By contrast, the Capps Amendment prohibits health insurance plans participating in the Exchange (not government entities) from discriminating “against any individual health care providers or health care facility because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.”  In other words, this provision protects the right of conscience for abortion providers, and would therefore require pro-life insurance companies to contract, against their conscience, with abortion providers.

B.     Senate HELP Bill

The late Sen. Ted Kennedy (D-MA) offered an amendment on July 13 to the HELP bill (amdt. 205) which would ensure that no health care provider or entity is excluded from contracting with an insurance plan participating in “the Gateway” (the HELP bill’s health care exchange framework) on the basis that the provider or entity refuses to perform abortions if performing abortions would be contrary to the religious or moral beliefs of the individual or entity. This amendment was accepted. The scope of the Kennedy amendment is limited however. It does not cover providers who refuse to pay for or refer patients for abortion services. In addition, the amendment provides an exception for “cases of emergency,” which is undefined and can be stretched to fit almost any situation, effectively stripping providers of any protection the amendment may have offered them. Medical providers need true rights of conscience protection and an ability meaningfully to object to performing abortions.

Sen. Coburn offered an amendment (a codification of the Hyde/Weldon conscience amendment that must be added to an appropriations bill annually) to ensure that health care providers are not forced to participate in abortions or discriminated against because they choose not to do abortions (amdt. 246). The Coburn amendment was defeated.

C.     Senate Finance Bill

The Senate Finance Bill includes a conscience provision that mirrors the Capps Amendment in H.R. 3200.  Like the Capps Amendment, the Senate Finance Bill would also protect abortionists from discrimination, thereby forcing pro-life insurance companies to contract with the abortionists. 

Senator Orrin Hatch offered an amendment (#C13) that would have mirrored the Hyde/Weldon conscience amendment (that must be added to an appropriations bill annually).  However, it was defeated 13-10, with Senator Snowe (R-ME) crossing party lines to vote against the amendment, and Senator Conrad (D-ND) crossing party lines to support the amendment.

III.             Curtailment, Withdrawal, or Denial of Effective Life-Sustaining Treatment

All of the versions of health care reform expand upon the use of Comparative Effectiveness Research (CER), which is used to compare the benefits and harms of methods to prevent, diagnose, treat, and monitor a clinical condition and improve delivery of health care, without including language that sufficiently ensures that the results of CER will not be used to mandate or encourage the withdrawal or curtailment of effective life-sustaining treatment for the terminally ill, the chronically ill, or the permanently disabled.

CER could become a means of advocating for the least expensive treatment at the expense of respect for life. With cost as the only driver, the elderly, sick, and disabled may find their options for care severely limited.

 

A.     H.R. 3200

Section 1401 of H.R. 3200 establishes its own version of a CER entity, the Center for Comparative Effectiveness Research, within the Agency for Healthcare Research and Quality (AHRQ). The entity is funded by a CER Trust fund, a combination of appropriations and a per-capita fee on Medicare and private insurers, described in Sec. 1802 of the bill. The Center would conduct, support, and synthesize research on outcomes, effectiveness, and appropriateness of health care services and procedures. An independent CER Commission would oversee the activities of the Center.

B.     The Senate HELP Bill

The Senate HELP bill also establishes a comparative effectiveness entity in Sec. 937 called the Center for Health Outcomes Research and Evaluation. The bill states in Sec. 937 (h)(1) that “Center reports and recommendations shall not be construed as mandates for payment, coverage, or treatment.” However, nothing in the current bill prevents the results of comparative effectiveness research (CER) from being used to deny treatment.

Likewise, Sec. 2707 of the HELP bill requires that insurers develop and implement a reimbursement structure for making payments to health care providers that provides incentives for use of evidence-based medicine and best clinical practices. (See Sec. 2707 (1)(C)).

Also, the Senate HELP bill permits a Medical Advisory Council to determine a minimum set of health care benefits that will be required under all public and private plans. The Council will report to the Secretary of Health and Human Services.

C.     Senate Finance Bill

The Senate Finance Committee bill establishes the Patient-Centered Outcomes Research Institute (the “Institute”) as a private, non-profit corporation which would conduct research and evidence synthesis and disseminate their research findings. In addition, the Institute would, among other things, identify and carry out research priorities, appoint advisory panels, provide for a peer-review process for primary research, and submit annual reports to the Congress, the President, and the public.

Importantly, the Senate Finance Committee bill does not tie the results of the CER studies to reimbursement.  Even so, concerns remain because three amendments that would have explicitly prevented CER from being used to mandate or encourage the withdrawal or curtailment of effective life-sustaining treatment to the elderly, terminally ill, chronically ill, or permanently disabled were defeated (see Memo Sec. D(3) below).

Also, the Senate Finance Committee bill actually amends the American Recovery and Reinvestment Act (ARRA) and its CER framework by incorporating the ARRA’s CER Coordinating Council into the new Institute’s governance and requiring the Coordinating Council of the ARRA to coordinate its activities with the Senate Finance Committee’s CER Institute.

To fund the CER Institute, the Senate Finance Committee bill establishes a CER Trust fund, funded by general monies from the treasury and a tax on health insurance policies. $1.27 billion would be transferred to the Trust Fund through FY2019. Also, the bill would impose a fee of $1 in FY2013 and $2 in FY2014 through FY2019, on each health insurance policy in the United States multiplied by the number of lives covered under that policy. This fee would sunset after FY2019.

D.    Pro-life Amendments

1.      H.R. 3200

While several pro-life amendments to the CER provision in H.R. 3200 were accepted in the Energy and Commerce Committee mark-up, others were defeated, as were all of the pro-life amendments to the CER provisions offered in the other House and Senate Committees.  Because five, distinct versions of health care reform were reported out of the five committees of jurisdiction, there is no guarantee that the final bill will include the pro-life provisions added in Energy and Commerce.

Energy and Commerce Committee

An amendment offered by Representatives Donna Christensen (D-VI), Jay Inslee (D-WA), Greg Walden (R-OR), and Fred Upton (R-MI) during the Energy and Commerce Committee markup would have made it explicit that the CER research would not be used in ways that interfere with the treatment decisions made by doctors and their patients. It would have created an independent Institute to oversee a patient-centered research program–unlike the current House version which establishes the CER entity as part of HHS’ AHRQ. It would also have ensured appropriate use of results by requiring the research Institute to recognize differences in patients (including differences based on race, ethnicity and gender), separating the research Institute from policy decision-makers, and protecting the ability of physicians to tailor their use of the CER results to the needs of individual patients.

The amendment was slated to be considered by the Committee when Congress returned from August recess; however, the amendment was not among the group that the Committee ultimately considered.  Therefore, the amendment was effectively defeated.

Rep. Phil Gingrey (R-GA) offered three amendments concerning CER. Two of Gingrey’s amendments passed by voice vote, while the third was rejected by a vote of 33-24.

Gingrey’s first amendment prevents the House CER entity from developing “quality-adjusted life year measures” or any other methodologies that can be used to deny benefits to a beneficiary against the beneficiary’s wishes on the basis of the beneficiary’s age, life expectancy, present or predicted disability, or expected quality of life.

Gingrey’s second amendment prevents the results of CER from determining health coverage decisions.

Rep. Gingrey’s third amendment, which failed by a vote of 33-24, likely failed as a result of being overly broad. The text of Rep. Gingrey’s amendment is here:

“Nothing in this section shall be construed to allow any federal employee or political appointee to dictate how a medical provider practices medicine.”

Rep. Mike Rogers (R-MI) also offered a CER-related amendment which was accepted by voice vote. Rep. Rogers’ amendment prevents the Federal government and private insurers from using Federal comparative effectiveness research for care rationing or limiting reimbursement levels.

However, another amendment offered by Rep. Mike Rogers on CER was rejected by the Committee by a vote of 35-23. This amendment would have prevented the use of comparative effectiveness research from being used to decide whether to offer or withhold coverage or to reduce reimbursements for healthcare providers for offering treatments.

Finally, Rep. Tim Murphy (R-PA) also offered an amendment which passed by voice vote. Rep. Murphy’s amendment requires the new Center for Comparative Effectiveness Research and the new Health Choices Commission to consult with the specialty colleges and academies of medicine in determining any official recommendation or standards for best practices.

Ways and Means Committee

Rep. Wally Herger (R-CA) offered an amendment at the Ways and Means Committee mark up of H.R. 3200 which would have prohibited the use of CER to make coverage determinations on the basis of cost. This amendment was defeated by a vote of 26-15.

Education and Labor Committee

No amendments on CER were considered during the Education and Labor Committee mark up.

2.      Senate HELP Bill

All amendments to prohibit cost-driven curtailment, withdrawal or denial of care were rejected.  On June 22, 2009, Sen. Enzi offered two amendments to the HELP Committee bill which would have prevented the denial of end of life care and prohibit rationing on the basis of patient age, disability, medical dependency or quality of life. (amdts. 278 and 280).[6] These amendments were rejected on a party line 13-10 vote. Opposition was lead by Sen. Mikulski.

Sen. Hatch also offered amendments to the bill which would have prevented the rationing of health care available to patients (amdts. 232 and 233) and ensured that taxpayers were not forced to fund assisted suicide (amdt. 228). The Hatch amendments were rejected by a vote of 13-10 on June 18, 2009.

Sen. Roberts offered three amendments which would have prevented private health insurers from being prohibited from covering treatments (because of the Medicare payment policy tie-in language.), which would have ensured that all individuals have access (if they wish for such access) to essential health benefits” (as defined by the Secretary under this title) regardless of their age, expected length of life, disability, etc., and one which would have required the Gateway (Exchange) to certify that participating plans do not have a pattern or practice of denying coverage to individuals based on their age, expected length of life, disability (amdts. 209, 210, and 211). The Roberts amendments were defeated by a 13-10 vote.

3.      Senate Finance Bill

Three amendments relating to CER were defeated in Committee.  These amendments would have addressed concerns that CER could be used to mandate or encourage the withdrawal or curtailment of effective life-sustaining treatment to the elderly, terminally ill, chronically ill, or permanently disabled.

Senator Pat Roberts (R-KS) offered an amendment (D5) that would have prohibited cost from being a factor in any comparative clinical effectiveness research conducted using federal funds under this bill and existing law. Failed 8-14.

Senator Roberts also offered an amendment (D4) that would have removed the comparative effectiveness provisions in the bill (the Patient-Centered Outcomes Research Act of 2009).  Failed 9-14.

Senator Jon Kyl offered an amendment (D8) that would have added the “Preserving Access to Targeted, Individualized, and Effective New Treatments and Services (PATIENTS) Act of 2009” (S.1259).  The PATIENTS Act would have ensured that data obtained from CER would not be used to deny coverage of an item or service under a federal health care program.  It would have also ensured that CER would account for factors contributing to differences in the treatment response and treatment preferences of patients.  Failed 10-13.

IV.              End of Life Care

In H.R. 3200, section 1233 addresses end of life care. The section leaves unclear whether the government or a health care provider could counsel or encourage a patient to choose physician-assisted suicide as a solution to terminal illness. While section 1233 remains in the bill, an amendment offered by the “Blue Dog Democrats” and accepted by the Energy and Commerce Committee, Sec. 138, prevents the “promotion” of assisted suicide (though not the practice of it), and makes it clear that material distributed by Qualifying Health Benefits Plans (QHBPs) “shall not include advanced directives or other planning tools that list or describe as an option suicide, assisted suicide or the intentional hastening of death regardless of legality.” (However, there is an exception to this for states which already require this information to be listed.)  However, it is unclear how the potentially conflicting Section 1233 and Section 138 relate to one another.

In the Senate Finance Committee, a modification was added to the bill that included Senator Hatch’s amendment to prohibit federal funding for assisted suicide and provide conscience protection for those who refuse to participate in assisted suicide.  (#C12, Page 17).

Conclusion

In order to move forward, the health care reform legislation before Congress must ensure that life at all stages is protected.  This requires:

·        The inclusion of language that explicitly prohibits abortion funding or coverage.

·        The permanent codification of the Hyde Amendment.

·        The removal of the Capps Amendment and Mikulski Amendment.

·        The inclusion of broad, explicit language that codifies the right of conscience (such as the Pitts/Stupak conscience amendment to H.R. 3200, rather than the Kennedy Amendment to the Senate HELP Bill).

·        The exclusion of government-defined end-of-life counseling.

·        Language that ensures that Comparative Effectiveness Research included in the bill and in existing law will not be used to mandate or encourage the withdrawal or curtailment of effective life-sustaining treatment to the terminally ill, the chronically ill, or the permanently disabled.