Subcommittee Mark-Up, Hearing Puts Abortion Debate in Spotlight

On February 11, the House Energy and Commerce Subcommittee on Health approved, 14-9, H.R. 358, the Protect Life Act. On February 9, the subcommittee held a hearing on the bill. Earlier in the week, the House Judiciary Subcommittee on the Constitution held a hearing on similar legislation, the No Taxpayer Funding for Abortion Act (H.R. 3) (see The Source, 2/11/11).

Sponsored by Chair Joe Pitts (R-PA), the measure would amend the Patient Protection and Affordable Care Act (P.L. 111-148) to prohibit federal funds from being used to cover any costs of a health plan that includes abortion services, except in cases of rape, incest, or to protect the life and health of the mother. Under the current law, federal funds may not be used for abortion services and plans receiving such funds must keep them segregated from any funds for abortion services. H.R. 358 also would prohibit discrimination against health care providers or entities that do not provide abortion services.

During consideration of the bill, the subcommittee approved, by voice vote, a substitute amendment by Rep. Pitts to permit funding for abortions in all instances of rape and incest. The original bill would have allowed funding for abortions in cases of “forcible rape” and for incest victims who are minors.

The subcommittee rejected:

• An amendment by Rep. Henry Waxman (D-CA) to permit the bill to apply if the secretary of Health and Human Services (HHS) certifies that it would not affect the availability of coverage offered by private insurers, 9-16;
• An amendment by Rep. Eliot Engel (D-NY) to extend the conscience clause to health care entities that provide abortion services, 9-16;
• An amendment by Rep. Jan Schakowsky (D-IL) to limit the conscience clause, 9-15;
• An amendment by Rep. Frank Pallone (D-NJ) to ensure that the conscience clause does not interfere with the provision of emergency abortion services, 9-15; and
• An amendment by Rep. Lois Capps (D-CA) to prevent the secretary of HHS from issuing regulations or states from enacting laws that create barriers to appropriate and timely medical services, 9-14.

During the hearing, Rep. Pitts said, “For decades, there has been a clear prohibition against the use of federal dollars to pay for abortion. The Patient Protection and Affordable Care Act (PPACA) opened the door, for the first time in decades, to government financing of abortion. My colleagues will recall that the House acted affirmatively to fix this, in a strongly bipartisan vote of 240 to 194. We are all aware that abortion itself can be a controversial subject. What is far less controversial is the question of whether the taxpayers should be financing it. The Stupak-Pitts Amendment affirmed the view of 60 to 70 percent of Americans that government taxpayer money should not be involved in abortion. Unfortunately, the Senate did not see fit to include the House’s prohibition in its version of the bill, and it was the Senate bill that became law. We need to be clear about some things as we start. The government does not finance abortions and has not done so for decades – thanks to the Hyde Amendment. Moreover, the government has never told any medical professional or medical institution that it must perform abortions. This bill seeks to clarify these policies and give them permanence.”

Rep. Henry Waxman (D-CA), Energy and Commerce Committee ranking member, expressed his disapproval of the legislation, saying, “The bill before us today is an attack on one of the most hard-fought but delicately balanced provisions of the Affordable Care Act – those related to abortion. Those provisions – authored by Senator [Ben] Nelson [(D-NE)], whose pro-life record speaks for itself – clearly and unequivocally: prohibit the use of federal funds for abortion; keep state and federal abortion-related law in place; and ensure that those whose conscience dictates against abortion are protected and not discriminated against. Mr. Pitts’s legislation – the subject of today’s hearing – goes far beyond this. By restricting insurance plans’ flexibility regarding abortion coverage, the Pitts bill will result in a virtual shut-down of private coverage of this service. The bill also takes away the Affordable Care Act’s limited anti-discrimination protection for those providers whose conscience dictates that women should have access to abortion – a legal and medically appropriate service…Taken as a whole, the bill is nothing more than a full-throttled attack on abortion – at worst, to take away a women’s right to choose, or at best, to make it meaningless.”

Focusing her testimony on the conscience protection provisions of H.R. 358, Helen Alvaré, associate professor of law, George Mason University School of Law, and senior fellow, Witherspoon Institute, said, “[I]t appears that what opponents of conscience protections – which they call ‘refusal clauses’ – actually intend, is to force the government and conscience-driven private providers to give them what the market has steadfastly refused: widely dispersed sources for abortions provided in hygienic medical settings. What they have instead – even after 38 years of legal abortion in the United States – is a market that looks like this: 87 percent of U.S. counties with no abortion provider; steadily declining numbers of abortion clinics (whose decline began long before clinic prayer vigils and protests began in earnest), largely due to the stigma associated with abortion among physicians and in the medical profession generally; delivery of abortions, in the words of the New York Times, at the ‘margins of medical practice,’ i.e., abortions being performed in the vast majority of cases in free standing clinics (many run by one vocal interest group, Planned Parenthood) with relatively few (about five percent) abortions provided in hospitals or doctors’ offices; and a steady stream of reports of abortion providers violating the most basic standards of health care for vulnerable women, or violating even women‘s human rights.”

“The Protect Life Act would exclude the sale of health plan products that cover and pay for prohibited abortions, even if the additional coverage is paid for with private funds,” said Sara Rosenbaum, chair, Department of Health Policy, George Washington University. She continued, “Health plans, whose terms of coverage and payment reach excluded procedures, even if medically indicated, would not qualify for either refundable tax credits or cost-sharing assistance. In other words, the amendments would upend the compromise reached prior to final passage. Such an amendment would have a far-reaching impact. Although it would permit a supplemental coverage market if premiums are paid for with non-federal funds, the bill bars supplemental coverage whose administration is not entirely supported out of supplemental payments. This condition can be expected to lead to the complete exodus of abortion coverage from the affected market, help move the entire health insurance market away from coverage of barred procedures, and trigger dangerous spillover effects on women’s access to health care. The ban contained in the Protect Life Act, when combined with the tax reforms contained in H.R. 3, No Taxpayer Funding for Abortion Act, will produce an industry-wide impact that will shift the standard of coverage for medically indicated abortions for all women. In view of how the health benefit services industry operates and how insurance product design responds to broad regulatory intervention aimed at reshaping product content, the coverage exclusions imposed can be expected to have an industry-wide impact, eliminating coverage of medically indicated abortions over time for all women, not only those whose coverage is derived through a health insurance exchange. As a result, this bill, particularly when combined with H.R. 3, can be expected to propel the industry away from current norms of coverage for medically indicated abortions. In combination with H.R. 3 and existing Hyde Amendment provisions applicable to Medicaid and other federal programs (including the federal employee health benefits program), the Protect Life Act will lead insurers to recalibrate product design away from any abortion coverage across the board, in order to accommodate the ban on products.”

Douglas Johnson, federal legislative director, National Right to Life Committee testified in support of H.R. 358, saying, “[W]hen a federal program pays for abortion or subsidizes health plans that cover abortion, [it] constitutes federal funding of abortion – no matter what deceptive labels or gimmicks might be employed to conceal the reality. The claim, made by advocates of PPACA and its precursor bills during the 111th Congress, that a federal agency can send checks to abortionists to pay for abortions, but without employing public funds, amounts to a political hoax. The federal government collects monies through various mechanisms, but once collected, they become public funds -- federal funds. When government agencies use such funds to pay for abortions, [it] is federal funding of abortion.