Ever since the U.S. Senate voted in December to provide new funding for Federally Qualified Health Centers in its version of health care reform, analysts have pointed out that these monies are not covered by the Hyde Amendment, the measure dating from 1976 that sharply limits federal financing of abortion. As a consequence, these new funds appropriated by the Senate bill, which is now being moved through the House of Representatives by an extraordinary legislative device, are available without statutory limit to underwrite elective abortions.
Yesterday the Obama Administration issued a internal memorandum from the Department of Health and Human Services (HHS) attempting to undercut this conclusion. The memo states that even in the absence of the statutory prohibition contained in the Hyde Amendment, longstanding regulations in place at HHS would “prohibit federal funds from being used for abortion services.” The memo notes that “[t]he president and Secretary [of HHS Kathleen] Sebelius have repeatedly stated their strong commitment to ensuring that health insurance reform does not change the status quo on abortion policy.”
The HHS memo has little or no status as a matter of law. It amounts to the issuance of another promise that legislators and citizens can evaluate on the merits. Because the regulations cited in the memo would be applied voluntarily by HHS to any funds not included in a future appropriations measure containing the Hyde Amendment (the FQHC funds appropriated by the Senate bill cover five full years of spending), HHS would not be obligated to apply the standards of the Hyde Amendment to these funds. The flexibility of federal agencies to expand or limit reasonable interpretations of the law has been demonstrated both in the context of abortion policy in federally funded family planning clinics and in the Obama administration’s rescission of conscience regulations last March.
The Obama administration’s argument also relies on a press release from the National Association of Community Health Centers, which asserted that these centers “do not plan to, nor are they seeking to, become providers of abortion.” While the release may have been issued in good faith, it has no policy force with respect to the nation’s 1,250 FQHCs. These centers, moreover, are under intense public scrutiny at a moment of decision on the President’s “signature” domestic policy issue. It is more instructive to look to their views when that scrutiny was largely absent.
In 2009 First Lady Michelle Obama paid her first visit to a nonprofit organization in the nation’s capital – choosing a clinic network called Mary’s Center. The Center is an FQHC and it focuses on promoting “healthy pregnancies, improv[ing] birth outcomes, and reduc[ing] infant mortality.” While Mary’s Center does not publicize a policy on providing abortion, its President/CEO Maria S. Gomez proudly lists on her official biography her receipt of the 2002 “Champions of Choice” Award from Planned Parenthood of Washington, D.C., a major area abortion provider. The award is given each year to an advocate of “choice,” a standard locution for abortion.
More significantly, key personnel from Mary’s Center were participants in a 2001 National Consortium convened by the National Abortion Federation. The Consortium issued a report titled “Increasing Access to Abortion for Women in Diverse Communities.” The report issued formal recommendations for policy changes. The singular domestic policy change: repeal of the Hyde Amendment. The report described this recommendation as “the universal consensus at the Consortium.” With passage of the Senate bill and signature by the President, the Consortium will be well on its way to that goal.
You can read Part One here.
A piecrust promise is one that is easily made and easily broken. The promise – more a rumor than anything else – that the U.S. Senate will use the reconciliation process to adopt a strong ban on abortion funding if the House passes the Senate-approved bill is flakier than most. Never before in the history of the 34-year abortion funding debate have pro-life members of Congress approved a bill containing abortion funding on the promise that a subsequent vote will fix the problem.
The scenario being discussed in the media requires some explanation. The House-passed version of health care reform includes the blanket provision known as Stupak-Pitts. This provision applies to all the terms of the House bill, makes the traditional Hyde Amendment language on abortion (allowing funding only when the life of the mother is at stake and in instances of rape and incest) permanent, and permits individuals to buy abortion coverage only as a personally elected and paid for rider on their policy. The Senate-passed bill, H.R 3590, include numerous mechanisms whereby abortion is either directly funded, subsidized through the state and federal exchanges created under the bill, or susceptible to inclusion via interpretations by the Department of Health and Human Services and the Office of Personnel Management.
Reports have surfaced of a deal whereby the House would approve the Senate bill on a promise that the abortion language would be fixed in reconciliation. There are at least two (related) problems with this scenario. First, it would require the U.S. Senate, with a maximum of 45 votes for strong limits on abortion funding, to approve a permanent pro-life amendment that meets the stringent standard set by Stupak-Pitts. Second, it would require Stupak and a cadre of pro-life Democrats that numbers a dozen or more to vote for a bill that the National Right to Life Committee has described as “the most pro-abortion single piece of legislation that has ever come to the House floor for a vote, since Roe v. Wade” and a “career-defining” vote on abortion policy.
In this scenario, members in both chambers execute votes that are the polar opposite of their actual views and against the desires of their strongest supporters. Both would be doing so on the basis of promises that no one can predict will be kept. The pro-life House members are being asked to believe that once the Senate-passed bill is adopted in toto by the House and signed by President Obama, the Senate, with its pro-abortion majority, will proceed to enact a permanent abortion funding limitation and other provisions that it did not deem wise to include in its own bill, which will be the law of the land.
The senators who opposed Stupak-Pitts will be asked to believe that they can return next year, or at some other distant date, and join with President Obama in repealing the permanent Stupak-Pitts law and install full federal funding of elective abortion. President Obama for his part says the bill he supports has no federal funding for abortion, a finesse at best. Is it credible that the President will proceed in 2011 and 2012 and support repeal of Stupak-Pitts, a measure that the latest surveys say has as much as 72 percent public support, as he seeks reelection in 2012?
Senators opposed to Stupak-Pitts have no reason to believe this, and thus pro-life House Democrats have no reason to believe that the “reconciliation fix” on abortion is anything more than a piecrust promise. If they were to proceed anyway and vote for H.R. 3590, it would indeed be “career-defining” for these House members who have so far stood tall for their, and their constituents’, convictions.