Last updated on: 9/9/2010 3:30:22 PM PST
Can federal funds be used for abortion services?
General Reference (not clearly pro or con)
The Congressional Research Service stated the following in its July 23, 2010 memorandum "High Risk Pools under PPACA and the Coverage of Elective Abortion Services," available at www.nrlc.org:
"Section 1101 of PPACA [Patient Protection and Affordable Care Act] provides for the establishment of a temporary high risk insurance pool program for specified individuals with preexisting conditions…
Abortion restrictions… would not appear to apply specifically to funds made available for high risk pools...
Executive Order 13535 (90 KB) does not specifically address high risk pools and the funds provided under section 1101 of PPACA...
The 'Hyde Amendment' refers to an amendment first offered by Rep. Henry J. Hyde in 1976 to the Departments of Labor and Health, Education, and Welfare, Appropriation Act, 1977. The amendment restricted the use of appropriated funds to pay for abortions provided through the Medicaid program. Since 1976, similar provisions have been included annually in the appropriations measures for the Departments of Labor, HHS, and Education, and are now commonly referred to as the 'Hyde Amendment.’
An exception to the general prohibition on using appropriated funds for abortions is provided…
(1) if the pregnancy is the result of an act of rape or incest; or
(2) in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless and abortion is preformed.
Because the Hyde Amendment restricts only the funds provided under the appropriations measure for the Departments of Labor, HHS, and Education, it would not seem to apply to the funds provided for the high risk pools...
It may be possible for the Secretary of HHS to provide that a high risk pool may not use federal funds to pay claims or subsidize premiums related to the coverage of elective abortions."
July 23, 2010 - Congressional Research Service (CRS)
High Risk Pools Under PPACA and the Coverage of Elective Abortion Services (227KB)
Orrin G. Hatch, JD, US Representative (R-UT), stated the following in his Mar. 17, 2010 article "Don't Be Fooled Again - Senate Health Bill Includes Taxpayer Funding of Abortion," available at www.foxnews.com:
"For almost 35 years, the law of the land has been an explicit prohibition against federal taxpayer dollars being used to pay for elective abortions, known as the Hyde amendment...
[T]he Senate bill allows elective abortions to be offered through the newly-created individual state health insurance exchanges and multi-state health plans administered by the Office of Personnel Management (OPM), and through federally-subsidized plans in already-existing community health centers.
Anyone who doesn’t earn enough money would qualify for a federal subsidy to help pay for their health plan in the state exchanges, including plans offering elective abortion coverage...
[U]nder this proposal, community health centers would receive a dedicated stream of money outside the annual congressional process to fund the government which is where the Hyde prohibition is maintained. So that means that for the first time federal money could be used to fund abortion at a community health center.
Those are the facts, and anyone who thinks the Senate abortion language is strong enough should think again."
Mar. 17, 2010 - Orrin G. Hatch, JD
The National Right to Life Committee (NRLC), a "pro-life" lobbying and educational organization, stated the following in its July 13, 2010 press release "HHS Approves Pennsylvania Plan to Use Federal Funds to Subsidize Coverage of Nearly All Abortions in New 'High-Risk Pool' Program," available at www.nrlc.org:
"An earlier version of the health care legislation, passed by the House of Representatives in November 2009, contained a provision (the Stupak-Pitts Amendment) that would have prevented federal funds from subsidizing abortion or insurance coverage of abortion in any of the programs created by the bill, including the high-risk pool program. But President Obama opposed that pro-life provision, and it was not included in the bill later approved by both houses and signed into law. An executive order signed by the President on March 24, 2010 did not contain effective barriers to federal funding of abortion, and did not even mention the high-risk pool program."
July 13, 2010 - National Right to Life Committee (NRLC)
Americans United for Life (AUL), self-proclaimed as "America's oldest 'pro-life' organization," stated the following in its article "States Opt Out," available at www.aul.org (accessed Sep. 8, 2010):
"The new health care reform law requires individual States to operate and maintain 'health insurance exchanges.' Health insurance plans offering abortion coverage are allowed to participate in a state’s exchange and to receive federal subsidies unless the State legislature affirmatively opts-out of offering these plans... If one chooses a plan that covers abortion, his or her tax credit cannot be used to directly pay for abortions; however, the tax credit subsidizes the insurance plan which covers abortions.
Contrary to some perceptions, President Obama’s March 24, 2010 Executive Order does not make the new health care reform law conform to the longstanding principle of the Hyde Amendment – that the federal government will not pay for abortions or for insurance plans that cover abortions.
While the text of the Executive Order addresses the health insurance exchanges, it utterly fails to apply the language of the Hyde Amendment to them. Section 2 of the Order provides guidelines for 'strict compliance' with the provisions in the new law that address how federal subsidies are handled in plans that cover abortions in the exchanges. However, these guidelines do nothing to prevent federal subsidies from going to plans that cover abortions..."
Sep. 8, 2010 - Americans United for Life (AUL)
The House Republican Conference stated the following in its July 20, 2010 article "ObamaCare's High Risk Pools and Abortion Coverage," available at www.gop.gov:
"[T]he administration claims that... HHS [US Department of Health and Human Services] contracts specify that high risk pools must 'follow all federal laws and guidance.' Since ObamaCare did not include a prohibition on funding for abortion and abortion coverage, no federal law prohibits abortion in high risk pools, and, to date, the Obama administration has not issued ANY guidance on abortion coverage in high risk pools.
President Obama’s Executive Order also does not cover high risk pools. It only specifies that there will be no abortion funding in community health centers and outlines an accounting gimmick to allow abortion coverage subsidies in the state exchanges to be established by 2014. As a result, several states have already passed laws outlawing taxpayer funding of abortions in the exchanges."
July 20, 2010 - House Republican Conference
Anthony Picarello, JD, General Counsel for the US Conference of Catholic Bishops, stated the following in a Mar. 25, 2010 article "Legal Analysis of the Provisions of the Patient Protection and Affordable Care Act and Corresponding Executive Order Regarding Abortion Funding and Conscience Protection," available at www.usccb.org:
"The purpose of this legal memorandum is to identify the problems of the recently-passed Patient Protection and Affordable Care Act, in relation to abortion funding and conscience protection, and then to assess whether (and if so, how) the corresponding Executive Order of March 24, 2010, corrects those problems. Although we wish it were otherwise, we must conclude that PPACA poses serious problems in these two areas, and that the Executive Order does not correct those problems...
[T]he Act limits the direct use of a federal tax credit specifically to fund abortion coverage in qualified health plans. It attempts to segregate funds within health plans in order to keep federal funds distinct from other funds used directly for abortions. But under Section 1303, the tax credits are still used to pay overall premiums for health plans covering elective abortions. This violates the principle reflected in the second part of the Hyde Amendment, which forbids use of federal funds for any part of a health benefits package that covers elective abortions...
In sum, the Executive Order cannot and does not fix the statutory problems of direct funding of abortion at CHCs [community health centers], and of funding insurance plans that cover abortions."
Mar. 25, 2010 - Anthony Picarello, JD
Timothy S. Jost, JD, Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law, stated the following in his Mar. 11, 2010 article "Abortion Debate Must Not Stop Healthcare Reform," published in The Hill:
"Both the House and Senate bills ended up adopting amendments offered by abortion opponents. The House adopted the amendment proposed by Rep. Bart Stupak (D-Mich.), the Senate an amendment proposed by Sen. Ben Nelson (D-Neb.).
Many assertions have been made in recent days about these abortion provisions. House Minority Leader John Boehner (R-Ohio), for example, stated at the Feb. 25 healthcare summit that the 'bill we have before us ... for the first time in 30 years allows for the taxpayer funding of abortions.' This is simply not true...
The Senate bill, like the House bill, prohibits the use of federal premium subsidies to pay for abortions that are not covered by Medicaid (that is, cases of rape and incest or of physical threat to the life of the mother); provides that the government cannot require health plans to cover abortion; prohibits health plans and federal agencies or state and local governments receiving federal funds from discriminating against providers because of their unwillingness to provide for, pay for, provide coverage for or refer for abortion; and leaves in place all state laws regulating abortion and federal law regarding conscience protection or willingness to provide abortion. Neither bill affects abortion coverage through employment-based plans...
The Senate bill also prohibits the use of federal funds to purchase abortion coverage; plans that cover abortions must collect a separate privately-paid premium for abortion coverage that will be kept in a strictly regulated separate account."
Mar. 11, 2010 - Timothy Stoltzfus Jost, JD
Barack H. Obama, JD, 44th President of the United Stated stated the following in his Mar. 24, 2010 executive order 13535 "Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act," available at www.whitehouse.gov:
"Following the recent enactment of the Patient Protection and Affordable Care Act (the ‘Act’), it is necessary to establish an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment...
The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014. The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered)...
The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program. Existing law prohibits these centers from using Federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered)."
Mar. 24, 2010 - Barack Obama, JD
Brooks Jackson, Director of FactCheck.org, stated the following in a July 22, 2010 article, "Taxpayer-Funded Abortions in High Risk Pools," available at www.factcheck.org:
"The claim that the new federal health care law will use taxpayer funds to pay for abortions through 'high-risk pools' originated when the National Right to Life Committee issued a press release July 13. It said that Washington had approved a new insurance program that 'will cover any abortion that is legal in Pennsylvania.' Abortion foes also raised alarms about similar federally subsidized insurance pools being put together in New Mexico and Maryland...
State and federal officials have since scrambled to clarify their intentions. Pennsylvania officials issued a statement on July 15 saying that for any abortions performed because of reasons other than rape, incest or a threat to the mother’s life, women 'will have to pay for them out their own pocket.' And New Mexico backed down just as quickly, issuing a July 15 statement saying 'elective abortion is not and has never been intended to be a benefit.'...
[W]hatever Pennsylvania officials intended, the stated federal policy is now clear: No abortions will be covered by the temporary risk pools except for those in cases of rape or incest, or to save the life of the mother."
July 22, 2010 - Brooks Jackson
The National Organization for Women (NOW) stated the following in a Spring 2010 article "Women Pay Steep Price for Benefits of Health Care Reform," available at www.now.org:
"NOW and its allies successfully beat back the infamous Stupak-Pitts Amendment, which was crafted by the Catholic Bishops and aimed at eliminating coverage for all abortion care. While the measure passed the House, the Senate tabled it - but in the end a watered-down version was added to the Senate bill [Patient Protection and Affordable Care Act] at the insistence of Sen. Ben Nelson, and that version became law...
[T]his provision achieves the goal of Stupak-Pitts (albeit over a longer time frame): elimination of all private as well as public coverage of abortion care. One in three women will have an abortion in their lifetime -- but unless this provision is repealed, millions of women will lose the abortion coverage they currently have, as insurance companies will eventually conclude it's not worth the law's regulatory hassle to cover this common and necessary medical procedure."
Spring 2010 - National Organization for Women (NOW)
Jenny Backus, Spokeswoman for the US Department of Health and Human Services (HHS), stated the following in a July 14, 2010 press release "Statement of HHS Spokeswoman Jenny Bakus on the Pre-Existing Condition Insurance Plan Policy," available at www.hhs.gov:
"As is the case with FEHB [Federal Employee Health Benefit] plans currently, and with the Affordable Care Act and the President's related Executive Order more generally, in Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) except in the cases of rape or incest, or where the life of the woman would be endangered.
Our policy is the same for both state and federally-run PCIP programs. We will reiterate this policy in guidance to those running the Pre-existing Condition Insurance Plan at both the state and federal levels. The contracts to operate the Pre-existing Condition Insurance Plan include a requirement to follow all federal laws and guidance."
July 14, 2010 - Jenny Backus