At 8:00 p.m. tomorrow night, the Senate is expected to vote on cloture on the Motion to Proceed to debate on Senate Majority Leader Harry Reid’s pro-abortion health care bill.  Sixty Senators’ votes are needed for the bill to move forward.  While this vote has been touted by pro-abortion lawmakers as merely “procedural” in nature, according to the Congressional Research Service, over 97% of bills that receive a cloture vote to begin debate ultimately pass the Senate. 

That means a vote for this motion equals a vote for the bill.  Right now, the bill lacks the strong Stupak-Pitts Amendment language that was added to the House health care reform bill.  The Stupak-Pitts Amendment mirrors the Hyde Amendment, in that it prohibits federal dollars from paying for elective abortions or subsidizing insurance plans that cover elective abortions.

See article below:

http://www.rollcall.com/news/40812-1.html?CMP=OTC-RSS

CRS Report Shows Most Bills Subject to Cloture Pass

By John Stanton
Roll Call Staff
Nov. 19, 2009, 10:25 p.m.

A new study of Senate voting patterns shows the chamber has approved more than 97 percent of all bills subject to a cloture motion to begin debate — a finding that could undercut Democratic efforts to paint a key health care vote on Saturday as procedural.

According to a new Congressional Research Service report, since 1999 the Senate has approved 97.6 percent of all bills when lawmakers first voted to begin debate.

Under Senate rules, debate on a bill cannot begin unless there is a motion to do so. Unless all 100 Members agree to begin debate, Senate Majority Leader Harry Reid (D-Nev.) must first file for cloture on the motion to move to the bill — a vote that requires at least 60 votes.

According to CRS, between 1999 and 2008 there were 41 times when lawmakers first voted for a cloture motion to begin debate, and the Senate ultimately passed the bill on 40 occasions. Sen. Tom Coburn (R-Okla.), one of the lead opponents of the Democratic-led health care reform effort, requested the report.

While technically a procedural vote, the minority party has used the 60-vote threshold over the years as a way to block legislation they dislike. More significantly, these sorts of votes have figured heavily in election fights, most famously when Republicans accused Sen. John Kerry (D-Mass.) of flip flopping during his 2004 presidential campaign after he tried to explain how through a procedural motion he had voted for a supplemental appropriations bill before he voted against it.

In the health care reform debate, with Reid struggling to find 60 votes in support of the actual bill, he has sought to assure his Members that the vote is simply a procedural vote that will simply allow them to begin the debate — and that it will not lock them into a final yes vote on the underlying legislation.

But Republicans have repeatedly argued that Saturday’s vote to begin debate is tantamount to voting for the bill. GOP operatives have vowed that if wavering moderate Democrats Sens. Ben Nelson (Neb.), Mary Landrieu (La.) and Blanche Lincoln (Ark.) vote for the cloture motion Saturday, they will use the vote against them. Lincoln is particularly vulnerable because she is up for re-election in 2010 and is being targeted by Republicans. All three Senators have been reluctant to say whether they are willing to vote for the cloture motion, although Democratic aides Thursday were cautiously optimistic that they would be able to muster the 60 votes needed.

Democrats dismissed the report, saying that while the approval rate may appear high, Republicans have repeatedly used procedural motions and other tactics to stymie debate of legislation.

“If a vote for the motion to proceed should be considered a vote for the underlying bill, why are they making us jump through these unnecessary hoops of holding them?” Reid spokesman Jim Manley said Wednesday. “If it’s all the same to them, let’s just go straight to an up-or-down vote on the bill itself. Anything else is a waste of time.”

Washington, DC – Today, in a vote of 59-39, the U.S. Senate confirmed pro-abortion federal judge David Hamilton as an appellate court judge.

Americans United for Life President and CEO Dr. Charmaine Yoest said, “Americans United for Life believes that judges should uphold Constitutional restrictions on abortion. As a District Court judge, Hamilton promoted his radical pro-abortion agenda. His promotion to the Seventh Circuit will give him jurisdiction over court cases addressing life issues from Indiana, Illinois and Wisconsin which is of serious concern to the pro-life community.”

For seven years, through a series of rulings in A Woman’s Choice v. Newman, 904 F. Supp. 1434 (S.D. Ind. 1995), he blocked the enforcement of Indiana’s informed consent law Public Law 187. Public Law 187 requires that women be given information about the procedure and other alternatives in person at least 18 hours before the abortion is performed. Reversing Judge Hamilton’s rulings, the Court of Appeals noted the law was “materially identical to a law held valid by the Supreme Court in Casey, by this court in Karlin, and by the Fifth Circuit in Barnes.” Judge Hamilton ignored clear precedent in favor of his own abortion agenda.

To view AUL’s in depth analysis of Judge Hamilton’s record on judicial activism and abortion, click here.

To view AUL’s score letter on Judge Hamilton, click here.

The confirmation of Judge David Hamilton to the Seventh Circuit Court of Appeals would be another step away from common ground by the President and the Democratic Senate.  As a District Court Judge, his decisions are subject to review by the Seventh Circuit Court of Appeals and they reversed him often.

The Court of Appeals ruled Judge Hamilton abused his judicial discretion in obstructing the right of the people of Indiana to enact constitutional pro-life legislation. For seven years, through a series of rulings in A Woman’s Choice v. Newman, 904 F. Supp. 1434 (S.D. Ind. 1995), he blocked the enforcement of Indiana’s informed consent law. Reversing Judge Hamilton’s rulings, the Court of Appeals noted the law was “materially identical to a law held valid by the Supreme Court in Casey, by this court in Karlin, and by the Fifth Circuit in Barnes.” Judge Hamilton ignored clear precedent. He tied up the court system and wasted the citizens of Indiana’s financial resources requiring them to defend a constitutional law.

In his Senate confirmation hearing, Judge Hamilton affirmed his embrace of judicial activism. While Justice Sotomayor rejected the empathy standard during her confirmation hearing for the Supreme Court, Judge Hamilton used his hearing as an opportunity to reiterate his belief that empathy is “important” in fulfilling the judge’s oath of office. However, empathy for one litigant is injustice to another, for it violates the judge’s obligation to refrain from taking sides in a dispute.

Judge Hamilton’s record and commitment to continue legislating from the bench not only do not warrant a promotion, but warn against it.

Americans United for Life has sent a letter to Senate members expressing our deep concern about a confirmation of Judge David Hamilton to the Court of Appeals.

Senate Majority Leader Harry Reid last night unveiled a health care bill which provides for an unprecedented expansion of federally-funded abortion.  The bill includes pro-abortion language and mirrors the false compromise Capps Amendment from the House debate — it allows the public option to include abortion coverage and provides federal subsidies for private plans which cover abortion.   

The principle behind both the Hyde Amendment and the Stupak-Pitts Amendment is that taxpayer dollars do not pay for abortions or subsidize insurance plans that cover abortions.  In the new Senate bill, the abortion language revealed on pages 116 through 124 in Senator Reid’s new health care bill will:

• Require a plan that covers abortion in every insurance market.  
• Allow the U.S. Secretary of Health and Human Services to require coverage of any and all abortions through the public option. 
• Create new tax-funded subsidies to purchase private health plans that will cover abortion. 

Following is the detailed analysis of the abortion provisions in the bill from AUL’s legal team:

Abortion Provisions (beginning on Page 116)

Section 1303(a)(1)

(A) (i) qualified health (private) plans will not be forced to cover abortions; (ii) they can choose to. [Same as Capps]

(B)

(i) Hyde-prohibited abortions;

 (ii) Hyde-permitted abortions (currently rape, incest, life of the mother)

(C) (i)  The secretary may not require the “community health insurance option” (the public option) to include Hyde-prohibited abortions unless

(I) the Secretary ensures compliance with paragraph (2) below;

(II)ensures that through accounting mechanisms federal funds do not pay for abortions and

(III) ensures that the United States does not bear the health insurance risk of coverage of Hyde-prohibited abortions.

[Functionally, this is no different than Capps.  Secretary Sebelius can still include elective abortion in the public option]

(ii)  If a state requires the coverage of Hyde-prohibited abortions in a community health insurance option in the state, the state must ensure accounting mechanisms keep “funds flowing through or from” the option and other federal dollars from paying for defraying the cost of abortions.  The United States shall not bear the insurance risk for covering Hyde-prohibited abortions.

(iii) Nothing in (C) applies to Hyde-permitted abortions.  Hyde-permitted abortions should be covered to the same extent as they are covered under Title XIX of the Social Security Act.

[Same as Capps -- If the Hyde Amendment is ever removed or the exceptions are broadened, then all abortions will be automatically covered by the public option]

(D) (i)(I): At least one plan in each Exchange must provide both Hyde-prohibited and Hyde-permitted abortions.

(II)  At least one plan must NOT offer Hyde-prohibited abortions.

(ii)(I)  The plan under (i)(II) above qualifies if it also does not offer Hyde-permitted abortions.

(II)  If an exchange has more than one insurance market, it must meet the rules in (i) for each market.

[Functionally same as Capps]

Section 1303 (a)(2) [This is the whole segregation / "abortion premium" section -- functionally the same as Capps]

(A) A Qualified Health Plan that chooses to cover Hyde-prohibited abortions cannot use any of the funds attributed to the following sources:

(i) The credit under section 36B of the Internal Revenue Code or the advanced payments of the credit available under Section 1412 of this Act;

(ii) Any cost-sharing reductions under Section 1402 of this Act and the amount (if any) of any advance payment of the reduction under Section 1412 of this Act;

(B) Segregation of funds –Qualified Health Plans that choose to cover Hyde-prohibited abortions must segregate out funds equal to the actuarial amount determined under (C) below for all enrollees from the amounts described in (A) above.

(C) (i) The Secretary shall estimate the basic per enrollee, per month cost under a Qualified Health Plan for covering Hyde-prohibited abortions

(ii) The Secretary must:

(I) consider the impact on overall cost of including the coverage;

(II) Estimate such cost as if such coverage were included for the entire population covered;

(III) May not estimate it at less than $1 a month

Section 1303 (a)(3):  Weak conscience protection (doesn’t protect pro-life insurance companies) [No Hyde-Weldon language]

Section 1303(b)(1): No preemption of state laws on abortion

Section 1303(b)(2): 

(A) No preemption of federal laws on
(i) conscience

(ii) willingness or refusal to provide abortions

(iii) discrimination on the basis of willingness or refusal to provide abortion,

Section 1303(b)(3):  No effect on federal civil rights laws

Section 1303(c):  Nothing in the act relieves health care providers from being required to provide emergency services as required by state and federal law

There have been many recent questions in the press and on Capitol Hill about the scope of the Stupak Amendment added to the House health care reform bill, H.R. 3962, and how it will impact private insurance plans. 

The Stupak Amendment applies the same abortion funding restrictions to programs created by and funded through H.R. 3962 that the Hyde Amendment applies to programs funded through the Labor, Health and Human Services Appropriations Bill (like Medicaid).  Because the government is expanding its role in paying for health care, the two amendments cannot be identical, word-for-word — the abortion funding restriction must be tailored to fit the new programs.  However, the principle behind both the Hyde Amendment and the Stupak Amendment – that federal dollars do not pay for abortions or subsidize insurance plans that cover abortions – is the same. 

Regarding the subsidization of private insurance, the Hyde Amendment explicitly provides:  “None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for health benefits coverage that includes coverage of abortion.”  The Federal Employee Health Benefits Program (FEHBP) also prohibits participating plans from covering abortion (there are no funding mechanisms to segregate “private” premiums from federal dollars).  The Stupak Amendment continues this existing policy. 

To view a side-by-side comparison of the Hyde and Stupak amendments and a memo examining the Stupak Amendment, please see:

http://blog.aul.org/wp-content/uploads/2009/11/Comparision-Chart-b-t-Hyde-and-Stupak.pdf

http://blog.aul.org/wp-content/uploads/2009/11/Stupak-Pitts-Backgrounder.pdf

Watch CBS News Videos Online

Introduction

While pro-abortion groups claim that the Stupak Amendment, added to H.R. 3962 by a vote of 240-194, with 64 Democrats voting in favor of the amendment, is broader than existing federal law, they are incorrect.  In reality, the Stupak Amendment, which ensures that funds authorized and appropriated through the bill will not pay for abortions or subsidize insurance plans that cover abortions, mirrors the “principle that has been in place for a very long time,”[1]the Hyde Amendment,[2] and thus maintains the status quo.  Furthermore, its inclusion is necessary as part of health care reform because the Hyde Amendment and other existing federal prohibitions on abortion coverage and funding will not apply to the new programs created by H.R. 3962.[3]

 I.                  Current Federal Law

The Hyde Amendment has been added yearly to the Labor, Health and Human Services (LHHS) appropriations bill to prohibit federal funding from being used to pay for abortions (except in the cases of rape, incest or life of the mother) since 1976. Spending is covered by Hyde if (1) the money is allocated through the yearly appropriations process, AND (2) the money flows through HHS (as with Medicaid).[4]

Both 1 & 2 are required for Hyde to apply.  The Hyde Amendment is used to prevent federal Medicaid dollars (as well as state matching funds) from being used to pay for abortions. Individuals who fall within 150% of the federal poverty level qualify for Medicaid.

Also, federal dollars are prohibited from subsidizing private plans that cover abortion. Private plans participating in the Federal Employee Health Benefits Program (FEHBP) cannot offer coverage of abortion because the plans are subsidized by the government (and, thus, by taxpayer funds). In other words, federal employees cannot purchase an insurance plan that includes abortion coverage.

Thus, two principles were established in federal law before heath care reform was even being considered – federal dollars are not used to pay for abortions and federal dollars are not used to subsidize insurance plans that cover abortions.

II.               Programs Created Through H.R. 3962

Before H.R. 3962 was modified by the Stupak Amendment, the bill allowed the government health plan, or “public option,” to cover elective abortion and permitted federal dollars to be used towards private insurance plans that cover abortion via “affordability credits.” Under H.R. 3962, individuals who are between 150% and 400% of the federal poverty level can qualify for federally subsidized “affordability credits” as a means of offsetting the cost of purchasing health insurance. These affordability credits can be applied to any health care plan participating in the newly created healthcare “Exchange.”

The Stupak Amendment ensures that the public option does not cover abortions and that, while private insurance plans that cover abortion may participate in the Exchange, they may not receive government subsidization through affordability credits. In other words, the Stupak amendment ensures that individuals who fall within 150 to 400% of the federal poverty level, who choose to accept affordability credits from the government to help pay for insurance, must choose a plan that does not cover elective abortions.

It is important to note that, under the Stupak Amendment, every insurance company that includes a plan in the Exchange that covers abortion must include a second plan that is identical to the first plan in every aspect except that it does not cover abortion. Therefore, everyone who purchases insurance through the Exchange has access to the same coverage, with the only exception being that those who receive affordability credits cannot use those government dollars to purchase insurance plans that include abortion coverage.

III.           The Hyde Amendment Mirrored in the Stupak Amendment

The Hyde Amendment and the Stupak Amendment address different laws. However, the amendments’ provisions and their effects on the laws to which they apply are virtually identical.

• Both the Hyde Amendment and the Stupak Amendment prohibit federal funds that are authorized or appropriated in connection with their underlying legislation from being used to pay for abortion (Hyde 507(a), Stupak 265(a)). 
• Hyde and Stupak also both prevent federal funds from being used to subsidize health care plans that offer abortion coverage (Hyde 507(b) and (c), Stupak 265(a)).
• Both Amendments make exceptions to the federal funding ban for abortions in the cases of rape, incest, and life of the mother. (Hyde 508(a)(1-2), Stupak (265(a)).
• Both Amendments permit states to offer supplemental abortion coverage (Hyde 508(b), Stupak 265(b)).
• Both Amendments specify that supplemental abortion coverage must be funded from separate funds, not tied to federal funding. Specifically, supplemental abortion coverage cannot be covered by state Medicaid dollars because state Medicaid money is matched by the federal government with federal funds (Hyde 508(b), Stupak 265 (b)(1) and (b)(2)(A-B)), and federal funds are prohibited from paying for abortions.
• Both Amendments permit private health plans to offer abortion coverage, (Hyde 508(c), Stupak 265(c)) and the Stupak amendment specifies in 265(c)(3) that private health insurance plans participating in the health care exchange may choose to offer two different plans, one that covers abortion and one that does not (but identical in every other respect), with the plan that covers abortion being available only to individuals who do not receive federally subsidized affordability credits. 

Conclusion

The Hyde Amendment prohibits federal funding of abortion through Medicaid, while similar laws prohibit federal funding of abortion through other government programs.  The status quo on abortion funding is this: The federal government does not pay for abortions or subsidize plans that cover abortions.  The Stupak Amendment applies these principles to H.R. 3962 by ensuring that the public option does not pay for abortions, as with Medicaid, and that private plans that cover abortions do not receive federal subsidies, as with the Federal Employees Health Benefits Program. 

[2] See http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h2764enr.txt.pdf, pg. 365.

[3] See Congressional Research Service Memo: Availability of Funds in the Public Health Insurance Option Account in Section 222(b)(1) of H.R. 3200, August 31, 2009; Congressional Research Service Memo: Availability of Funds in the Health Insurance Exchange Trust Fund in Section 207 of H.R. 3200, August 28, 2009.   

[4] 25 U.S.C. Sec. 1676 applies any abortion funding limitation found in HHS appropriations (the Hyde Amendment) to the Indian Health Service (even though it is funded through the Interior Appropriations Bill).

On Nov. 7, 2009, the House passed H.R. 3962, the Affordable Health Care for America Act by a vote of 220-215.  One Republican, Joseph Cao (R-LA), voted in favor of the bill.  The bill will incorporate the Stupak-Pitts amendment, which bans use of federal funding for abortion and prohibits the public option from covering abortion services.

Democrats voting “No” include:

 John Adler, New Jersey, Jason Altmire, Pennsylvania, Brian Baird, Washington, John Barrow, Georgia, John Boccieri, Ohio, Dan Boren, Oklahoma, Rick Boucher, Virginia, Allen Boyd, Florida, Bobby Bright, Alabama, Ben Chandler, Kentucky, Travis W. Childers, Mississippi, Artur Davis, Alabama, Lincoln Davis, Tennessee, Chet Edwards, Texas, Bart Gordon, Tennessee, Parker Griffith, Alabama, Stephanie Herseth Sandlin, South Dakota, Tim Holden, Pennsylvania, Larry Kissell, North Carolina, Suzanne M. Kosmas, Florida, Frank Kratovil Jr., Maryland, Dennis J. Kucinich, Ohio, Betsy Markey, Colorado, Jim Marshall, Georgia, Eric Massa, New York, Jim Matheson, Utah, Mike McIntyre, North Carolina, Michael E. McMahon, New York, Charlie Melancon, Louisiana, Walt Minnick, Idaho, Scott Murphy, New York, Glenn Nye, Virginia, Collin C. Peterson, Minnesota, Mike Ross, Arkansas, Heath Shuler, North Carolina, Ike Skelton, Missouri, John Tanner, Tennessee, Gene Taylor, Mississippi, and Harry Teague, New Mexico

On Nov. 7, 2009, the House defeated the Republican health care reform substitute bill by a vote of 176 to 258.

On Nov. 7, 2009, the House passed the Stupak-Pitts amendment by a vote of 240-194. 64 Democrats voted in favor of the amendment, and one Republican, Rep. John Shadegg (R-AZ), voted present.

List of Dems voting Yes include:

Altmire, Baca, Barrow, Berry, Bishop (GA), Boccieri, Boren, Bright, Cardoza, Carney, Chandler, Childers, Cooper, Costa, Costello, Cuellar, Dahlkemper, Davis (AL), Davis (TN), Donnelly (IN), Doyle, Driehaus, Ellsworth, Etheridge, Gordon (TN), Griffith, Hill, Holden, Kanjorski, Kaptur, Kildee, Langevin, Lipinski, Lynch, Marshall, Matheson, McIntyre, Melancon, Michaud, Mollohan, Murtha, Neal (MA), Oberstar, Obey, Ortiz, Perriello, Peterson, Pomeroy, Rahall, Reyes, Rodriguez, Ross, Salazar, Shuler, Skelton, Snyder, Space, Spratt, Stupak, Tanner, Taylor, Teague, Wilson (OH)

Statements are paraphrased.

Stupak: Capps Amendment is the most direct assault on Hyde since 1997.

DeGette: Capps Amendment is a compromise that does not spend $1 federal dollar on abortion. Requirement for supplemental insurance is offensive to women

Pitts: The public does not support federal funding of abortion. Current law prevents fed. dollars from paying for abortion and subsidizing abortion providing plans. A majority opposes funding of abortion on demand.

DeLauro: Stupak Amdt. undermines Capps and is an unprecedented overreach of women’s basic rights and freedoms. It would take away the freedom of conscience and destroy access to abortion. Further, it would discriminate against working women. This is a life or death for women.

Dahlkemper: Stupak Amdt. doesnt change current law. It doesn’t outlaw abortion and it makes hcr consistent with all other federal hc programs.

Capps: Stupak Amdt. strips women of right to choose and does not maintain status quo. Abortion is a legal, medical procedure. Irony that those who claim to oppose gov interference in hc are the same people who are supporting this government regulation of abortion. Capps already does prohibit fed funding.

Pence: I still plan to oppose underlying bill. Ending life is morally wrong; it is wrong to pay for abortion with taxpayer money. Stand for life and vote yes on Stupak.

Lowey: Abortion should be legal and safe and rare. We should reduce abortions by offering contraceptive care, not by denying access to abortion.

McMorris Rodgers: Protection for children should start at moment that life begins. Women object to gov funding of abortion.

Ellsworth: We need to offer Prolife options on the exchange. I have been working with the Catholic bishops on this amdt. This has not been easy, but the amdt. honors and respects life, including the unborn. With passage of this amdt. I will support the bill.

Lee: Inserts federal gov into women’s choices. I am Catholic and I can understand the tough moral choices. But this amdt. will return us to the dark days of back alley abortions. Stupak goes way beyond Hyde. Stupak brings outrageous religious views into public policy. We have a separation of church and state that requires us not to cross this line. Also, it will hurt low income women.

Ryan: Support proteciton of life. Vote with a clean conscience.

Nadler: We are trying to level the playing field for women, but Stupak discriminates agasint women. There would be no abortion in public option, and Stupak would change existing law.

Bachmann: Life is the watershed issue of this generation. Destruction of life not healthcare.

Quigley: Only people who can afford insurance can get abortions. Poor women will be forced to sacrifice privacy.

Fortenberry: The vast majority of Americans do not want federal funding of abortion. Women deserve better. From early childhood to the elderly, we should not compromise. It is not ours to decide who lives or who dies.

Slaughter-(co chair of pro choice caucus) For years, pro-life and pro-choice members have been in a peaceful coexistence around Hyde. H.R. 3962 has the strongest conscience clause yet–and even that is now being strengthened. 30-40 years of women’s accomplishments are being cancelled out. Poor women will have to go to the back alley.

Schakowsky: Only option for abortion is separate policy. Millions of women will be losing coverage.

Lipinski-Approve the Hyde amdt for this bill through supporting Stupak.

Chris Smith: Abby Johnson viewed abortion and became pro-life because she saw how abortion kills a child. Abortion harms women–women who have abortions are more likely to later suffer depression. Abortion contributes to pre term birth–and pre term birth contributes to other problems we want to avoid. If we want to reduce abortions-dont fund them. A Guttmacher study confirms this.

Kaptur: Stupak Amdt. reaffirms Hyde, nothing more

Minority Leader John Boehner (R-OH) stated on the House floor that all three Chairmen of the Committees of jurisdiction, Chairman of the Energy and Commerce Committee, Henry Waxman (D-CA), Chairman of the Education and Labor Committee George Miller (D-CA), and Chairman of the Ways and Means Committee Charlie Rangel (D-NY) refused to offer assurances that they would support the House passed language that includes the Stupak-Pitts amendment during the House and Senate conference.  Boehner urged Members considering a “yes” vote on final passage if the Stupak-Pitts amendment were passed, to reconsider their support in light of the Chairmens’ efforts to undermine the Stupak-Pitts agreement during conference.

The bill being debated right now in the House, H.R. 3962, contains several problematic anti-life provisions. 

Below is AUL’s legal analysis of the abortion provisions in the bill, as well as an analysis of the conscience protection, Comparative Effectiveness Research, and End-of-life provisions in the bill.

I. Abortion

The House health care bill, H.R. 3962 includes the same problematic provisions found in the Capps Amendment added to H.R. 3200 (the former House health care reform bill).  The bill:

Allows private health insurance plans that cover elective abortion to receive government subsidies (Section 222(e)(2)) (The bill also includes the Capps provision that purports to segregate the “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);

 Permits the public option to include abortion coverage (Section 222(e)(3));

 Mandates that one plan in every coverage area covers abortion (Section 303(e)(1)(A)).

H.R. 3962 also states that funds provided for school-based clinics cannot be used for abortions (Sec. 399Z-1(c)(2))) and that school-based clinics are defined as not providing abortions (Sec. 399Z-1(l)(3)(E)). However, this provision does not prohibit abortion referrals.

Finally, Section 804 ties Indian Health Services (IHS) funding for abortion to the Hyde Amendment (added annually to the Health and Human Services (HHS) Appropriations Bill). Therefore, if the Hyde Amendment is not added to the HHS Bill in a given year, there will be no ban on abortion funding under the IHS.

II. Conscience Protection

Initially, H.R. 3962 appears to contain strong conscience protection regarding abortion. Section 259, entitled “nondiscrimination on abortion and respect for rights of conscience,” mirrors existing law, i.e., the clear protections for those who oppose abortion provided through the Hyde/Weldon conscience amendment (which must be added to an appropriations bill annually).  

However, Section 304(d) protects abortionists from “discrimination” by pro-life insurance plans who want to participate in the exchange, but do not want to contract with abortionists.  This limits the extent to which an insurance company can be pro-life.   Since Section 304(d) provides that an “exchange participating plan” cannot discriminate against a health care provider/entity that provides abortions, a pro-life insurance company that does not want to subsidize abortion, even indirectly, would not be able to do so.

Sections 258(a) and (b) provide that there is no preemption of state laws on abortion or of federal protections for conscience.   However, the conscience protection in the bill does not extend to pharmacists and pharmacies and there is no assurance that state laws protecting the conscience of these health care providers will not be preempted.

H.R. 3962 affords no conscience protection for health care providers regarding end-of-life concerns.

III. Comparative Effectiveness Research

Section 1401 addresses the use of Comparative Effectiveness Research (CER). CER 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. At AUL, we believe that any CER provision must include language to ensure 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.

Section 1401(h) provides that CER will not be used to “mandate coverage, reimbursement, or other policies for any public or private payer.” It also provides that none of the CER reports “shall be construed as mandates, for payment, coverage, or treatment.” Furthermore, the section provides that “nothing in this section shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine.” AUL continues to evaluate whether these provisions are sufficient to prevent the inappropriate use of CER.

IV. End of Life

Section 240 requires the dissemination of advance care (end of life) planning information by Qualified Health Benefits Plans (QHBP). Section (a)(3) provides that a QHBP “shall not promote suicide, assisted suicide, euthanasia, or mercy killing.” The information disseminated “shall not presume the withdrawal of treatment and shall include end-of-life planning information that includes options to maintain all or most medical interventions.”

Section 240(b) provides that nothing in this section shall be construed to require an individual to complete an advanced directive or a physician’s order for life sustaining treatment or other end-of-life planning documents, to require an individual to consent to restrictions in medical benefits, or to promote suicide, assisted suicide, euthanasia, or mercy killing.

Section (d)(1) prohibits materials distributed by QHBP’s from listing assisted suicide as an option. Section (d)(2) clarifies that nothing in (d)(1) applies or affects any options for withholding treatment, nutrition, palliative/hospice care. Finally, section (d)(3) provides that the bill doesn’t preempt state laws.

While these protections appear strong, H.R. 3962 does not provide definitions for terms such as “assisted suicide,” and the broader language that included a prohibition on providing materials that promoted the intentional “hastening of death” which was adopted in the Energy and Commerce Committee was removed from H.R. 3962.

Broader language is necessary.   Oregon and Washington, for example, have laws permitting assisted suicide but the laws state that what they permit is not assisted suicide. Language must be explicit and broad to ensure that this provision does not create a large loophole for the promotion of assisted suicide.  This loophole will extend to other states who may similarly redefine assisted suicide. 

Section 1233 creates “advance care planning consultations” as a new optional Medicare-covered benefit. The consultation must be between a physician or other health care professional and the patient, and may be conducted every five years or more often if the patient’s condition deteriorates.

The section specifies that “[n]othing in this section shall–…encourage the promotion of suicide or assisted suicide.” However, this section, like Section 240, fails to define “assisted suicide.” Therefore, states that have legalized assisted suicide by another name may argue that Medicare should pay for end-of-life counseling that includes assisted suicide as an option (under another name, like “death with dignity”).

At 1:43 pm on Nov. 7, 2009, the House of Representatives voted to approve H.Res. 903, the Rule under which Democratic leadership will bring H.R. 3962, the Affordable Healthcare for America bill, to the House floor. (Roll Call vote No. 882)  The voted was approved by a vote of 242-192.

The House will now begin debating H.R. 3962, the health care reform bill, including the Republican substitute bill offered by Rep. John Boehner (R-OH) and the Stupak-Pitts abortion funding amendment.

An editorial in the Washington Post today asserted, “The controversy over abortion funding is similarly phony. Federal law prohibits the use of federal money for abortions except in cases of rape, incest or where the life of the mother is endangered. The House bill would leave that restriction in place. It would exclude abortion from the list of benefits that plans participating in the insurance exchange would be required to offer. Instead, the exchanges would have to include one plan that covers abortion, along with one that doesn’t. Even so, the plans that cover abortion would have to take steps to make sure that federal funds are segregated from those used to pay for abortions.”

The only thing “phony” about the abortion funding controversy are these repeated misleading statements claiming the bills in Congress, as proposed, would not use federal dollars to fund abortion. 

“Federal law prohibits the use of federal money for abortions except in cases of rape, incest or where the life of the mother is endangered. The House bill would leave that restriction in place.”

The prohibition on federal funding of abortion, the Hyde Amendment, does not apply to H.R. 3962.  

In fact, the abortion funding language of 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.

The language of H.R. 3962 on its face mandates only coverage in the public option of those Hyde-permitted abortions (in cases of rape, incest, or life of the mother).  But, H.R. 3962 does not prohibit funding other abortions and it goes further – explicitly allowing the HHS Secretary to include all abortions in the public option. (Section 222(e)(3)).   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.

“It would exclude abortion from the list of benefits that plans participating in the insurance exchange would be required to offer.”

While the bill would not force all private insurance plans to directly reimburse for abortion, the bill allows private health insurance plans that cover elective abortion to receive government subsidies (Section 222(e)(2)). This 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). 

“Instead, the exchanges would have to include one plan that covers abortion, along with one that doesn’t.”

The bill does require that there be one insurance company in each region that does not directly reimburse for abortion.  However, 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.

Additionally, for the first time the government is mandating that there be a private insurance company that does provide abortion coverage in each region.  

“Even so, the plans that cover abortion would have to take steps to make sure that federal funds are segregated from those used to pay for abortions.”

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.

As Rep. Bart Stupak (D-MI) said last night in support of his amendment that would reflect the opinion of the majority of Americans and codify the restrictions of Hyde into H.R. 3962, “No federal dollars, no matter how you try to disguise it, should be used to fund abortion in this legislation.”

Americans United for Life’s legislative arm Americans United for Life Action endorses a key vote today on the House floor of the Stupak-Ellsworth-Pitts-Kaptur-Dahlkemper-Lipinski-Smith Amendment, an Amendment that blocks any federal money from going to abortion in health care reform

Americans United for Life Action’s President and CEO Dr. Charmaine Yoest said, “Americans United for Life Action strongly supports the Stupak-Ellsworth-Pitts-Kaptur-Dahlkemper-Lipinski-Smith Amendment to prohibit abortion mandates and funding in HR 3962.  As currently drafted H.R. 3962 fails to adequately prevent abortion coverage and funding.”

H.R. 3962 explicitly allows qualifying individuals to apply their affordability credits to private insurance plans that cover abortion. The bill also permits the Secretary of the Department of Health and Human Services (”HHS”) to offer coverage for abortions in the Public Option. Furthermore, if the Hyde Amendment, which lapses if not renewed yearly, is ever eliminated from HHS Appropriations, the bill would mandate coverage of all abortions under the public plan. In addition, the bill also requires that at least one private plan in every premium rating area must provide coverage for all abortions.”

Dr. Yoest added, “The passage of a health care reform bill with these provisions is unacceptable to pro-life Americans.  We strongly encourage the U.S. House of Representatives to vote in favor of the Stupak-Ellsworth-Pitts-Kaptur-Dahlkemper-Lipinski-Smith Amendment when it comes to the floor for a vote.”

AUL Action sent a letter this morning to members of the House of Representatives expressing our deep concern over life-related provisions in the bill.

The letter alerted House Members that AUL Action will score the vote on the Stupak-Ellsworth-Pitts-Kaptur-Dahlkemper-Lipinski-Smith Amendment,

AUL Action has also alerted our pro-life grassroots network that this vote is critical to the pro-life movement and urged them to immediately contact their Congressmen.

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

Americans United for Life Action is the legislative arm of Americans United for Life, 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.

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.

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.

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.

The U.S. House health care overhaul bill H.R. 3962 could receive a vote as early as Thursday.  H.R. 3962 would create a new stream of federal funding not covered by the restrictions of the Hyde Amendment prohibiting federal funding of abortion.

Americans United for Life President and CEO Dr. Charmaine Yoest said, “If this week’s House health care bill passes without an amendment to explicitly exclude abortion coverage and funding, the American taxpayer will be funding abortion on demand.  The status quo of over 30 years of banning taxpayer-funded abortions will be replaced by an unprecedented era of federal abortion funding.”

This week, Americans United for Life and its legislative arm AUL Action are informing citizens about pro-abortion politicians who are working to ram through taxpayer-funded abortion in health care reform: 

•  Webcast: Americans United for Life joined the largest coalition of pro-life organizations Stop the Abortion Mandate in hosting a critical webcast last night to unify the pro-life movement in fighting abortion in health care reform.  Thousands of pro-life activists participated in this important webcast last night.
• New TV Ad: AUL Action is premiering a new :30 second TV ad on CNN in collaboration with the Stop the Abortion Mandate coalition. This TV ad will dispels the myths about abortion in health care reform.
• New Online Video Ad: AUL Action’s new online video ad “Don’t Be Fooled: Abortion is in Health Care Reform” is spreading across the online world to raise awareness among the pro-life grassroots about federally funded abortion in the current health care reform proposals.
• Score Letter to Congress: A letter sent by AUL Action to members of the House of Representatives states that if the Stupak-Pitts amendment to remove abortion funding is not given a vote under the Rule governing Floor debate on the House bill, AUL Action will oppose the Rule and record the roll call vote on the Rule in our annual scorecard.  Furthermore, if the final language of the bill does not adequately meet any of AUL Action’s concerns expressed in our letter, AUL Action will oppose final passage of the bill and will record the roll call vote on final passage in our annual scorecard as well.

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.   AUL’s legislative arm AUL Action recently met with the White House to discuss abortion funding and coverage in health care.  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.

Today’s news stories on abortion in health care:

• AP: 2 tough health care issues remain in the House
• UPI: Abortion could upend House healthcare bill
• FOX News: Abortion Part of Health Care Reform Still in Question
• Washington Post: Democrats’ concerns over abortion may imperil health bill: Bloc could withhold support over fears of a governmental role
• Life News: House Democrats’ Phony Amendment Claims to Remove Abortion Funding From Health Care 

        The new version of health care reform unveiled by Speaker of the House Nancy Pelosi fails to exclude abortion funding and coverage – in fact, it explicitly includes it.  Below is AUL’s legal analysis of the abortion provisions in the bill, as well as an analysis of the conscience protection, Comparative Effectiveness Research, and End-of-life provisions in the bill.

            I.      Abortion

          The new House health care bill, H.R. 3962 includes the same problematic provisions found in the Capps Amendment added to H.R. 3200 (the former House health care reform bill).[1]  The new bill:

• Allows private health insurance plans that cover elective abortion to receive government subsidies (Section 222(e)(2)) (The bill also includes the Capps provision that purports to segregate the “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);
• Permits the public option to include abortion coverage (Section 222(e)(3));
• Ensures that one plan in every coverage area covers abortion (Section 303(e)(1)(A)).

H.R. 3962 also states that funds provided for school-based clinics cannot be used for abortions (Sec. 399Z-1(c)(2))) and that school-based clinics are defined as not providing abortions (Sec. 399Z-1(l)(3)(E)).  However, this provision does not prohibit abortion referrals.

Finally, Section 804 ties Indian Health Services (IHS) funding for abortion to the Hyde Amendment (added annually to the Health and Human Services (HHS) Appropriations Bill).  Therefore, if the Hyde Amendment is not added to the HHS Bill in a given year, there will be no ban on abortion funding under the IHS.

         II.      Conscience Protection

Initially, H.R. 3962 appears to contain strong conscience protection.  Section 259, entitled “nondiscrimination on abortion and respect for rights of conscience,” mirrors existing law, i.e., the clear protections for those who oppose abortion provided through the Hyde/Weldon conscience amendment (which must be added to an appropriations bill annually).  However, Section 304(d) protects abortionists from “discrimination” by pro-life insurance plans who want to participate in the exchange, but do not want to contract with abortionists. 

The question becomes how these two provisions will be reconciled.  Section 259 provides that an insurance company cannot be discriminated against for not covering abortion.  However, Section 304(d) provides that an “exchange participating plan” cannot discriminate against a health care provider/entity that provides abortions.  Who wins – the abortion provider or the pro-life insurance company whose conscience prohibits them from contracting with abortionists?

     III.      Comparative Effectiveness Research

Section 1401 addresses the use of Comparative Effectiveness Research (CER).  CER 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.  At AUL, we believe that any CER provision must include language to ensure 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.

Section 1401(h) provides that CER will not be used to “mandate coverage, reimbursement, or other policies for any public or private payer.”  It also provides that none of the CER reports “shall be construed as mandates, for payment, coverage, or treatment.”  Furthermore, the section provides that “nothing in this section shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine.”  AUL continues to evaluate whether these provisions are sufficient to prevent the inappropriate use of CER.

      IV.      End of Life

Section 240 requires the dissemination of advance care (end of life) planning information by Qualified Health Benefits Plans (QHBP).  Section (a)(3) provides that a QHBP “shall not promote suicide, assisted suicide, euthanasia, or mercy killing.”  The information disseminated “shall not presume the withdrawal of treatment and shall include end-of-life planning information that includes options to maintain all or most medical interventions.”

Section 240(b) provides that nothing in this section shall be construed to require an individual to complete an advanced directive or a physician’s order for life sustaining treatment or other end-of-life planning documents, to require an individual to consent to restrictions in medical benefits, or to promote suicide, assisted suicide, euthanasia, or mercy killing.

Section (d)(1) prohibits materials distributed by QHBP’s from listing assisted suicide as an option.  Section (d)(2) clarifies that nothing in (d)(1) applies or affects any options for withholding treatment, nutrition, palliative/hospice care.  Finally, section (d)(3) provides that the bill doesn’t preempt state laws.

While these protections appear strong, H.R. 3962 does not provide definitions for terms such as “assisted suicide,” and the broader language that included a prohibition on providing materials that promoted the intentional “hastening of death”  which was adopted in the Energy and Commerce Committee was removed from H.R. 3962.  Broader language is necessary because while Oregon and Washington have laws permitting assisted suicide, the laws state that what they permit is not assisted suicide.  Language must me explicit and broad to ensure that this provision does not create a large loophole for the promotion of assisted suicide.

Section 1233 creates “advance care planning consultations” as a new optional Medicare-covered benefit. The consultation must be between a physician or other health care professional and the patient, and may be conducted every five years or more often if the patient’s condition deteriorates.

The section specifies that “[n]othing in this section shall–…encourage the promotion of suicide or assisted suicide.”  However, this section, like Section 240, fails to define “assisted suicide.”  Therefore, states that have legalized assisted suicide by another name may argue that Medicare should pay for end-of-life counseling that includes assisted suicide as an option (under another name, like “death with dignity”).

Statement by Americans United for Life President and CEO Dr. Charmaine Yoest:

“Just as Americans United for Life had expected, the new House health care bill unveiled this morning includes the Capps Amendment language added during the Energy and Commerce Committee mark-up.  This bill will explicitly allow federal funding of abortion through the public option and permits federal subsidies to go to private insurance plans that cover abortion.  The bill also ensures that at least one health insurance plan must cover abortion in every area of the country.” 

Dr. Yoest continued, “These provisions create a dramatic change from the status quo — currently no federal dollars are used to pay for elective abortions or plans that cover abortion.  Now, more than ever, pro-life members of Congress must demand the opportunity to vote on the Stupak/Pitts Amendment to prohibit abortion funding.  Explicit language must be added to this health care bill to prevent unprecedented federal funding of abortion.”

About Americans United for Life

The first national pro-life organization in America, Americans United for Life has been involved in every life-related case before the Supreme Court beginning with Roe v. Wade. Americans United for Life is the organization that successfully defended the Hyde Amendment before the U.S. Supreme Court in 1980. Americans United for Life’s legislative arm, AUL Action recently met with the White House and has been meeting with Members of Congress about our concerns regarding abortion in health care.

Today, at the same time that House Speaker Nancy Pelosi was unveiling the new House health care reform bill, Americans United for Life’s legislative arm AUL Action sent a letter to members of the House of Representatives to express our deep concern over the life-related provisions in the bill.  Just as we expected, the “new” bill does not make the changes necessary to ensure that abortion coverage and funding is excluded from health care reform.

In our letter, we told Members of the House that if the Stupak-Pitts amendment to remove abortion funding is not given a vote under the Rule governing Floor debate on the House bill, AUL Action will oppose the Rule and record the roll call vote on the Rule in our annual scorecard.  Furthermore, if the final language of the bill does not adequately meet any of AUL Action’s concerns expressed in our letter, AUL Action will oppose final passage of the bill and will record the roll call vote on final passage in our annual scorecard as well.

Today, House Democrats are expected to unveil a health care overhaul bill that will likely include new federal funding for abortions not covered by the Hyde Amendment, a funding restriction on abortion limited to programs funded through the Labor, Health and Human Services Appropriations Bill. Leading pro-life Democrat Rep. Bart Stupak (D-Mich.) indicated this week that he and 40 like-minded, pro-life Democrats will work with Republicans to “torpedo healthcare reform” unless he gets a vote on his amendment to explicitly exclude abortion funding from health care reform.

Americans United for Life President and CEO Dr. Charmaine Yoest said, “Health care reform, including any public option, must include explicit language prohibiting abortion coverage and funding otherwise American tax payers will be forced to pay for abortions with their tax dollars. This move by Congress would be at odds with 71% of Americans who oppose taxpayer-funded abortions. The Capps Amendment, added to the House health overhaul bill in the Energy and Commerce Committee mark-up, explicitly allows abortion coverage and funding.”

Mary Harned, AUL’s Staff Counsel said, “If the House Democratic Leadership does not allow a vote on the Stupak-Pitts Amendment to prohibit abortion funding, pro-life Members of Congress may vote against the rule and the bill itself. Despite claims by Speaker Pelosi, abortion funding will become a reality in health care reform unless language is included in the Bill that explicitly excludes abortion funding and coverage.”

Speaker Pelosi claimed last month that the health care bill “does not expand any funding for abortion.” However, 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 allows private insurance plans that cover abortion to receive government subsidies. The provision also requires that all areas of the country contain one private plan that covers abortion.

Americans United for Life successfully defended the Hyde Amendment before the U.S. Supreme Court in 1980. Their legislative arm, AUL Action met with the White House last month regarding abortion in health care reform. For more legal analysis and to view AUL Action’s video ad about abortion in health care reform, please visit: RealHealthCareRespectsLife.com.

In September, President Obama addressed a joint session of Congress and said “under our plan no federal dollars will be used to fund abortion.” Currently, however, all three health care reform proposals in Congress mandate abortion funding to varying degrees.  Recognizing this, President Obama now seeks to clarify that by “our plan” he did not mean the actual proposals in Congress, but his “own” plan.

But the context of President Obama’s statement does not support that understanding.  

It was not an off-the-cuff remark.  The statement came in a carefully planned speech to a joint session of Congress.  It was made before the House and the Senate that had already produced two of their three versions of health care reform legislation – both already including language about abortion funding.  The President and his staff chose the words he used and their placement in his speech.  

The President could have said “my plan” or “the plan I want you to create” or even “the only plan I will sign onto” will not fund abortion.  But he did not.  President Obama chose to say “our plan.” 

Furthermore, the assertion came in a segment of the speech dedicated to “clearing up misunderstandings.”  A rational understanding of this section of his address would be that it was the President’s reaction to statements made about the bills that existed at the time: H.R. 3200 and the Senate HELP bill.  Both bills that require federal funding of abortion.

If President Obama sought instead to announce that he personally no longer supports funding abortion – a departure from his own campaign promises- he could have, and should have, made that crystal clear in his address. 

Several other statements by the President and his aides support the conclusion that what he meant was the proposed bills in Congress would not fund abortion, that the Hyde Amendment barred such funding.  The Hyde Amendment, however, does not apply to health care reform. 

Perhaps the President was initially confused on this point.  But the White House inexplicably continues to repeat the proven false claim that federal law already precludes health care reform legislation from funding abortion.  There is no excuse for these misleading statements now.

If President Obama really does not want Congress and the American public to “misunderstand” the issue of abortion funding and actually ensure that “his plan” will not fund abortion – he must do two things: 1. He and his aides must stop making false claims that abortion funding is somehow already prohibited and 2. He must tell Congress that he will not sign any legislation without explicit language prohibiting abortion funding.

Otherwise, under whatever he meant by “our plan,” federal dollars will be used to fund abortion.

In August, Secretary of State Hillary Clinton highlighted sex-selection abortions as an abuse against women in India and China saying, “unfortunately with technology, parents are able to use sonograms to determine the sex of a baby, and to abort girl children simply because they’d rather have a boy.”

But sex-selection abortions are not a phenomenon foreign to the United States.

Oklahoma has taken an important step towards ending this abuse against women.  With overwhelming bipartisan support the Oklahoma legislature passed a law banning sex-selection abortions that was signed by self-described “pro-choice” Governor Brad Henry in May.

The law contains an anonymous reporting provision to ensure abortion providers are in compliance. This provision has an added benefit for women – collecting accurate data on the reasons women are seeking abortions will enable Oklahoma to offer programs with the assistance women actually want and “reduce the need for abortion.”

The legislation seems to be exactly the kind of “common ground” we have been asked to seek.  It aims to end gender discrimination at the earliest stage of life and will help develop meaningful alternatives to abortion for women.

However, the Center for Reproductive Rights has already launched an attack and obtained a temporary injunction against the law last week.  They claim the law has “nothing to do with protecting the people of Oklahoma and everything to do with lawmakers who have political agendas trying to make it harder for women to get abortions and harder for doctors to provide them.”

The bipartisan support for the law, even from “pro-choice” lawmakers, disagrees with them.

By attacking this legislation the Center for Reproductive Rights proves they are out of the mainstream.  They are not pro-women.   They are only pro-abortion.

Senate Majority Leader Reid announced that he will include a “public option” (government-run insurance plan) in the final Senate health care reform bill.  While the language of the final Senate bill, like the final House bill, is not available for public consumption, it is not hard to predict what the inclusion of a “public option” means for abortion funding and coverage.

Reid’s bill is a conglomeration of the Senate Health, Education, Labor, and Pensions (HELP) Committee Bill, the Senate Finance Committee (Baucus) Bill, and whatever else the Democratic leadership wants.  While the HELP bill included a public option; the Baucus Bill did not, including a “co-op” instead.  The HELP bill did not state whether or not abortion coverage would be included in the public option; it left that decision to an administrative agency.  The Baucus bill specified that private plans could not be forced by an administrative agency to provide abortion coverage; however, it did not speak to a public option because it did not have one.  So, how do we know that the public option in Reid’s bill will include abortion coverage and funding?

Look across the Hill: The Capps Amendment, added to the House health care reform bill (H.R. 3200) explicitly allows the Secretary of the Department of Health and Human Services to include abortion coverage in the public option.  The amendment also requires funding of such abortion coverage if the Hyde Amendment is ever eliminated from the Labor, Health and Human Services (LHHS) annual appropriations bill. 

 What does this have to do with the Senate? 

 The abortion provisions in the Baucus bill were carefully modeled after the House Capps Amendment – the only reason the public option provision is missing is because the Baucus bill lacked a public option.  Therefore, it is highly likely that Reid will borrow the Capps public option provision and apply it to the public option in his own bill.

Even if Reid does not borrow the Capps language for his public option provision, administrative agencies and the courts are certain to include abortion as a mandatory minimum benefit in the public option, as they have done with statutory language in the past (see The Vulnerable Hyde Amendment and Abortion Mandate Flow Chart). 

That is why health care reform, including any public option, must include explicit language prohibiting abortion coverage and funding.  However, amendments to add such language were defeated in both the HELP and the Finance Committees.

So while AUL does not support or oppose the public option itself, we have grave concerns about what the inclusion of a public option will mean for thousands of unborn children, and for the American taxpayer who does not want to pay for abortions.

TAKE ACTION: Join Team Life via AUL Action’s RealHealthCareRespectsLife.com and make your voice heard in Washington.