In New Rule Published Today, Obama Administration Backs Off Funding Elective Abortions in High-Risk Insurance Program — But Vows This is “Not a Precedent” for Decisions on Future Health Programs

The Obama Administration, caught in a spotlight of publicity generated by mid-July releases from the National Right to Life Committee (NRLC), today issued a formal regulation that will prevent federal funding of elective abortions in just one of the new programs created by the health care bill signed into law by President Obama on March 23.

At issue is the Pre-Existing Condition Insurance Plan (PCIP), also known as the “high-risk pool” program, which is one of many programs created by the Patient Protection and Affordable Care Act (PPACA).  The high-risk pool program is completely federally funded ($5 billion), and may cover up to 400,000 people when fully implemented.

“Without blinking, the Obama Administration had approved high-risk pool plans submitted by at least three states that would have funded virtually all abortions – until NRLC raised the alarms starting on July 13,” said NRLC Legislative Director Douglas Johnson.  “In the regulation issued today, the Administration tells states that elective abortions may not be covered in the high-risk pool program – but simultaneously, the head of the White House Office of Health Reform, Nancy-Ann DeParle, issued a statement on the White House blog explaining that this decision ‘is not a precedent for other programs or policies given the unique, temporary nature of the program . . .’”

“This entire episode demonstrates what National Right to Life said in March – there is no language in the new health care law, and no language in Obama’s politically contrived March 24 executive order, that effectively prevents federal subsidies for abortion on demand,”Johnson said.  “This means that unless Congress repeals the health care law or performs major corrective surgery on it, there will be years of battles, as each new program is implemented, over how elective abortion will be covered – and the White House is suggesting that today’s policy will not necessarily be applied when implementing the other programs, some of which will cover far larger populations.”

“Lawmakers who voted for the gravely flawed bill must be held accountable, because we warned them that it left numerous doors open for federal subsidies for abortion,” Johnson said.

On July 23, the nonpartisan Congressional Research Service (CRS) issued a report confirming that neither the PPACA (the health care law signed by Obama), nor the March 24 executive order on abortion, nor the longstanding Hyde Amendment, prevent the use of funds in the new high-risk pool program from being used to cover all abortions, but added that the law does give the Secretary of HHS authority to impose “any other requirements determined appropriate by the Secretary” with respect to the high-risk pool program.  The CRS report is posted here (PDF).

In a July 22 report, www.FactCheck.org found that NRLC’s initial July 13 warning, which focused initially on abortion coverage in the HHS-approved plan submitted by Pennsylvania, was well founded. “It would be easy to miss the fact that Pennsylvania’s official solicitation called for coverage of all state-legal abortions,” FactCheck.org observed.   The FactCheck.org report is posted here.

On July 14, the Associated Press confirmed an NRLC report that New Mexico was enrolling people in the new program with a prospectus that explicitly covered “elective abortions.”  On July 16, NRLC confirmed that Maryland was also signing up enrollees based on a document that pointed to abortion coverage.

Some pro-abortion advocacy groups, and some members of Congress have suggested that the Administration should allow the new high-risk pool program to pay for abortions with “private funds.” NRLC’s Johnson commented, “It is a political scam to suggest that a federal program can pay for abortions, or anything else, with ‘private funds.’  When a federal program pays for abortions, that is federal funding of abortion.  To claim otherwise would be particularly absurd with respect to the high-risk pool program, since ‘the program is entirely funded by the federal government,’ as Nancy-Ann DeParle, head of the White House Office of Health Reform, noted in her statement posted on the White House blog today.  Any funds collected from enrollees become federal funds once the government has them, and when they are spent, that is federal spending.”

H.H.S. Approves Pennsylvania Plan to Use Federal Funds
to Subsidize Coverage of Nearly All Abortions
in New “High-Risk Pool” Program

WASHINGTON (July 13, 2010) –  The Obama Administration will give Pennsylvania $160 million to set up a new “high-risk” insurance program under a provision of the federal health care legislation enacted in March — and has quietly approved a plan submitted by an appointee of Governor Edward Rendell (D) under which the new program will cover any abortion that is legal in Pennsylvania.

The high-risk pool program is one of the new programs created by the sweeping health care legislation (the Patient Protection and Affordable Care Act) that President Obama signed into law on March 23.  The law authorizes $5 billion in federal funds for the program, which will cover as many as 400,000 people when it is implemented nationwide.

“The Obama Administration will give Pennsylvania $160 million in federal tax funds, which we’ve discovered will pay for insurance plans that cover any legal abortion,” said Douglas Johnson, legislative director for the National Right to Life Committee (NRLC), the federation of right-to-life organizations in all 50 states.  “This is just the first proof of the phoniness of President Obama’s assurances that federal funds would not subsidize abortion — but it will not be the last.” Read more…

June 15, 2010

RE: “DISCLOSE Act” (H.R. 5175)
Dear Member of Congress:

On May 27, 2010, we wrote to you to express our strong objections to the so-called “DISCLOSE Act” (H.R. 5175), as reported by the Committee on House Administration, which we characterized as an “attack on the First Amendment rights of your constituents and the private organizations with which they choose to associate.” Our letter provided detailed comments on some of the most objectionable provisions of the bill, which we will not repeat here (http://www.nrlc.org/FreeSpeech/NRLCletteronDISCLOSEAct.pdf).

More recently, House Administration Committee Chairman Brady proposed several modifications to the bill in the form of amendments filed at the Rules Committee. Mr. Brady’s proposed changes range from minor to completely phony; they do not mitigate the nature or force of the objections that we expressed in our May 27 letter.

As we indicated previously, NRLC is the furthest thing from a “shadow” group. Our organization’s name and contact information always appear on our public communications, and we openly proclaim the public policies that we advocate. But there is very little in this bill, despite the pretenses, that is actually intended to provide useful or necessary information to the public. The overriding purpose is precisely the opposite: To discourage, as much as possible, disfavored groups (such as NRLC) from communicating about officeholders, by exposing citizens who support such efforts to harassment and intimidation, and by smothering organizations in layer on layer of record keeping and reporting requirements, all backed by the threat of civil and criminal sanctions.

On June 14, Congressman Clyburn’s office circulated a description of an additional change that the authors plan to make, which is being referred to informally as the “NRA carve-out.” While no legislative language for this amendment is yet available, the summary description is as follows:

Exempt Organizations from Disclosure: Section 501(c)(3) charitable organizations are exempt from the new disclosure requirements. “Exempt section 501(c)(4) organizations” are also exempt from new reporting requirements. These are organizations which have qualified as having tax exempt status under section 501(c)(4) of the tax code for each of the 10 years prior to making a campaign-related disbursement, that had 1 million or more dues-paying members in the prior calendar year, that had members in each of the 50 states, that received no more than 15 percent of their total funding from corporations or labor organizations, and that do not use any corporate or union money to pay for their campaign-related expenditures.

Based on this description of the “carve out,” we offer several observations. First, with respect to the National Right to Life Committee (NRLC), this amendment is not only worthless, but adds insult to injury. NRLC is a federation of affiliated Right to Life organizations in all 50 states, each of which is separately incorporated, and each of which has its own membership structure. While the aggregate number of donors and members of the 50 state affiliates and their chapters exceeds the arbitrary one-million threshold, no individual affiliated corporation has one million “members,” nor does the federation headquarters (separately incorporated) meet that criterion. But why should this matter? Why should a movement that is comprised overwhelmingly of grassroots citizen-activists be penalized for adopting a federation structure?

It is perfectly understandable that another advocacy group that has a centralized corporate structure, and a unitary national membership roll, should wish to protect the privacy rights of its donors, and to avoid some of the crippling administrative burdens and legal traps that would be imposed by multiple provisions of H.R. 5175. But what conceivable public policy justification can be offered for imposing those very same burdens on much smaller organizations that are far poorer in the financial, administrative, and legal resources that would be demanded by the proposed array of legal traps, overlapping and accelerated reporting requirements, verbose “disclaimers,” and other devices contained in H.R. 5175 — requirements that were clearly crafted for the very purpose of deterring speech?

Certainly, there can be no constitutional justification for the carve-out distinction. The U.S. Supreme Court has ruled that the First Amendment protects the right of incorporated groups of citizens to communicate with the public to express opinions about the actions of those who hold or seek federal office. The authors of the DISCLOSE Act have demonstrated that their overriding intent is to impede and deter the exercise of that constitutional right. The justifications offered for such legislation rest on the unspoken premise that the American people lack the capacity to properly evaluate advertising or other forms of mass communication, so the incumbent lawmakers will take it upon themselves to protect their hapless constituents from such troublesome communications, in order to prevent them from being “unduly influenced” — and all of this is being deemed necessary to “protect democracy.”

However, the same authors now in effect propose that such “undue influence” is tolerable only if it is exercised by an especially big organization with a centralized corporate structure and large centralized professional staff. This is yet another demonstration that the real principle guiding the authors of the DISCLOSE Act is no principle at all, except crude self interest: They wish to mute as many as possible of the independent voices that might otherwise convey unflattering information to their constituents regarding legislative records and the policies of the current Administration.

One can imagine the outcry that would ensue if a lawmaker proposed that a substantial new “advocacy surtax” should be placed on all newspapers and opinion periodicals, but also proposed an exception for those publications with a national circulation of over one million. The institutional news media would characterize the tax itself as an outrageous infringement on the First Amendment, and the exception as an unsavory, unprincipled attempt to mute opposition by the largest and most influential publications. But there is not one First Amendment for the institutional news media and another First Amendment for everybody else. As the U.S. Supreme Court said in Citizens United v. FEC, “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”

We strongly urge you to oppose this pernicious, unprincipled, and unconstitutional legislation. The National Right to Life Committee (NRLC) will include the roll call on passage of H.R. 5175 in our scorecard of key roll calls for the 111th Congress, and reserves the right to also score key procedural votes on this measure. In our scorecard and advocacy materials, the legislation will be accurately characterized as a blatant political attack on the First Amendment rights of NRLC, our state affiliates, and our members and donors.

Sincerely,

David N. O’Steen, Ph.D                                          Douglas Johnson
Executive Director                                                   Legislative Director

(Please note: The just-published June edition of National Right to Life News, currently being disseminated to pro-life activists nationwide, highlights the DISCLOSE Act as the cover story. This article can be downloaded from the NRLC website here: http://www.nrlc.org/freespeech/NRLNewsDISCLOSEAct.pdf )

Today West Virginia Governor Joe Manchin (D) signed the Ultrasound Option Bill (SB 597) into law in a signing ceremony in Charleston.  The bill passed both the West Virginia House of Delegates and Senate by overwhelming margins earlier this spring.  West Virginia becomes the 20th state to enact some form of provision giving women the opportunity to view an ultrasound before an abortion.
“Abortion is one of the most common, yet under regulated procedures performed in the United States,” said National Right to Life Director of State Legislation Mary Spaulding Balch, J.D. “Accurate information empowers us to make informed decisions. We would never expect a person to undergo any procedure without having all possible information at their disposal before consenting.  Abortion is no different.  Women deserve to have all of the facts at their disposal before making the life and death decision that will affect themselves and their unborn children.”
The state’s Women’s Right to Know Law provides women and girls seeking an abortion, 24 hours prior to the procedure, scientifically accurate information about fetal development, abortion alternatives and potential risks of the abortion procedure.  The Ultrasound Option Bill adds information to those materials provided informing women that if an ultrasound is conducted with the abortion, she may view or decline to view the real-time ultrasound image.

The full text of the Ultrasound Option Bill is available online here:

http://www.legis.state.wv.us/Bill_Text_HTML/2010_SESSIONS/RS/Bills/SB597%20SUB2%20enr.htm

“Common sense laws which further regulate the abortion industry, like West Virginia’s Ultrasound Option Bill, enjoy the support of a large number of Americans.  We will continue to work with other states to pass laws which protect mothers and their unborn children,”Balch added.