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.”

The National Right to Life Committee (NRLC), the federation of right-to-life organizations in all 50 states, today urged the U.S. House of Representatives to reject the “DISCLOSE Act” (H.R. 5175), which it called a “bullying political power grab,” which is “not a curb on corruption, but itself a type of corruption — a corruption of the lawmaking process, by which incumbent lawmakers employ the threat of criminal sanctions, among other deterrents, to reduce the amount of private speech regarding the actions of the lawmakers themselves.”  NRLC said that it would include the dispositive roll calls on the measure in its scorecard of key votes for the current Congress.

The four-page letter, signed by NRLC Executive Director David N. O’Steen and Legislative Director Douglas Johnson, said that the bill “has been carefully crafted to maximize short-term political benefits for the dominant faction of one political party, while running roughshod over the First Amendment protections for political speech that have been clearly and forcefully articulated by the U.S. Supreme Court.”  The letter discusses a number of ways in which the legislation is designed to “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.”  The letter suggests that the bill be amended to clarify that “DISCLOSE” actually stands for “Deterring Independent Speech about Congress except by Labor Organizations and Selected Elites.”

The House Democratic leadership had apparently intended to bring the bill to the House floor tomorrow (May 28), but — faced by a rising chorus of protests from a broad array of organizations — has now postponed floor action until the week of June 7.

Full text of letter available here.  Or in PDF form here.

Today, the Oklahoma state legislature overrode Governor Brad Henry’s veto of two bills that will protect mothers and their unborn children. By separate 36-12 votes, both the Ultrasound bill (HB2780) and the Wrongful Birth/Wrongful Life bill (HB2656) cleared the Oklahoma Senate. Both bills cleared the override hurdle in the Oklahoma House of Representatives yesterday.

“This is a victory for the women of Oklahoma and their unborn children,” said National Right to Life Director of State Legislation Mary Spaulding Balch, J.D. “Abortion is a business: the less time spent with a woman, the less information given to her, the more sales made. This ultrasound law protects a mother’s right to know something about her developing unborn child.”

The ultrasound bill requires that before an abortion can be performed, an ultrasound must be performed and displayed so that the woman may view the image of her unborn child. The Oklahoma ultrasound law is the strongest, most protective law of its kind. Nineteen other states have enacted similar legislation that provides women the opportunity to view an ultrasound of their unborn children before an abortion.

“Ultrasound gives a mother a window to her womb. It helps to prevent her from making a decision she may regret for the rest of her life and it empowers her with the most accurate information about her pregnancy so that she can make a truly informed ‘choice’,” Balch added.

In passing Oklahoma’s wrongful birth/wrongful life bill, the legislature recognized that “the birth of a child does not constitute a legally recognizable injury,” and that legal action related to the birth of a child may not be brought “based on a claim that a person’s act or omission contributed to the mother’s not having obtained an abortion.”

The text of the ultrasound bill is available here.
The text of the wrongful birth/wrongful life bill is available here.

STATEMENT BY THE NATIONAL RIGHT TO LIFE COMMITTEE
ON ABORTION “DEAL” ON HEALTH CARE LEGISLATION

WASHINGTON — (Sunday, March 21, 2010, 6 PM EDT) –  In response to today’s announcement regarding an agreement between Rep. Bart Stupak (D-Mi.) and President Obama on the pending health care bill (H.R. 3590), the following statement was issued by the National Right to Life Committee (NRLC), the federation of right-to-life organizations in the 50 states:

The National Right to Life Committee (NRLC) remains strongly opposed to the Senate-passed health bill (H.R. 3590).  A lawmaker who votes for this bill is voting to require federal agencies to subsidize and administer health plans that will pay for elective abortion, and voting to undermine longstanding pro-life policies in other ways as well.  Pro-life citizens nationwide know that this is a pro-abortion bill.  Pro-life citizens know, and they will be reminded again and again, which lawmakers deserve their gratitude for voting against this pro-abortion legislation.

The executive order promised by President Obama was issued for political effect.  It changes nothing.  It does not correct any of the serious pro-abortion provisions in the bill.  The president cannot amend a bill by issuing an order, and the federal courts will enforce what the law says.

To elaborate:  The order does not truly correct any of the seven objectionable pro-abortion provisions described in NRLC’s March 19 letter to the House of Representatives, which is posted here: www.nrlc.org/AHC/NRLCToHouseOnHealthBill.pdf.

Regarding Community Health Centers (CHCs), NRLC has documented the problem created by H.R. 3590 here: www.nrlc.org/AHC/NRLCMemoCommHealth.html.

Prof. Robert Destro, a professor of law and former dean of the Columbus School of Law at the Catholic University of America, and an expert on abortion-related litigation, has sent lawmakers a letter explaining why the bill opens the door to direct federal funding of abortion in Community Health Centers: www.nrlc.org/ahc/DestroLetterToStupakOnCommHealthCenters.pdf.

Prof. Destro clearly explains why it is the statutory language that will govern.

Regarding the new program to provide tax credits to purchase private insurance, the executive order merely tinkers with the formalities of a bookkeeping scheme under which federal subsidies will pay for plans that cover elective abortion — a break from the longstanding principles of the Hyde Amendment.

The order does nothing at all to mitigate the other abortion-related problems described in the NRLC letter, dealing with bill provisions that create dangerous regulatory mandate authorities, revise Indian health programs, and create pools of directly appropriated funds that are not covered by existing restrictions on funding of abortion.  Nor can the order correct the omission from the pending legislation of the necessary conscience-protection language that had been included in House-passed health care legislation last November (the “Weldon language”).

For additional information regarding the abortion-related components of the legislation, and NRLC’s assessment of the gravity of these issues, please refer to the March 19 letter linked above, and other materials posted on the NRLC website at www.nrlc.org/AHC/Index.html.