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…

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.

WASHINGTON — The National Right to Life Committee (NRLC), the federation of right-to-life organizations in all 50 states, issued the following statement regarding President Obama’s nomination of Elena Kagan to fill the seat on the U.S. Supreme Court that is being vacated by Justice John Paul Stevens. This statement may be attributed to NRLC Legislative Director Douglas Johnson.

On April 21, 2010, President Obama used thinly veiled code language to communicate his clear intent to choose a nominee who would be hostile to legislative attempts to protect unborn humans.  The President stated that he wanted someone “who is going to be interpreting our Constitution in a way that takes into account . . . women’s rights,” and that this was going to be “very important” to him as he viewed our “core Constitution” as protecting the “bodily integrity” of women.

In light of the President’s stated intent, senators have an obligation to probe whether Elena Kagan will tolerate limits on abortion, enacted through normal democratic channels, or will seek to impose extreme pro-abortion views by judicial decree.  Ms. Kagan herself argued forcefully in 1995, in a lengthy book review published in the University of Chicago Law Review, that such inquiries by senators are a legitimate and necessary part of the confirmation process.

In the most recent Supreme Court ruling dealing with abortion and the rights of unborn children, Gonzales v. Carhart, on April 18, 2007, a five-justice majority upheld the federal Partial-Birth Abortion Ban Act.  Yet on that occasion, four justices in dissent — including Justice Stevens — argued for a constitutional doctrine that would have invalidated the ban on partial-birth abortions and also, by implication, condemned virtually any other law or government policy intended to discourage abortion.   If the dissenters’ position became the position of the majority of the Supreme Court, various types of laws that have been deemed permissible under Roe v. Wade could be invalidated by judicial decree, perhaps including the Hyde Amendment (restricting government funding of abortion) and parental notification laws.  It is appropriate and necessary for senators to inquire into whether Ms. Kagan would embrace the extreme, results-oriented doctrines enunciated by the dissenting justices in that case.

(Since the Gonzales case was decided, dissenting Justice David Souter has been replaced by Justice Sonia Sotomayor.  Most analysts believe that Sotomayor would be very likely to join the pro-abortion bloc when such issues are revisited in the future.)

There are troubling indications that Ms. Kagan generally favors an activist, results-oriented approach to constitutional law.  For example, in her 1995 law journal article, she wrote, “The bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the Court’s decisions . . . If that is too results oriented … so be it. . .”  She also wrote that “it should be no surprise by now that many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.”

Regarding Ms. Kagan’s specific views on the Court’s past abortion-related rulings, there is little on the public record.  But Ms. Kagan may have betrayed a possible personal animus towards the pro-life movement in a 1980 essay lamenting Republican gains in the 1980 election, in which she referred disparagingly to “victories of these anonymous but Moral Majority-backed [candidates] . . . these avengers of ‘innocent life’ and the B-1 Bomber . . .”   Was Ms. Kagan so dismissive of the belief that unborn children are members of the human family that she felt it necessary to put the term “innocent life” in quote marks, or does she have another explanation?  Would she be able to set aside any animus she has towards those who fight to protect innocent human life, when reviewing laws duly enacted for that purpose?