AUL Action Legal Memo: A Pro-Life Look at the Health Care Reform Bills Currently in Congress

Revised August 27, 2009

Congress is currently considering three different health care reform bills:

House Bill

H.R. 3200, the American Affordable Health Choices Act, referred to as the House “Tri Committee bill” (House Energy and Commerce, Ways and Means, and Education and Labor). The Ways and Means Committee reported out the bill on July 17, and similarly on July 17, the House Education and Labor Committee voted out the bill by a vote of 26-22. Lastly, the Energy and Commerce Committee reported out the bill on July 31, by a vote of 31-28.

Senate HELP Committee Bill

The Senate HELP (Health, Education, Labor and Pensions) Committee has its own health care reform bill, the Affordable Health Choices Act, sponsored by Sen. Edward Kennedy (D-Mass.). The Senate HELP Committee reported the bill out of Committee on July 15 by a vote along party lines of 13-10.

Senate Finance Committee Bill

Sens. Baucus (D-Mont.), Grassley (R-Iowa), Schumer (D-N.Y.), and Conrad (D-N.D.) are the main architects of the Senate Finance bill. The Finance Committee has not yet released its bill publicly, so the details of the bill remain unknown.

Mandatory Coverage of Abortion

In addition to the explicit language in the House Bill (H.R. 3200 or Tri-Com Bill), the American Affordable Health Choices Act, which includes abortion as a mandatory minimum benefit in the newly-created public health care plan and requires taxpayer funding of abortion (see Capps amendment to H.R. 3200), mandatory abortion coverage in H.R. 3200 and the Senate HELP Bill is confirmed confirmed by prior court interpretation and by the rejection of key pro-life amendments in committee in recent days. Abortion mandates must therefore be explicitly excluded.

Courts Interpret “Mandatory Categories” of Care to Include Abortion

In Planned Parenthood v. Engler, 73 F.3d 634 (6th Cir. 1996), a U.S. Court of Appeals held that abortion “fall[s] within several of Medicaid’s mandatory categories of care” and that a state law that restricted funding for abortion to those necessary to save the mother’s life conflicts with the “mandate” of Medicaid. Id. at 637. The court found that “under Medicaid, certain categories of medical care are mandatory and therefore must be provided by participating states when a physician certifies that the care is medically necessary to the patient…” The court concluded that “the mandatory categories of care” included “inpatient hospital services, outpatient hospital services, other laboratory and X-ray services, “nursing facility services” “early and periodic screening and diagnosis for individuals under the age of 21,” “family planning services” and “physician services furnished by a physician.” Though “abortion” is not explicitly named in any of those services, the court broadly concluded, “abortion fits within many of the mandatory care categories, including ‘family planning,’ ‘outpatient services,’ ‘inpatient services,’ and ‘physician services.” See also Hope Medical Clinic v. Edwards, 63 F.3d 418 (5th Cir 1995); Little Rock Family Planning Services v. Dalton, 60 F.3d 497 (8th Cir. 1995), cert. denied, 116 S.Ct. 777 (1996); Hern v. Beye, 57 F.3d 906, 910 (10th Cir. 1995), cert. denied, 116 S.Ct. 569 (1995).

The above referenced judicial interpretation of Medicaid — whereby abortion is included within broad categories of services and “medically necessary” services which include elective abortion — will almost certainly be applied to any federal statute revising Medicaid and involving health care reform.

Bypassing the Hyde Amendment Through Back Door Spending Authority

The Hyde Amendment, a yearly addition to the Labor, Health and Human Services (LHHS) Appropriations bill, prohibits the use of taxpayer money for abortion through the Medicaid program. The Hyde Amendment is not permanent law; it must be introduced and approved each year in order to prohibit taxpayer money from financing abortion.

However, even if the Hyde Amendment were to remain intact legislatively, the funding mechanism employed by Congress to pay for the trillion dollar health care reform effort entirely circumvents the Hyde Amendment, rendering it entirely inapplicable outside of Medicaid.

Instead of following the path that most authorization bills follow, in which the authorizers present completed legislation to the appropriators in order to fund the project, H.R. 3200 self-appropriates by funding its new programs through a Trust Fund created specifically for that purpose. See Sec. 207 (c)(2). Referred to as "back door spending authority", this tactic tosses aside a crucial check in our government’s carefully calibrated checks and balances system through bypassing the appropriations committee in order to obtain funding for its new spending.

Similarly, in this way H.R. 3200 also bypasses the Hyde Amendment because the Hyde Amendment applies only to appropriations made in the LHHS bill. This circumvention opens up the possibility of taxpayer funded abortion in the new health care system.

Abortion Coverage to Be Delegated to Administrative Committee

The Senate bill delegates to a “Medical Advisory Committee” (see Sec. 3103) the role of determining which minimum benefits any private or public health care plan must offer. It is expected that this unelected administrative committee will decide that abortion merits mandatory inclusion in any health care plan offered. Were this to occur, private plans would be forced to offer coverage for abortion, and taxpayers may be forced to subsidize abortions under a possible public health care plan.

The House bill, H.R. 3200, delegates to a similar entity, the Health Benefits Advisory Committee, the task of determining mandatory minimum benefits. The Capps amendment to H.R. 3200, passed by a vote of 30-28, prohibits the Committee from mandating coverage of abortion. However, the Capps amendment mandates abortion coverage itself through the public health care plan option and also requires that all areas of the country contain one private plan that covers abortion.

In addition, H.R. 3200 allows states to cover “family planning services” under Medicaid. (See Sec. 1714). The definition of “family planning” in the bill comes from Sec. 1905(a)(4)(C) of the Social Security Act which defines “family planning” services as those “family planning services and supplies furnished (directly or under arrangements with others) to individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies.” Given the Engler court’s interpretation of family planning to include abortion, this is clearly another means by which abortion will be read into H.R. 3200.

Pro-Life Amendments Rejected, Pro-Abortion Amendment Accepted

Pitts Amendment

On July 30, Rep. Joe Pitts (R-Penn.) and Rep. Bart Stupak (D-Mich.) offered an amendment which would have excluded abortion from the required basic benefits that any government or private plan must offer, but included an exception for cases involving a danger to the mother’s life, rape, or incest. On the initial vote, the amendment passed by a vote of 31-27. However, Chairman Henry Waxman (D-Calif.) voted in favor of this amendment on the initial vote so that a re-vote would be possible. (House rules allow the chair to reconsider an amendment if the chair originally voted in favor.) When the amendment was subject to a re-vote, Chairman Waxman and Rep. Bart Gordon (D-Tenn.) changed their votes to No, defeating the amendment 30-29. In addition, Rep. Zack Space (D-Ohio), who was not present for the initial vote, voted No on the amendment for the re-vote.

In place of the Pitts/Stupak amendment, the Committee approved an amendment offered by Rep. Lois Capps (D-Calif.) by a vote of 30-28. The Capps amendment permits the Secretary of the Health and Human Services Department (HHS) to include abortion as a mandatory minimum benefit in the new public health care plan, and requires taxpayer funded abortion through the provision of affordability credits for plans that cover abortion. The current Secretary of HHS, Kathleen Sebelius, is staunchly pro-abortion and would certainly include abortion in the plan, allowing for immediate federal funding of elective abortion coverage. The provision also requires that all areas of the country contain one private plan that covers abortion. The Capps amendment also contains language that prevents preemption of state abortion laws.

Enzi Amendment

On the Senate side, Sen.r Mike Enzi (R-Wyo.) offered several amendments to the HELP bill that would have prevented taxpayer funding of abortion (see amendments (amdt.) 276 and 277) and an amendment which would prevent abortion clinics from being eligible for federally qualified health center grants.(amdt. 275, See Sec 172 of the bill). These amendments failed 12-11, with all the Committee Democrats, except for Sen. Casey (D-Penn.), voting against them.

Mikulski Amendment

Sen. Mikulski (D-Md.) offered an amendment (opposed by Republicans and Sen. Casey) which would require insurers to cover “essential community providers…that serve predominantly low-income, medically under-served individuals.” Sen. Mikulski explained the amendment as providing for any service deemed medically necessary or medically appropriate.” However, as Sen. Hatch and others have noted, Planned Parenthood falls into this category of “community provider” and would therefore be required to be included in health insurance networks under the bill.

Hatch Amendment

In response to Sen. Mikulski’s amendment, Sen. Hatch (R-Utah) offered an amendment that would prevent tax-funded abortions unless the life of the mother is endangered (amdt. 210), or unless the pregnancy is the result of rape or incest (amdt. 227). These amendments would have made the Hyde Amendment permanent, but the amendments failed 12-11. Sen. Bob Casey (D-Pa.) was the only Democrat to vote in favor of the Hatch amendment.

During the debate over the Hatch amendments, Sen. Durbin (D-Ill.) made the claim that the Hyde Amendment was “settled law” (and thus already established, making the Hatch amendment unnecessary). This is incorrect. The Hyde amendment was a yearly “fix” to the Labor and Health and Human Services Appropriations bill rather than permanent law, and moreover, many parts of the health care reform bills before Congress would not be subject to the Hyde amendment fix either way

Coburn Amendment

Sen. Coburn also offered several amendments to the HELP bill. The amendments would have ensured no abortion mandates (amdt. 270), prevented abortion clinics from being eligible for federally qualified health center grants (amdt. 273) and prevented the invalidation of state laws that regulate abortions (amdt. 272). His amendments failed 12-11.

Roberts Amendment

Sen. Pat Roberts (R-Kan.) also offered an amendment which would have prevented the invalidation of state laws regulating abortion (amdt. 204). It likewise failed 12-11.

No Coverage for the Unborn in HR 3200

Unborn children are not covered by health insurance under H.R. 3200. Despite promises that all children (including dependent children up to the age of 26, see Sec. 2709 in the HELP bill) would be covered under some form of health insurance, H.R. 3200 provides Medicaid and CHIP funds only to children “from the time of birth.” See Sec. 205 (d)(1)(A).

Given Congress’s clear intent to ensure that children are not left without medical coverage, AUL Action urges Congress to codify coverage of the unborn in the State Children’s Health Insurance Program (SCHIP).¹ Unfortunately, Congress rejected such language in January 2009.² A child’s health care begins long before birth, and Congress ought to recognize and provide equal treatment for the very real medical and financial needs of the unborn and their mothers through statutorily-guaranteed health care funding.

Protection of Conscience in Health Care Reform Bills

Provider Rights of Conscience

H.R. 3200 currently contains two conscience clauses. Reps. Pitts, Stupak, and Lee Terry (R-Neb.) drafted a conscience clause which the Energy and Commerce Committee passed by voice vote, and Rep. Capps also included a conscience clause in the amendment she successfully offered on July 30.

Both amendments prohibit discrimination against physicians, other health care professionals, hospitals, provider-sponsored organizations, health maintenance organization, and health insurance plans for refusing to provide, refer for, pay for or provide coverage for abortion.

On the Senate side, Sen. Kennedy offered an amendment on July 13 to the HELP bill (amdt. 205) which would ensure that no health care provider or entity is excluded from contracting with an insurance plan participating in “the Gateway” (the HELP bill’s health care exchange framework) on the basis that the provider or entity refuses to perform abortions if performing abortions would be contrary to the religious or moral beliefs of the individual or entity. This amendment was accepted. The scope of the Kennedy amendment is limited however. It does not cover providers who refuse to pay for or refer patients for abortion services. In addition, the amendment provides an exception for “cases of emergency,” which is undefined and can be stretched to fit almost any situation, effectively stripping providers of any protection the amendment may have offered them. Medical providers need true rights of conscience protection and an ability to meaningfully object to performing abortions.

Sen. Coburn offered an amendment (a codification of the Hyde/Weldon conscience protection law) to ensure that health care providers are not forced to participate in abortions or discriminated against because they choose not to do abortions (amdt. 246) and a second that would ensure that Americans have professional ethicists informing any Government-funded medical decisions (amdt. 264). The Coburn amendments were defeated.

AUL Action urges Congress to protect the rights of conscience for all Americans, from providers to patients to religious entities. No one should be compelled to act contrary to his or her conscience in the payment for, provision of, or performance of health care.

Curtailment, Withdrawal, or Denial of Treatment

H.R. 3200, Sec. 1401, establishes a Center for Comparative Effectiveness Research within the Agency for Health Care Research and Quality (AHRQ).

The Senate HELP bill also establishes a comparative effectiveness entity in Sec. 937 called the Center for Health Outcomes Research and Evaluation. The bill states in Sec. 937 (h)(1) that “Center reports and recommendations shall not be construed as mandates for payment, coverage, or treatment.” However, as Sens. Enzi and Coburn have pointed out, nothing in the current bill prevents the results of comparative effectiveness research (CER) from being used to deny treatment.

Likewise, Sec. 2707 of the HELP bill requires that insurers develop and implement a reimbursement structure for making payments to health care providers that provides incentives for use of evidence-based medicine and best clinical practices. (See Sec. 2707 (1)(C))

Also, the Senate HELP bill permits a Medical Advisory Council to determine a minimum set of health care benefits that will be required under all public and private plans. The Council will report to the Secretary of Health and Human Services. Sec. 3103 of the HELP bill directs that the Council, in establishing minimum qualifying coverage, would (1) be required to exclude any coverage that provided reimbursement for the treatment or mitigation of a single disease or condition, or an unreasonably limited set of diseases or conditions; or that had an out-of-pocket limit that exceeded the amount described in Section 223 of the Internal Revenue Code of 1986 (re: Health Savings Accounts) for the year involved; (2) would establish the criteria in a manner that resulted in the least practicable disruption of the health care marketplace, consistent with the goals under this title, and (3) could apply different criteria for young adults.

According to Coburn, CER could lead to denial of care. If a treatment, drug or procedure is deemed less effective in a trial conducted by the government-run entity, Medicare funding could be denied for the treatment, drug or procedure. Once Medicare funding is withheld, patients are effectively denied access to that care. Similarly, Coburn and others fear that health care coverage determinations could be based on a patient’s health status, age, and/or quality of life. Such determination could deny care to patients based on these governmentally determined criteria. Health care decisions driven by cost rather than by a physician’s best judgment set a dangerous precedent.

CER could become a means of advocating for the least expensive treatment at the expense of respect for life. With cost as the only driver, the elderly, sick, and disabled may find their options for care severely limited.

Amendments to Prohibit Cost-driven Curtailment, Withdrawal, or Denial of Effective Life-Sustaining Treatment Rejected

Enzi Amendment

On June 22, 2009, Sen. Enzi offered two amendments to the HELP Committee bill which would have prevented the denial of end of life care and prohibit rationing on the basis of patient age, disability, medical dependency or quality of life. (amdts. 278 and 280).³ These amendments were rejected on a party line 13-10 vote. Opposition was lead by Sen. Mikulski.

Hatch Amendment

Sen. Hatch also offered amendments to the bill which would have prevented the rationing of health care available to patients (amdts. 232 and 233) and ensured that taxpayers were not forced to fund assisted suicide (amdt. 228). The Hatch amendments were rejected by a vote of 13-10 on June 18, 2009.

Roberts Amendments

Sen. Roberts offered three amendments which would have prevented private health insurers from being prohibited from covering treatments (because of the Medicare payment policy tie-in language.), which would have ensured that all individuals have access (if they wish for such access) to essential health benefits” (as defined by the Secretary under this title) regardless of their age, expected length of life, disability, etc., and one which would have required the Gateway (Exchange) to certify that participating plans do not have a pattern or practice of denying coverage to individuals based on their age, expected length of life, disability (amdts. 209, 210, and 211). The Roberts amendments were defeated by a 13-10 vote.

Roberts explained his amendments in remarks on the Senate floor:

But we have de facto rationing because Medicare and Medicaid refuse to pay doctors anything close to what their costs are. This means that those doctors can’t afford to take Medicare and Medicaid patients, which means that those individuals do not have access to care. That’s rationing. We know that the Administration wants to use comparative effectiveness research (CER) to contain costs. We know that the Center for Medicare and Medicaid Services (CMS) has a history of denying full payment based on costs.”

End of Life Care

In H.R. 3200, section 1233 addresses end of life care. The section leaves unclear whether the government or a health care provider could counsel or encourage a patient to choose physician- assisted suicide as a solution to terminal illness. While section 1233 remains in the bill, an amendment offered by the “Blue Dog Democrats” and accepted by the Energy and Commerce Committee clarifies end of life counseling and services by adding Sec. 138 to the bill. Section 138, though placed in an entirely different section of the bill, also addresses physician-assisted suicide and end of life planning. Section 138 prevents the “promotion” of assisted suicide, (though not the practice of it) and makes it clear that material distributed by Qualifying Health Benefits Plans (QHBPs) “shall not include advanced directives or other planning tools that list or describe as an option suicide, assisted suicide or the intentional hastening of death regardless of legality.” However, there is an exception to this for states which already require this information to be listed.

Also, section 138 clarifies that nothing in the text should be construed as requiring one to affirmatively ask for life sustaining treatments or as requiring an individual to consent to restrictions on the amount duration, scope or medical benefits of treatment.

Conclusion

AUL Action believes that in order to move forward, the health care reform legislation before Congress must be changed to ensure that life at all stages is protected.

Health care reform must expressly exclude mandates of any kind for abortion. It must not alter prohibitions on federal funding of abortion contained in the Hyde amendment or other provisions of law, and it must explicitly ensure that federal funds do not pay for abortion or for plans that cover abortion.

Health care reform must provide broad protection for the freedom of conscience of all Americans, whether or not they are health care providers or religious entities. No person or entity should be compelled to act contrary to their conscience in the payment for, provision of, or performance of health care.

Health care reform must not contain provisions that mandate or encourage the withdrawal or curtailment of effective life-sustaining treatment to the terminally ill, the chronically ill, or the permanently disabled.

Endnotes

1. States may provide health benefits coverage, including prenatal care and delivery services, to unborn children through SCHIP as permitted through a 2002 Department of Health and Human Services regulation See Federal Register, vol. 67, no. 191, Wednesday, October 2, 2002, Rules and Regulations

2. S. Amdt. 80 to H.R. 2

3. ”The Center shall not develop Quality-Adjusted Live Year measures or any other methodologies for the denial of Medicare benefits to patients against their wishes (or if the patient is incompetent, against the wishes of the patient’s surrogate) on the basis of the patient’s age or expected length of life or of the patients present or predicted disability, degree of medical dependency or quality of life.”