As the beneficiary of 16 years of Catholic education, eight of them under the tutelage of the Sisters of Charity in Cincinnati, I am inclined by habit to nod in swift concurrence whenever the good sisters speak. Not today.
A letter released yesterday by 60 leaders of Catholic women’s religious orders argues that the Senate-passed version of health care reform does not provide for funding of elective abortion and is thus the “REAL [capitalization in original] pro-life” option. The Catholic bishops, the non-sectarian National Right to Life Committee and, this morning, the Council of Major Superiors of Women Religious strongly disagree.
The dispute has emerged with greater force after it became clear last week that any commitment by the Democratic leadership in Congress to “fix” the Senate bill’s defective abortion limitation language was unenforceable – a piecrust promise. Not only would the Senate’s traditionally stronger corps of anti-Hyde amendment votes ensure defeat of any abortion language fix, but 41 Republican senators signed a letter to oppose any policy-making on the reconciliation bill that would ferry the fix to enactment – a pledge that clearly would include the doomed abortion limitation.
As a consequence, the Senate bill’s multiple pathways to subsidize health plans that include elective abortion or to even fund abortion directly will become law once the House passes the Senate bill and sends it to President Obama. The women religious who have advocated this course are part of a small chorus of Catholic voices who argue that the Senate bill seals off taxpayer participation in abortion, and particularly that the community health services funding in the bill is covered by Department of Health and Human Services regulations that bar their use in any facility or program that provides elective abortion.
But the argument is circular. The regulations cited are based on the Hyde amendment itself, which applies to funds appropriated in the annual spending bill for HHS. The Senate health bill directly appropriates $8.5 billion over five years to HHS for community health centers, and if the Hyde amendment is to be construed as applicable to these funds it is clearly voluntary on HHS’s part. The case is strengthened by the fact that the Senate bill, H.R. 3590, explicitly applies an abortion funding exclusion to other new spending included in the Senate bill, for example, new money for school-based clinics.
The Senate bill contains no parallel exclusion for the community health centers. The White House and HHS officials contend that the existing Hyde Amendment regulations will be applied to these funds. House members inclined to disbelieve this pledge have evidence for their position. Within the past 14 months the Obama Administration has: 1) restored foreign assistance funds to family planning groups that provide and promote abortion overseas; 2) championed and achieved legislation for the District of Columbia to spend local government revenue on abortion even though the funds pass through the U.S. Treasury; and 3) rescinded regulations promulgated under the Bush administration to give teeth to statutory conscience rights that had hitherto lacked regulatory implementation. In short, regulatory interpretations and policies can change – and change overnight.
Moreover, fresh litigation from pro-choice groups over this issue is likely, as on many other provisions of the bill. Of the 17 states that currently provide public money for abortion under state insurance plans, 13 do so as a result of court decision.
The contention that the extant HHS regulations regarding the Hyde Amendment apply — when the Senate bill is silent on the matter, the Obama administration clearly favors the opposite outcome, and the issue is a primary stumbling block to passage of a bill strong majorities of Americans oppose on other grounds as well – is conveniently timed but ultimately unpersuasive, the good sisters notwithstanding.
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.