There has been a great amount of discussion concerning abortion and current health care legislation. Is it in? Is it out? First of all, the entire concept of the fed’s involvement in health care is unconstitutional, but that seems not to matter. So here’s info on the abortion language for readers.
Senate Bill – For reference, the Senate language on abortion within Section 1303 (link goes to exact section on OpenCongress.org) of H.R 3590 is below, I’ve also got the Executive Order language below the full text of Section 1303 (you’ve got to scroll a bit), but it seems to be a draft at this point as there is nothing official on WhiteHouse.gov.
House Bill with Stupak Amendment – The original Stupak Amendment from November (House Amendment 509) – amended H.R. 3962 and passed in the House 240-194 – strongly restricted federal funding of abortion. Check out Section 265 of H.R. 3962 which is the House bill that passed, but is was not considered this weekend at all – it’s just the Senate and reconciliation bills.
Reconciliation Bill – The full text of the reconciliation bill that “fixed” the Senate bill and made it “more acceptable” to House members is H.R. 4872 and it does nothing to change the abortion language in Section 1303 of H.R. 3590.
Caving on Abortion
Rep. Bart Stupak (D-Mich.) and the other “pro-life” Democrats flat out caved under the pressure today. There is no other explanation. There is nothing, and I mean nothing in the language of the reconciliation bill or the Executive Order that changes Section 1303 of H.R. 3590 (the Senate health care bill).
So that begs the question. If the Executive Order does nothing to change the bill – which would be unconstitutional in the first place – why the objections from Stupak and the other cavers since last fall? Why cave this weekend?
Section 1303 of the Senate bill – which is the only thing that matters right now – creates a convoluted mess, where there is no way to really segregate the amount of funds – determined by the Department of Health and Human Services secretary – that can be used for the abortion of babies.
In the Senate bill, an insurance exchange plan – subsidized by the federal government – must be available that offers abortion services. Sure, they are trying to segregate a specified dollar amount of the total premium, but this is simply an accounting trick as far as I’m concerned.
Before the text, plenty of bloggers have been busy today with tons of posts. Get your fill and read on. AP at Hot Air here and here. Jim Hoft at Gateway Pundit here and here. Michelle Malkin here and here. All writing on the Stupak abortion cave.
Full Text of Section 1303 in the Senate Bill
(Sorry about the formatting of the following. I should spend the time to properly indent, but I’m not going to.)
SEC. 1303. SPECIAL RULES.
(a) Special Rules Relating to Coverage of Abortion Services
(1) VOLUNTARY CHOICE OF COVERAGE OF ABORTION SERVICES
(A) IN GENERAL- Notwithstanding any other provision of this title (or any amendment made by this title), and subject to subparagraphs (C) and (D)
(i) nothing in this title (or any amendment made by this title), shall be construed to require a qualified health plan to provide coverage of services described in subparagraph (B)(i) or (B)(ii) as part of its essential health benefits for any plan year; and
(ii) the issuer of a qualified health plan shall determine whether or not the plan provides coverage of services described in subparagraph (B)(i) or (B)(ii) as part of such benefits for the plan year.
(B) ABORTION SERVICES
(i) ABORTIONS FOR WHICH PUBLIC FUNDING IS PROHIBITED- The services described in this clause are abortions for which the expenditure of Federal funds appropriated for the Department of Health and Human Services is not permitted, based on the law as in effect as of the date that is 6 months before the beginning of the plan year involved.
(ii) ABORTIONS FOR WHICH PUBLIC FUNDING IS ALLOWED- The services described in this clause are abortions for which the expenditure of Federal funds appropriated for the Department of Health and Human Services is permitted, based on the law as in effect as of the date that is 6 months before the beginning of the plan year involved.
(C) PROHIBITION ON FEDERAL FUNDS FOR ABORTION SERVICES IN COMMUNITY HEALTH INSURANCE OPTION
(i) DETERMINATION BY SECRETARY- The Secretary may not determine, in accordance with subparagraph (A)(ii), that the community health insurance option established under section 1323 shall provide coverage of services described in subparagraph (B)(i) as part of benefits for the plan year unless the Secretary
(I) assures compliance with the requirements of paragraph (2);
(II) assures, in accordance with applicable provisions of generally accepted accounting requirements, circulars on funds management of the Office of Management and Budget, and guidance on accounting of the Government Accountability Office, that no Federal funds are used for such coverage; and
(III) notwithstanding section 1323(e)(1)(C) or any other provision of this title, takes all necessary steps to assure that the United States does not bear the insurance risk for a community health insurance option’s coverage of services described in subparagraph (B)(i).
(ii) STATE REQUIREMENT- If a State requires, in addition to the essential health benefits required under section 1323(b)(3) (A), coverage of services described in subparagraph (B)(i) for enrollees of a community health insurance option offered in such State, the State shall assure that no funds flowing through or from the community health insurance option, and no other Federal funds, pay or defray the cost of providing coverage of services described in subparagraph (B)(i). The United States shall not bear the insurance risk for a State’s required coverage of services described in subparagraph (B)(i).
(iii) EXCEPTIONS- Nothing in this subparagraph shall apply to coverage of services described in subparagraph (B)(ii) by the community health insurance option. Services described in subparagraph (B)(ii) shall be covered to the same extent as such services are covered under title XIX of the Social Security Act.
(D) ASSURED AVAILABILITY OF VARIED COVERAGE THROUGH EXCHANGES
(i) IN GENERAL- The Secretary shall assure that with respect to qualified health plans offered in any Exchange established pursuant to this title
(I) there is at least one such plan that provides coverage of services described in clauses (i) and (ii) of subparagraph (B); and
(II) there is at least one such plan that does not provide coverage of services described in subparagraph (B)(i).
(ii) SPECIAL RULES- For purposes of clause (i)
(I) a plan shall be treated as described in clause (i)(II) if the plan does not provide coverage of services described in either subparagraph (B)(i) or (B)(ii); and
(II) if a State has one Exchange covering more than 1 insurance market, the Secretary shall meet the requirements of clause (i) separately with respect to each such market.
(2) PROHIBITION ON THE USE OF FEDERAL FUNDS
(A) IN GENERAL- If a qualified health plan provides coverage of services described in paragraph (1)(B)(i), the issuer of the plan shall not use any amount attributable to any of the following for purposes of paying for such services:
(i) The credit under section 36B of the Internal Revenue Code of 1986 (and the amount (if any) of the advance payment of the credit under section 1412 of the Patient Protection and Affordable Care Act).
(ii) Any cost-sharing reduction under section 1402 of thePatient Protection and Affordable Care Act (and the amount (if any) of the advance payment of the reduction under section 1412 of the Patient Protection and Affordable Care Act).
(B) SEGREGATION OF FUNDS- In the case of a plan to which subparagraph (A) applies, the issuer of the plan shall, out of amounts not described in subparagraph (A), segregate an amount equal to the actuarial amounts determined under subparagraph (C) for all enrollees from the amounts described in subparagraph (A).
(C) ACTUARIAL VALUE OF OPTIONAL SERVICE COVERAGE
(i) IN GENERAL- The Secretary shall estimate the basic per enrollee, per month cost, determined on an average actuarial basis, for including coverage under a qualified health plan of the services described in paragraph (1)(B)(i).
(ii) CONSIDERATIONS- In making such estimate, the Secretary
(I) may take into account the impact on overall costs of the inclusion of such coverage, but may not take into account any cost reduction estimated to result from such services, including prenatal care, delivery, or postnatal care;
(II) shall estimate such costs as if such coverage were included for the entire population covered; and
(III) may not estimate such a cost at less than $1 per enrollee, per month.
(3) PROVIDER CONSCIENCE PROTECTIONS- No individual health care provider or health care facility may be discriminated against because of a willingness or an unwillingness, if doing so is contrary to the religious or moral beliefs of the provider or facility, to provide, pay for, provide coverage of, or refer for abortions.
(b) Application of State and Federal Laws Regarding Abortion
(1) NO PREEMPTION OF STATE LAWS REGARDING ABORTION- Nothing in this Act shall be construed to preempt or otherwise have any effect on State laws regarding the prohibition of (or requirement of) coverage, funding, or procedural requirements on abortions, including parental notification or consent for the performance of an abortion on a minor.
(2) NO EFFECT ON FEDERAL LAWS REGARDING ABORTION
(A) IN GENERAL- Nothing in this Act shall be construed to have any effect on Federal laws regarding
(i) conscience protection;
(ii) willingness or refusal to provide abortion; and
(iii) discrimination on the basis of the willingness or refusal to provide, pay for, cover, or refer for abortion or to provide or participate in training to provide abortion.
(3) NO EFFECT ON FEDERAL CIVIL RIGHTS LAW- Nothing in this subsection shall alter the rights and obligations of employees and employers under title VII of the Civil Rights Act of 1964.
(c) Application of Emergency Services Laws- Nothing in this Act shall be construed to relieve any health care provider from providing emergency services as required by State or Federal law, including section 1867 of the Social Security Act (popularly known as ‘EMTALA’).
Below is a draft of the Executive Order scheduled for release today, with what I consider the highlight of the order emphasized in bold.
ENSURING ENFORCEMENT AND IMPLEMENTATION OF ABORTION RESTRICTIONS IN THE PATIENT PROTECTION AND AFFORDABLE CARE ACT
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the “Patient Protection and Affordable Care Act” (approved March ¬¬__, 2010), I hereby order as follows:
Section 1. Policy.
Following the recent passage of the Patient Protection and Affordable Care Act (“the Act”), it is necessary to establish an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment. The purpose of this Executive Order is to establish a comprehensive, government-wide set of policies and procedures to achieve this goal and to make certain that all relevant actors—Federal officials, state officials (including insurance regulators) and health care providers—are aware of their responsibilities, new and old.
The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly-created health insurance exchanges. Under the Act, longstanding Federal laws to protect conscience (such as the Church Amendment, 42 U.S.C. §300a-7, and the Weldon Amendment, Pub. L. No. 111-8, §508(d)(1) (2009)) remain intact and new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.
Numerous executive agencies have a role in ensuring that these restrictions are enforced, including the Department of Health and Human Services (HHS), the Office of Management and Budget (OMB), and the Office of Personnel Management (OPM).
Section 2. Strict Compliance with Prohibitions on Abortion Funding in Health Insurance Exchanges.
The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014. The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered) and requires state health insurance commissioners to ensure that exchange plan funds are segregated by insurance companies in accordance with generally accepted accounting principles, OMB funds management circulars, and accounting guidance provided by the Government Accountability Office.
I hereby direct the Director of OMB and the Secretary of HHS to develop, within 180 days of the date of this Executive Order, a model set of segregation guidelines for state health insurance commissioners to use when determining whether exchange plans are complying with the Act’s segregation requirements, established in Section 1303 of the Act, for enrollees receiving Federal financial assistance. The guidelines shall also offer technical information that states should follow to conduct independent regular audits of insurance companies that participate in the health insurance exchanges. In developing these model guidelines, the Director of OMB and the Secretary of HHS shall consult with executive agencies and offices that have relevant expertise in accounting principles, including, but not limited to, the Department of the Treasury, and with the Government Accountability Office. Upon completion of those model guidelines, the Secretary of HHS should promptly initiate a rulemaking to issue regulations, which will have the force of law, to interpret the Act’s segregation requirements, and shall provide guidance to state health insurance commissioners on how to comply with the model guidelines.
Section 3. Community Health Center Program.
The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program. Existing law prohibits these centers from using federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language. Under the Act, the Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers under section 10503 and all other relevant provisions. I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law. Such actions should include, but are not limited to, updating Grant Policy Statements that accompany CHC grants and issuing new interpretive rules.
Section 4. General Provisions.
(a) Nothing in this Executive Order shall be construed to impair or otherwise affect: (i) authority granted by law or presidential directive to an agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This Executive Order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This Executive Order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees or agents, or any other person.