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MEMORANDUM TO: Interested
Parties
FROM: Douglas Johnson, NRLC
Legislative Director
Susan T. Muskett, J.D.,
NRLC Senior Legislative Counsel
202-626-8820,
legfederal@aol.com
SUBJECT: Senate-passed health
bill (H.R. 3590) opens door to direct federal funding of
abortion without restriction
in 1,250 Community Health Centers
DATE: Updated on March 18, 2010
The health bill passed by the U.S.
Senate on December 24, 2009 (H.R. 3590) contained
multiple, far-reaching pro-abortion provisions. These
have been described in a number of documents issued by
the National Right to Life Committee (NRLC), including a
letter sent to members of the U.S. House of
Representatives on January 14, 2010, which is posted
here:
http://www.nrlc.org/AHC/HouseLetteronAbortionProvisions.html
This memorandum provides more detailed
information on just one of the pro-abortion provisions
contained in H.R. 3590: The language that will allow
direct federal funding of abortion, without restriction,
in about 1,250 Community Health Centers.
The provision in question was added to
H.R. 3590 near the end of the Senate’s amendment
process, as part of a 383-page Manager’s Amendment
unveiled by Senator Reid on December 19. Senator Reid
immediately filed a cloture petition on the Manager’s
Amendment, preventing consideration of any revisions to
it, and severely limiting opportunities for analysis and
debate. The Manager’s Amendment was adopted on December
22, and H.R. 3590 passed the Senate on December 24.
Buried deep in the Manager’s Amendment
was new language making a direct appropriation of funds
for Community Health Centers (CHCs) (which are also
called Federally Qualified Health Centers, or FQHCs),
totaling $7 billion ($7,000,000,000) over five years.
(See Sec. 10503 on page 2355 of H.R. 3590.) Because this
is a direct appropriation in the health care bill
itself, these funds will not flow through the annual
appropriations bill for the Department of Health and
Human Services. Therefore, these funds would not be
covered by the Hyde Amendment.
(The Hyde Amendment is a limitation
provision that has been attached to the annual HHS
appropriations bill in past years; this provision, so
long as it is renewed annually, prevents the use of
funds appropriated through that bill to pay for abortion
or for plans that cover abortion, except to save the
life of the mother, or in cases of rape and incest.)
There is no other language in H.R.
3590 that would prevent the use of the new funds to pay
for abortions performed at Community Health Centers.
Section 1303 of H.R. 3590 contains certain
abortion-related language that is associated with
Senator Ben Nelson (D-Ne.), language that was also added
by the Reid Manager’s Amendment. This “Nelson language”
applies only to a proposed program of tax credits and
cost sharing for health insurance for low-income
individuals. The Nelson language has no bearing at all
on the Community Health Centers provision, Section
10503, which is the subject of this memorandum. (NRLC
believes that the Nelson language would result in an
unacceptable abortion policy with respect to the
programs to which it pertains. This subject is outside
the scope of this memorandum, but is explained in other
NRLC documents, including the January 14, 2010 letter
referenced above.)
There is no restriction in the current
laws authorizing CHCs that prevents these centers from
performing abortions. [See 42 U.S.C. 254b and Section
330 of the Public Health Services Act.] Under these
laws, CHCs can only use these so-called “Section 330
funds” for purposes within the scope of their grants,
but one can assume that grant applications that included
(for example) “reproductive services” would not be
deemed objectionable under the Obama Administration, and
abortions could be subsumed under various other
classifications as well. The authorizing legislation [42
U.S.C. 254b] specifically states that the Community
Health Center funding is to be used to provide “required
primary health services” which the statute defines to
include “health services related to . . . obstetrics, or
gynecology.” Abortion funding would fall within this
authorization, absent a statutory prohibition on the use
of this funding for that purpose.
However, until now, these
centers have been largely dependent on federal funds
that flow through the annual HHS appropriations bill and
that therefore have been governed by the Hyde Amendment.
As noted above, the $7 billion appropriated for CHCs by
H.R. 3590 would not flow through that pipeline and
therefore would not be restricted with respect to
abortion.
This is not a merely hypothetical
concern. There is already an organized effort underway
by the Reproductive Health Access Project to encourage
Community Health Centers to perform abortions, “as an
integrated part of primary health care.” For evidence,
see “Frequently Asked Questions About Integrating
Abortion into Community Health Centers, Potential
Obstacles and Possible Solutions” at
http://www.reproductiveaccess.org/getting_started/faq.htm
Indeed, the Reproductive Health Access
Project and the Abortion Access Project have produced an
“administrative billing guide” to help CHCs integrate
abortion into their practices within the confines of
existing federal and state restrictions. See
“Administrative Billing Guide for Medical Abortion at
Facilities that Receive Title X, Section 330, and other
Federal Funding,” at
http://www.nrlc.org/AHC/ReproductiveHealthAccessProjectAdminBillingGuide.pdf
On February 22, 2010, President Obama
released a list of changes that he recommends to H.R.
3590. Among these, he proposed to increase the direct
funding for CHCs from the Senate-approved $7 billion to
$11 billion. He did not propose adding any restriction
on the use of the funds for abortion, even though the
fact that H.R. 3590 would allow the use of the CHC funds
to pay for abortion had been widely publicized by NRLC
during January and February.
The problem described in this
memorandum does not exist with respect to the health
bill passed by the House of Representatives on November
7, 2009 (H.R. 3962). The House-passed bill authorizes
(but does not appropriate) $12 billion for CHCs (see
Section 2101), but this provision – like the rest of
H.R. 3962 – would be governed by the Stupak-Pitts
Amendment (Section 265), which prevents any funds
authorized or appropriated in the bill from being used
for abortion (except to save the life of the mother, or
in cases of rape or incest).
NOTE: The memo above was originally
posted on February 12, 2010. The following
related material was submitted on March 16,
2010, to the website PoliticsDaily.com, in
response to
an essay on the subject posted by David
Gibson.
Mr. Gibson asserts that Community Health
Centers (CHCs) "have never provided
abortions and are not about to start, nor
can they do so under federal law." While he
does not here provide any basis for these
assertions, I assume that he is relying
unskeptically on a recent press release from
the National Association of Community Health
Centers (NACHC) that asserted that CHCs "do
not plan to, nor are they seeking to, become
providers of abortion."
But the NACHC has no authority to govern
what services are provided by any of the
approximately 1,250 CHCs that are funded by
the federal government, nor should it be
assumed that any CHC that decided to provide
abortions would feel obligated to notify the
association. It is telling that Mr. Gibson
studiously avoids mentioning the national
campaign that is being conducted by the
Reproductive Health Access Project (RHAP)
precisely to encourage CHCs to expand into
providing abortions, even though this
campaign has been prominently mentioned in
NRLC and USCCB documents on this subject.
The RHAP's detailed "frequently asked
questions about integrating abortion into
Community Health Centers" certainly cast
doubt on the blanket statements that none of
the CHCs are currently performing or
planning to perofrm abortions.
For instance, one of the RHAP's “frequently
asked questions” focuses on CHCs that don’t
want to become publicly known as an
“abortion service” if they introduce
abortion services, yet want to get the word
out to their patients without advertising
it. To overcome this obstacle, RHAP
suggests that the practitioner mention the
availability of abortion services to
patients during examinations, such as during
an annual exam.
Another FAQ deals with CHC administrators
who are supportive of adding abortion
services, but think that their local board
will not allow it. To overcome this
obstacle, RHAP recommends scrutinizing the
authority of the local board in this matter,
and whether it is the Board’s “customary
practice” to determine the scope of medical
care. RHAP asks, “did they go to the board
when colposcopy services were added?”
The truth is, neither Mr. Gibson, nor the
NACHC, know how many CHCs are currently
performing abortions or prescribing the
RU486 abortion pill. Up until now CHCs
have, in the aggregate, received roughly
two-thirds of their funds from federal
appropriations that have flowed through the
Hyde Amendment filter, but the rest of the
funding comes from other sources. The RHAP
and the Abortion Access Project has produced
an entire billing manual to instruct
federally funded CHCs how to provide
abortions and pay for them with these
non-federal funds. Again, Mr. Gibson
carefully avoids mentioning this manual,
although it has been discussed in NRLC
documents on this issue since January. You
can view it here:
http://www.nrlc.org/AHC/ReproductiveHealthAccessProjectAdminBillingGuide.pdf
Everything I have said so far applies to the
situation up until now, in which the federal
funds received by CHCs flowed mainly through
the HHS appropriations bill and therefore
are filtered by the Hyde Amendment. But the
current dispute is about the $7 billion
directly appropriated by the Senate health
care bill (H.R. 3590) which would not flow
through the regular appropriations bill to
which the Hyde Amendment has annually been
affixed. In an effort to pass the bill,
Secretary Sebelius is asserting that her
agency will apply existing regulations on
appropriated funds, barring funding of
abortions, to the new funds in the bill.
But this is a circular argument, because
regulations are enforceable only when they
rest on some statutory authority -- which
is, in this case, the Hyde Amendment. Under
past administrations, attempts to employ
federal administrative authority to extend
restrictions on abortion beyond the explicit
statutory prohibitions enacted by Congress
usually have not fared well in the federal
courts (and efforts by state legislatures or
other non-federal actors have fared even
worse), except in the special area of
foreign aid. There is no reason to believe
that the pro-abortion Obama Administration
would have greater success in applying
anti-abortion restrictions to domestic
program funds where Congress has failed to
do so. Thus, the new HHS memorandum should
be recognized as part of an effort to
whitewash the abortion policy problems with
the Senate health bill, not as a predictor
of what will happen with the CHCs if the
bill is enacted.
Mr. Gibson goes even further afield in
asserting, "None of the money can go to
Planned Parenthood or any organization that
provides abortions." This is, frankly,
nonsense, even under existing law, and still
more so under the pending bill. The Planned
Parenthood Federation of America (PPFA) is
the nation's largest abortion provider,
performing around 300,000 abortions a
year. Yet, PPFA affiliates -- including
the affiliates that run abortion clinics --
also receive many millions of dollars
annually in funds that flow through the
annual appropriations bill for the
Department of Health and Human Services (DHHS),
under the Title X family planning program,
Medicaid, and other programs. While the
Hyde Amendment has prevented the previously
appropriated funds from being spent directly
on abortions, the fact that a given PPFA
affiliate performs abortions certainly has
not disqualified it from being a major
receipient of Hyde-controlled DHHS funds for
other purposes, regrettably. The assertions
by Mr. Gibson and his sources that the mere
receipt of Hyde-controlled federal funds
altogether disqualifies an organization from
performing abortions is so obviously wrong
that it should make the discerning reader
skeptical of his entire thesis.
Douglas Johnson
Legislative Director
National Right to Life Committee
Washington, D.C.
202-626-8820
To go to the Abortion in Health Care
index, click here.
To go to the NRLC Home page, click
here.
To go to the NRLC Legislative Action Center, click
here.
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