Health care reform and executive order did not prohibit federal funding for abortion

William Saunders A Response to Chris Korzen of Catholics United In a Guest Voices blog post for On Faith at … Continued

William Saunders

A Response to Chris Korzen of Catholics United

In a Guest Voices blog post for On Faith at, Chris Korzen of Catholics United writes that:

“Self-proclaimed pro-life groups . . . falsely claim that the Patient Protection and Affordable Care Act provides federal funding for elective abortions, even though the Catholic Health Association, a bevy of health-care policy experts, and independent analysts have repeatedly debunked this abortion-funding myth.”

However, the most recent evidence that the health care law does not prohibit federal funding for abortions may be found in a July 23, 2010 memorandum from the Congressional Research Service.

In a July 28, 2010 letter to the Secretary of Health & Human Services, 13 United States Senators summarized CRS’ findings, writing:

“According to CRS, neither the restrictions in PPACA, Presidential Executive Order 13535 nor the recently released HHS contract materials actually prohibit a state high risk pool from covering elective abortions.”

In our analysis of the CRS memorandum, we agreed, stating:

“The CRS reached the same conclusion that AUL reached both during and after the health care reform debate: nothing in the PPACA, the Executive Order, or other law prohibits the use of federal tax dollars for abortions through the high risk pools.”
Importantly, proabortion groups agree with our analysis as well.

The Center for Reproductive Rights wrote in a July 19, 2010 statement:

“Contrary to assertions by the White House, there’s no current legal basis for the policy. The executive order issued by the President on abortion only addressed rules for segregating funds for abortion coverage in the healthcare exchanges and limits on community health centers. The Federal Employee Health Benefit Plan policy similarly furnishes no legal basis for exclusions in the new high risk pools.”

Korzen also mischaracterizes the statement issued on July 15, 2010 by the U.S. Conference of Catholic Bishops:

[L]ast week the bishops issued a statement commending the Obama administration for upholding the ban on federal funding of abortion following false accusations – made by the National Right to Life Committee and the Family Research Council – that a high risk insurance pool in Pennsylvania contained $160 million in federal funding for abortion.”

However, this characterization is a far cry from Cardinal Daniel DiNardo’s actual statement (emphasis mine):

“Last night, however, HHS reacted to public criticisms by announcing that it will act to exclude abortion from this federally funded program, in accord with the assurances that Secretary Sebelius and President Obama have repeatedly made that PPACA will not be used to promote abortion. We welcome this new policy, while continuing to be gravely concerned that it was not issued until after some states had announced that pro-abortion health plans were approved and had begun to enroll patients. This situation illustrates once again the need for Congress to enact legislation clearly stating once and for all that funds appropriated by PPACA will not pay for abortions or for insurance coverage that includes abortion. Such legislation would mirror the Hyde amendment and similar provisions which prevent such abortion funding in all other federal health programs.”

Cardinal DiNardo’s statement is in line with previous legal analysis by AUL:

“In order to win the votes of a handful of pro-life Democrats in the House, President Obama signed an Executive Order (EO) that purported to apply the Hyde Amendment (which restricts the use of certain federal dollars, such as Medicaid funds, for abortions) to the new law. In reality, the EO only addressed two provisions in the law: the new health insurance exchanges and additional funding for Community Health Centers (as a former AUL memo explains, the EO is insufficient even on these points). The EO utterly failed, however, to comprehensively apply a prohibition on the use of federal funds for abortions to the law.”

Today, in response to pressure from pro-life groups, HHS issued regulations on the high risk pools ensuring that the funds will not be used for elective abortions. While this action will prevent these particular federal funds from being used for abortions, Congress should remedy the mistake they made in March when they passed the PPACA without a comprehensive prohibition on federal funding for abortion. Without such a prohibition, abortion funding is going to continue to be an issue through other provisions in the law. In fact, Nancy-Ann DeParle wrote on the White House blog that:

“The [high risk pool] program’s restriction on abortion coverage is not a precedent for other programs or policies [covered by the health care reform law] given the unique, temporary nature of the program and the population it serves.”

Further, this action by HHS is additional evidence that the health care reform law and the president’s executive order did not comprehensively prohibit federal funding for abortion.

William Saunders is Americans United for Life’s Vice President of Legal Affairs

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