Jost Responds to USCCB
A short while, health law expert Timothy Jost wrote an excellent analysis of why the abortion provisions in the Health and Senate bills barely differ – I talked about it here. The USCCB put out a response, and in return, Professor Jost has come back with a compelling point-by-point refutation. Assuming familiarity with the various points of contention, I will quote some of the highlights:
Advantages of Senate bill
“… on some issues of concern to pro-life Christians, the Senate bill is stronger than the House bill. Pages 10 through 12 of the Issues of Life memo acknowledges that the Senate bill is stronger than the House bill on end-of-life issues and on clear opposition to assisted suicide and euthanasia and discrimination against providers that refuse to participate in it. Second, the memo at page 13 notes that the Senate bill, but not the House bill, includes $250 million for support for pregnant and parenting teens, provisions modeled on the Pregnant Women Support Act, which has been supported by the Bishops. While the Secretariat Issues of Life memo does recognize these differences, it amazingly fails to mention the provision found in the Senate bill that one would have thought would have been most strongly supported by pro-life Christians. Section 1303(a) permits states to totally outlaw abortion coverage in policies issued through the exchange. No such provision is found in the House bill. Their response to my memo states that section 258(a) of the House bill, which provides that state abortion laws are not preempted, also allows states to prohibit abortion coverage. But the Stupak amendment itself explicitly authorizes qualified health benefit plans to offer supplemental abortion coverage. This could be read to guarantee health plans the right to offer supplemental abortion coverage through the exchange, regardless of state law. The CBO estimates that 6 million Americans will obtain their insurance through the exchange without receiving federal subsidies. The Senate provision would allow states that have strong anti-abortion policies to ban all abortion coverage for these people as well as for those who receive federal subsidies. The House bill does not explicitly permit this.
The Senate bill is also stronger than the House bill from a pro-life perspective in that it expands the adoption tax credit and adoption assistance programs to make adoption a more attractive and available alternative (10909). “
Community Health Centers:
“Community health centers have never provided abortions and have no intention of providing abortions. Indeed, they cannot legally provide abortions. The Federal Regulations, 42 C.F.R. 50.301, 50.303, which date back to the 1970s, prohibit “any programs or projects supported in whole or in part by federal financial assistance, whether by grant or contract, appropriated to the Department of Health and Human Services and administered by the Public Health Services,” from the performance of abortions except for cases of rape, incest, or physical life endangerment of the mother. This includes community health center and the National Health Services Corps, which are both supported by funds appropriated to the Department of Health and Human Services and administered by Public Health Service.
Moreover, funds appropriated for community health centers and the National Health Services Corps under the Senate bill are not segregated funds, they are explicitly enhanced funding that will flow into a pool of funding for these programs that is otherwise subject to the Hyde amendment. Any community health center that attempted to use its funding to provide abortions would be in violation not just of the federal regulations, which have the force of law, but also of the Hyde amendment, as they would have no way to segregate the Hyde-appropriated funds from the funds appropriated by this Act. …The cases cited by the Bishops, which interpret earlier law and different regulations under the Medicaid program, have no relevance here. “
Conscience protections:
“It is contended that the Senate bill does not explicitly prohibit discrimination by the federal government or federal programs or state or local governments receiving federal funding against providers that refuse to provide abortions, as does the House bill (259). Indeed, the Response memo asserts that my claim that it does, is “based on a confusion.” But section 1303(c)(2) of the Senate bill explicitly states that the bill is not intended to have any effect on federal laws prohibiting discrimination against providers who refuse to provide, pay for, cover, refer for abortion or (going beyond the House bill) “to provide or participate in training to provide abortion.” The federal law to which it clearly refers is the Hyde amendment, which, like the House bill, prohibits discrimination in federal and federally-assisted state and local programs against individual or institutional providers that are unwilling to provide abortions (as well as to other federal statutes prohibiting discrimination, such as 42 USC 238n, which forbids discrimination in physician training). Hyde is the only federal law that comprehensively covers these issues, so it is certainly the legislation the Senate bill refers to. Both the House and Senate bills, therefore, offer equal protection of providers and professionals against discrimination or violation of their conscience.
Employer-based insurance:
“Neither bill will in any way effect abortion coverage offered through employment-related plans not purchased through the exchange, which will continue to cover the vast majority of Americans, and in all likelihood continue to offer abortion coverage. These plans are, of course, subsidized by federal tax deductions and exclusions to the tune of over $200 billion a year, our largest federal subsidy for abortion. Neither bill touches this subsidy in any way, except insofar as the Senate bill imposes an excise tax on high cost plans, which may be those most likely to cover nonessential health services, like abortion.”
Federal funds and abortion:
“Both bills provide that federal funds will not pay for abortions (other than those involving rape, incest, or physical life endangerment). The House bill does this explicitly, the Senate bill by subjecting the premium subsidies and cost sharing reductions to the Hyde Amendment, which has been adopted by the House and Senate every year since 1976. The House bill, as amended by the Stupak amendment, further provides that the abortion coverage will only be available to persons who receive federal subsidies by purchasing a supplemental policy that must be paid for with private or state funds. The Senate bill, by contrast, provides that plans that offer abortion coverage may not pay for that coverage with federal funds and must collect separately from the enrollee or the enrollee’s employer a separate premium to cover the full cost of abortion coverage, not considering any reductions in the cost of coverage attributable to not having to cover the cost of prenatal care, delivery, and post-natal care. The funds provided by this separate premium must be kept strictly segregated from the funds that cover other services, and these accounts must be audited by state insurance commissioners using GAAP, OMB, and GAO accounting standards to assure this strict separation. Under both bills, federal funds cannot pay for abortion; a separate privately-paid premium must fully cover the cost of abortion. Under the House bill, two pieces of paper must be issued. Under the Senate bill only one piece is needed (although in fact abortion coverage will be offered as a rider, so two pieces will in fact issue).”
Mandated abortion payments:
“It is objected that everyone who is a member of a plan that includes abortion coverage will have to pay for abortion coverage whether they want it or not, and that every plan member will have to pay at least a dollar for this coverage. Under 1312(a), consumers who purchase coverage as individuals can choose any plan, with or without abortion coverage, available through the exchange. If they are covered by their employer through the exchange, they may choose any plan within the tier covered by their employer, including, of course, a plan that does not cover abortions.
Under 1334(a)(6), the OMB is responsible for assuring that there will be at least one plan available through every exchange that does not cover abortions (other than those allowed under the Hyde amendment). The Response memo claims that this is a change from current policy, because none of the plans that currently contract with OMB for the Federal Employees Health Benefits Program may cover abortion. But as is very clear from section 1334, the OMB program created by the Senate bill is different from and entirely distinct from the FEHBP program. The 1334 OMB program is intended to broaden the options that are available to enrollees through the exchanges, making local insurance markets more competitive. In effect it builds on the exchanges themselves to assure that individuals in the small and non-group market have a variety of tax-subsidized options available. If there is any change here, it is a change that will make abortion less available. While employee-benefit plans (including small employer plans), currently subsidized by tax deductions and exclusions, often provide abortion coverage, the Senate bill, like the House bill, assures that federal tax credit will never pay for abortions, whether coverage is purchase through an OMB plan or otherwise through the exchange….
It is argued that the Senate bill makes enrollees pay for other enrollees’ abortions. Of course, by definition, a person who buys health insurance pays for someone else’s health care. That is the nature of insurance pooling. But only those who choose to purchase abortion coverage will pay for other enrollees’ abortions, expecting that the others will pay for their own if they choose to have one.
It is also argued that the Senate approach allows federal money to be used to pay for plans that cover abortions. The essential point is that the Senate bill does not allow federal money to be used to pay for abortions. Federal Medicare and Medicaid funds currently help to pay for hospitals that pay for abortion, but they do not pay for abortions. This is directly analogous to the Senate approach.”
Comments are closed.
Prof. Jost still doesn’t seem to know the difference between the Hyde amendment and the Hyde-Weldon amendment, and therefore he has no response to the charge that the federal government and local governments will not be restricted from discriminating against pro-life providers in its increased authority through this bill. He also fails to rebut Obama’s $11 Billion for CHC abortions, missing the fact that if CHCs don’t do abortions now it’s because their current funding was subject to Hyde while this funding is not, he makes his case worse by conceding that a new 15 million of poor women will go to CHCs which can be wholly funded now to do abortions on them since they are the women not having abortions now due to lack of coverage. He fails to rebut the preventive care point. He fails to rebut the fact that caselaw requires any comprehensive women’s health funding to include abortion unless it is explicitly excluded. And he continues to try to describe it is a positive thing that the Senate bill funds abortion insurance while the House bill doesn’t, so that his bottom line is that it’s better to fund abortion insurance and offer it to every woman in the country than to not do so, which is simply calling white black and vice versa.
An interesting exchange of an analysis of a piece of legislation. It is a good topic for us to discuss as our Republican friends have lost interest in the fight given the dynamics that have emerged in the last 48 hours.
Quite the opposite to the negotiations and modifications of the Senate bill when it was coming to the floor and various Senators (Landrieu, Lieberman, Nelson, etc) holding up the bill until they could move it to the right, Speaker Pelosi is sitting in a better position.
She has the votes to pass the Rule this weekend. A few modifications will be made and she is now in the enviable position of the proponents of various options competing to deliver a bloc of votes for the bill in exchange for their concern being accommodated. There are about four or five such blocs out there (Stupak being one) and she only needs one of them.
The Republicans have actually pulled their robo calls on abortion in certain congressional districts because it is having the impact of pushing Congress members to ask for Stupak in exchange for consenting to every other “liberal, socialist, economy killing” provision in the bill. Not the way this was supposed to work.
Those who truly believe the Stupak language is important need to make their message to their Representative “I want to you make Stupak your ONLY condition for supporting the Rule on the Democratic Health Care bill. “
A couple notes:
By preserving the Hyde Amendment’s restrictions in every respect, the Senate bill also preserves the status quo on abortion.
Is this a status quo that should be at all acceptable to pro-life Catholics?
At this point in time, however, we do not have the choice between the House and Senate language. The Democrats no longer have a filibuster-proof majority in the Senate, and therefore the Senate bill must be the platform for the health reform bill. Changes in the legislation can only be made through a reconciliation bill, which requires only a 51 vote majority in the Senate. But reconciliation can only deal with revenues and outlays of the federal government, which does not include the abortion issue, since by definition federal money cannot under either bill be spent for abortion.The Republicans have made it clear that they will block any changes from being made to the Senate language through reconciliation. The Bishops statement that the House should simply substitute the House language for the Senate language in the reconciliation process simply demonstrates a misunderstanding of the Senate procedures that constrain action at this time.
I would answer that asking the bishops or Catholics to subordinate their concerns for the unborn to the Democrats’ political problems and the rules of the Senate simply demonstrates a misunderstanding of the Church’s commitment to the unborn.
I’m sorry for the Democrats that they no longer have a filibuster-proof majority in the Senate. This does not make language that was unacceptable suddenly acceptable. That Prof. Jost seems to think this has any bearing whatsoever on the question leads to me to seriously doubt his other interpretations.
He also fails to rebut Obama’s $11 Billion for CHC abortions, missing the fact that if CHCs don’t do abortions now it’s because their current funding was subject to Hyde while this funding is not . . .
See The Senate’s Big Abortion Flub: How one missing sentence gave new ammo to foes of the health care bill. here. An excerpt:
BTW a look at Prof. Jost’s articles on health care (http://law.wlu.edu/faculty/page.asp?pageid=907) give the picture of someone with a lot invested in getting health care passed, and not a particular interest in the rights of the unborn.
In fact, everything I could find that he has written on the subject of abortion is about this very issue. http://www.google.com/search?rlz=1C1CHMB_enUS358US359&sourceid=chrome&ie=UTF-8&q=timothy+jost+abortion
So, I hope you might understand why some might be more inclined to trust the bishops on this one that Prof. Jost.
I understand this sounds like ad hominem, but these are complicated issues, and we do need to rely on personal trust. I have reasons to trust the bishops and Bart Stupak; I am sure that Prof. Jost is a brilliant scholar, and an expert on health law; but I have no reason to trust him to do right by the unborn.
To put it another way, I see no evidence that Prof. Jost would not support the health care legislation even if it did fund abortion.
Which doesn’t mean he’s villainously trying to deceive us into creating a new era of abortion. But I don’t think his perspective on this question is completely aligned with the Catholic perspective.
Jost, a law professor at Washington and Lee University and a top health care expert who is a devout Mennonite and pro-life advocate. Jost’s analysis was featured prominently in last week’s Politics Daily article. Like the Catholic bishops, Jost supports affordable, quality, universal health care. But as one of the leading experts in the field of health care legislation, he believes that the bishops’ opposition to the bill is mistaken, and his analysis was a powerful deconstruction of the bishops’ claims.
In a sign of how closely the bishops conference is working with some of Obama’s political opponents on this issue, a memo in rebuttal to Jost’s analysis was posted early Sunday morning on the Web site of the National Right to Life Committee (NRLC), an influential lobby that is a dedicated foe of President Obama’s and of Democratic efforts to overhaul the health care system.
Yet as of late Monday, the bishops’ memo had still not been posted on the bishops’ Web site or sent to the media. That effectively gave the NRLC and its allies a head start in getting the message against Jost out to their members and blogs. =={ Politics Daily
If the abortion language in the House and Senate bills don’t really differ then why don’t the Democrats just accede to Stupak’s demands and go with the House language? The fact that they seem willing to see the bill go down in flames than use the House language belies the claim that there’s no real difference here.
There are plenty of big differences between the bills; abortion is not one of them.
There are plenty of big differences between the bills; abortion is not one of them.
True but irrelevant. The Democrats have promised to make a bunch of changes to the Senate bill to quite House opposition. That they won’t do this with the abortion language is telling.
BA
Ah, but there is a thing. While the actual outcome will be, more or less, the same, and both would actually be a pro-life victory because it would allow people to remove their own funding from abortion (!!!!!!), the perception is that there is a difference, and the debate is a power-struggle over that perception. If they “give in” the next thing is “oh, see, they are weak, and we control them.” It is really the power play of perception which is the issue.
Blackadder: as you well know, the abortion changes – not being related to budgetary issues – would not be allowed under the current reconciliation rules. And yet when asked if the Republicans would support bending the rule for the abortion issue alone, they said no, they would vote with the most ardent pro-choice Democrats. Very telling, don’t you think, about their true priorities?
Very telling
Is there any reason not to regard Morning’s Minion’s 8:03 am comment as very telling about his true priority?
Tom,
You mean to stand against the ardent pro-choice Democrats who don’t like health care reform?
Could someone please point me to a some of Prof. Jost’s pro-life writings? I think I made a good faith effort to find them and came up empty. I am quite comfortable concluding that defense of the unborn has not been a particular focus of his work, but I could be missing something.
I really don’t give a damn about conspiracy theory between the USCCB and right to life groups. Why shouldn’t they be working together?
–
I think what Tom means is that you seem much more interested in using this issue to attack Republicans than you are in passing pro-life health care reform. You have had several posts calling out hypocrisy for people failing to get behind the legislation, and I don’t recall a single one imploring your party to move it in a pro-life direction, though you may make passing comments that this would be a welcome development.
As you might say, that’s telling.
–
When offered a direct vote that would have put Stupak-like language into health care reform, and avoided this whole reconciliation dilemma, Senate Democrats, many of them Catholic, voted against it. To me, that’s a bit more “telling,” than an opinion on a procedural matter.
But that passed with nary a crosswise look from Vox Nova. But now we are expected to put our pro-life principles aside in order to overcome this blunder. No thanks.
Blackadder: as you well know, the abortion changes – not being related to budgetary issues – would not be allowed under the current reconciliation rules.
The Democrats are talking about passing the bill without even voting on it. The idea that they would have some procedural scruple about not making the abortion changes via reconciliation is silly.
Tom- my “true priority” here is to get health reform passed.
Blackadder – first, the procedural silliness you refer to is a common trick, used often in the past by Republicans (surprise!). The Byrd Rule is not a “procedural scruple”. And if the Republicans were willing to support any strengthened language on abortion, I’m sure Pelosi would consider it.
Re: Morning Minion’s 8:03 am.
NO – the Republican tactical stance OBVIOUSLY INDICATES NOTHING ABOUT THEIR TRUE PRIORITIES. It is a counter-maneuver to the DEMOCRATIC reconciliation maneuver. Nothing less, nothing more.
BA,
Yes, the Democrats could include a revision of the Senate abortion language in the Reconciliation bill. It would then make the whole reconciliation bill subject to a point of order. The GOP has been approached and ask if they would not raise a point of order so the abortion language would remain and they said no.
Henry:
No, I mean to assert the moral inferiority of Republicans.
For him to stand agasint ardent pro-choice Democrats would make a nice change.
The idea that they would have some procedural scruple about not making the abortion changes via reconciliation is silly.
Blackadder,
For the Senate to change the abortion language through reconciliation, the change would have to involve federal spending (which everyone knows it does not), and the Senate parliamentarian would have to rule that it affected federal spending. So the only way for the Senate to change the abortion language is for the Senate to blatantly violate the rules. And of course they would be violating their own rules to do something they don’t want to do anyway.
The complaint about all of the procedural moves the Democrats are making or contemplating is not that they are violations of the rules. They have all been done before. In fact, I have seen the “deem pass” maneuver described as “very common.” All these things have been done by Republicans and Democrats. The argument is, “This time it’s different.”
I find it highly ironic that, again and again, saying unkind things about Republicans is guaranteed to provoke the largest quantity of comments. And let me say it – yes, on this issue of healthcare reform, Republicans are “morally inferior”. They don’t give a tinker’s damn about the uninsured, because…well, because their alteranative plan barely makes a dent in reducing the number of the uninsured. They don’t give a tinker’s damn about abortion, but will use the unborn as a political weapon in the fight they really care about – standing up for laissez-faire liberalism and the virtues of individualism.
They are well aware that passing this plan will be a catastophe for them, explaining the bluffs about how the Democrats will pay the price for passing it (if they really felt that way, wouldn’t they be egging the Democrats on?). Remember, the Senate bill is uncannily close to the moderate Republican alternative to the 1994 Clinton bill. It is uncannily close to the Romney reforms, which were then celebrated in Republican circles. Knowing all of this, they still play on people’s ignorance and rouse the rabble with battle cries of “socialism” “death panels” and “government-controlled healthcare”. Well, sorry, this isn’t a game. It’s about life and death for many people. And I really don’t appreciate Republicans treating this as a great game.
Now, on the issue of taking on “pro-choice Democrats”. On what? I was an ardent supporter of Stupak when he first pushed this issue last year, and I was elated by the passage of the House bill. When the Senate bill passed, I was initially unsure about the abortion provisions. I thought they may be weaker than Stupak, but so much is weaker in the Senate bill, and we cannot hold up reform because this bill is imperfect. As I said, this is the most incremental and “conservative” major healthcare reform initiative ever – more than Truman, Kennedy, Johnson, Nixon, and Clinton. It represents the last best chance. If this fails, we are all in a heap of trouble, especially the uninsured.
But then I learned something interesting. If you go through the language, you will find very little difference between the abortion language in the House and Senate bill. It seemed that the Senate simply wanted to stop Stupak including the Hyde amendment as permanent law – today, it must be re-approved each year, and has been since 1976. Fine, but the Senate bill explicitly puts the abortion funding under the current rules at the time -which means Hyde as long as it continues to be re-enacted each year. It’s there. As I and so many others have pointed out, federal funds cannot be used to pay for abortions in either bill. If there was a chance that Stupak’s stronger language could be adopted, fine, but it doesn’t seem that way in the real world. But the real question is if support for this bill represents formal cooperation with evil, if the proxmity of federal funds is too close to abortion to justify support. And there is the answer is clear – not by a long shot. Pass this bill. Now.
I want the bill to pass. It’s like the good side of bad and the downside of up. I mean it honestly is.
The good side of bad, if the bill is passed, people will have healthcare and that should be something we all want for everyone. The downside of up, if it passes, there is some type of cooperation with evil. However, both bills allow abortion in the case of murder, or rape or incest. So the coopration with evil would be there in either bill really.
I’m on the fence of whether to support the bill, and would probably prefer if it passed (even in its current version) to not.
What I do not take kindly to is the notion that anyone who opposes it is a nihlist, dupe, or liar. That’s when I start to think somebody is trying to sell me something I really don’t need to buy.
I had a similar feeling in the run-up to the Iraq War.
And why is this the “last best chance.” If the bill fails, will the moral imperative fall away? Are you so distrustful of your fellow Americans that you think it will continue to go unaddressed?
This “we must act now!” stuff is part of why I feel like I’m being taken for a ride.
For the Senate to change the abortion language through reconciliation, the change would have to involve federal spending (which everyone knows it does not)
We’re talking about bills that total around 2,000 pages with numerous substantive differences between them. And I’m being asked to believe that of all these differences, the only one that can’t be done through reconciliation is the abortion language (unlike, say, the public option, which is also supposedly revenue neutral). And there is apparently no way to tweak the Stupak language to get it through reconciliation. I find that really unlikely.
Of course, the fact that Harry Reid wouldn’t include the Stupak language in the Senate bill and was even willing to buy off Senator Nelson rather than include the Stupak language.
In short, if you think these posts are doing anything to help get the bill past, I strongly suspect you are mistaken.
John: I think the Republicans and tea-partiers are nihilists. I’m disappointed with the USCCB, and I think they are getting lousy advice, but I do not impute any bad motive to them. I also do not impute any bad motive to those who, like Stupak and Cao, want to vote for the bill but have concerns about abortion.
BA,
Anything can be done if a point of order is not raised. If you can use your good offices with the GOP to get them to not raise a point of order against the reconcilition bill (they can still vote their conscience for or against it), we could move forward on this. I’ll be waiting by the phone to hear from you.
Blackadder,
Actually, the Catholic Bishops have offered a way to get Stupak inserted through reconciliation. Unlike the Republicans, who fired the parliamentarian to push through the Bush tax cuts, they are only asking the Democrats to overrule the parliamentarian. Of course, if the Democrats pulled a stunt like that for anything other than inserting the Stupak language, you would condemn them for it.
I will provide some grist for the “Republicans are scum” mill.
As I see it, the major difference is in the treatment of the Hyde amendment. The House bill explicitly includes Hyde-like restrictions, while the Senate bill gestures toward it in order to enforce that funds not be used for abortions or abortion coverage. The problem that the bishops have with that is that the Hyde Amendment is not really a law, it is a rider that is attached to HHS expenditures each year. So, the Senate bill’s protection against abortion funding is only as good as Congress’s commitment to the Hyde amendment, which has been good for many years, but may not.
One solution to this problem is to make the Hyde amendment permanent (http://feeds.doublex.com/click.phdo?i=9208ccb874b7de4cce445c79bc11ea80) so that it’s not in jeopardy every year.
Which raises the question of why the Republicans didn’t do that when they were the ones in charge.
John
So why all the support for Hyde in the first place? It’s not just “why didn’t they make it permanent” but why was it supported as a solution to anything, if it now is to be used to say it is not?
John,
I think that is the issue. The Stupak amendment makes Hyde permanent law. The Senate bill keeps the status quo, whereby Hyde must be enacted annually. I don’t think anybody agrees that the House language is better on this point, but why have the goalposts been shifted so dramatically?