Health care is the next-to-last thing I want to write about. The last thing is abortion, so this column is a banquet of tortures. There's broad misunderstanding about whether the new health care reform law allows funding for abortions and whether President Obama's executive order is of any real (judicially enforceable) value. The answer to the latter is in little dispute. It is "no." An executive order cannot override a statute. As to the funding issue, it's intentionally complicated -- and shouldn't be.
Defenders argue that: (1) nowhere does the bill say funds will go toward abortion; (2) the Hyde Amendment, which prohibits federal funding for abortion, applies. Both assertions are true -- up to a point. It isn't what the bill says; it's what it doesn't say.
No one should apologize for being confused, by the way. If not for the patient tutoring of dozens of brilliant lawyers, Capitol Hill staffers, medical experts and others, I would be in a fetal curl. To the first argument: Of course the bill doesn't explicitly state that it appropriates abortion funding. In fact, it takes pains to use terminology that seems to explicitly forbid it. But other areas are swampier. And, indeed, funds could be used to pay for abortion under circumstances that predictably will evolve.
History and precedent tell us this much.
For one thing, the Hyde Amendment is a rider that must be lobbied and attached each year to the annual Labor/Health and Human Services appropriations bill. Under its terms, the amendment applies only to those funds.
The health care reform measure does an end run around Hyde by directly appropriating billions into a new CHC fund. Because the Obama administration's "fix-it" bill did not include the abortion-ban language proposed by Rep. Bart Stupak, those billions appropriated to CHCs simply are not covered by Hyde.
Now, the president's executive order purports to address this gap by extending the Hyde Amendment to these dollars as well. The problem is that he can't actually do this without an act of Congress.
As Dorinda Bordlee, an attorney with the Bioethics Defense Fund, wrote: "If a president could do that, there would be no need to have a majority of Congress pass the Hyde Amendment each and every year to prevent abortion funding using Medicaid dollars for low-income government health care. Instead, we could have simply prevailed on each president to issue an executive order saying agencies can't use Medicaid money for abortion. Congress controls the purse strings, not the president. That's Civics 101." It is telling that the nation's largest abortion provider -- Planned Parenthood -- is claiming "victory" because "we were able to keep the Stupak abortion ban out of the final legislation and President Obama did not include the Stupak language in his executive order." Several supporters of the bill have argued that this debate is irrelevant because abortions aren't performed at community health centers. But this doesn't mean that CHCs wouldn't like to offer abortion. Under the new law, they can.
Here's why. By statute, CHCs are required to provide all "required primary health care services," defined to include "health services related to ... obstetrics or gynecology that are furnished by physicians." Based on federal precedent, a statute requiring provision of "health" services must be interpreted to include abortion unless it is explicitly excluded. Voila.
One may believe that poor women should have affordable access to abortion. This is a reasonable position and it likely will be the outcome as a result of this bill. But it is not what Americans have been led to believe is true, nor is it what most want. A 2009 Quinnipiac University poll found that
72 percent of Americans oppose public funding for abortion.
Prediction: Abortions will be performed at CHCs. There was always a will by this administration, and now there's a way.
Write Parker at firstname.lastname@example.org.
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