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So, It’s An “Obscure” Part of the Law?

May 16, 2010

I find this ironic and yet very telling:

Abortion Opponents Capitalizing on New Health Care Law

 An obscure part of the law allows states to restrict abortion coverage by private plans operating in new insurance markets. 

Read the rest on FoxNews.

This aspect of the law was consistently brought out in the debates, and it was shown how this law actually was incrementally better than the status quo. It was only “obscure” because several ideologues tried to obscure it so they can use abortion as a reason to fight the law. Now, the law is being shown to do exactly what pro-life supporters of the law said it could and should do. Isn’t it ironic that those who fought tooth and nail against the law, and said it made things worse, now find it really does improve things after all? Will they apologize to all the people they demonized?

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62 Comments
  1. Kurt permalink
    May 16, 2010 4:45 pm

    Will they apologize to all the people they demonized?

    No. Apologizing is something decent people do. The Pro-Life establishment can never again be trusted.

  2. Rodak permalink
    May 16, 2010 5:11 pm

    I am easily old enough, and have become cynical enough by having to walk around the bull product forever littering my corner of the world, to state without shame that I believe the vast majority of the people opposing the health care legislation to be motivated by nothing more noble than their horror at the thought of having to pay for health care being provided to persons other than themselves.

  3. Colin Gormley permalink
    May 16, 2010 5:51 pm

    Got links for the assertation that it was “discussed.” Also, since Planned Parenthood is opening up new clinics based on the funding they expect to receive I don’t call that a “win.”

    • May 16, 2010 6:05 pm

      http://www.cbsnews.com/8301-503544_162-20000846-503544.html

      No health care plan would be required to offer abortion coverage. States could pass legislation choosing to opt out of offering abortion coverage through the exchange.

      Or even lifesitenews, when mentioning it, tries to downplay it:
      http://www.lifesitenews.com/ldn/2009/aug/09082002.html
      The amendment, however, sets up an accounting scheme that ostensibly does not allow for public monies to fund the abortion procedure – a tactic that critics have said is a laughable attempt to address the problem of taxpayer funding of abortion

      Funny enough, back in the day, it was said that such an idea “might work” for a public option, leading it to being acceptable!

      http://online.wsj.com/article/SB10001424052970203706604574374873797534360.html
      (There may be ways around this problem, by the way. In this column, I floated the idea of having abortion not covered in the basic plan, but giving consumers the ability to purchase, with their own money, a rider that does cover abortion. Bill Donohue of the conservative Catholic League said the idea “could break the deadlock in Catholic circles” and Richard Doerflinger of the United States Conferences of Catholic Bishops said it was “such a crazy idea that it might just work.” I haven’t heard much pro-choice reaction yet.)

      Funny how that changed… seriously there was much talk on politico, on commonweal, etc on this– but I did show lifesite and cbs mention it… not obscure…

  4. Frank permalink
    May 16, 2010 6:39 pm

    . . . I believe the vast majority of the people opposing the health care legislation to be motivated by nothing more noble than their horror at the thought of having to pay for health care being provided to persons other than themselves.

    ~~~~~ BINGO! ~~~~~

    The modern conservative is engaged in one of man’s oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness. -John Kenneth Galbraith

  5. Cindy permalink
    May 16, 2010 6:43 pm

    As if they would ever apologize. They bascially said that part of the law didnt matter. Ask Matt Bowman!

  6. Kurt permalink
    May 16, 2010 8:26 pm

    Also, since Planned Parenthood is opening up new clinics based on the funding they expect to receive I don’t call that a “win.”

    Health insurance will be extended to 32 million Americans currently without it. Some will use that newly acquired health insurance to obtain services other than abortion from PP (which does provide extensive services other than abortion).

    Let’s not make this the new conservative meme.

  7. May 16, 2010 10:16 pm

    This is quite funny. I mentioned this in practically every health case post I wrote (after the policy was formulated of course). I mentioned it and kept mentioning it. It was and remains a critical part of the whole healthcare bill (sorry…law!). Nothing obscure about it. And if anybody wants proof, go back and look at the posts under the “heathcare” tab.

    I remember a little while back, the American Catholic blog touted that “Tennessee is the first state to declare that any health care plan exchanges set up by ObamaCare may not offer abortion coverage…Tennessee is a model of how state pro-life groups can successfully fight pro-abortion provisions in ObamaCare. Every pro-life group should be pressing for similar legislation to be passed in each state of the Union.” (http://the-american-catholic.com/2010/04/22/tennessee-no-to-abortion-under-obamacare/).

    This would be funny if it wasn’t so tragic. It clearly never struck the author that he was witnessing Obamacare in action! It only shows that people really were not listening during the debate.

    • May 17, 2010 3:30 am

      MM

      I laughed when I first saw the Fox Report. “Obscure” — yeah, right. It was so obscure… only to people who listened to the ideologues who ignored this aspect of the law.

  8. Colin Gormley permalink
    May 16, 2010 11:00 pm

    So will the health care bill boosters here apologize for the fact that the bill does fund aboritons using public money?

  9. Kurt permalink
    May 17, 2010 7:19 am

    So will the health care bill boosters here apologize for the fact that the bill does fund aboritons using public money?

    Well, since it doesn’t fund abortions using federal money, there is nothing to apologize for.

  10. brettsalkeld permalink*
    May 17, 2010 7:46 am

    Colin,
    Is that an admission that the issue was in fact, “discussed”? Or is it a failure to admit the same?

  11. ctd permalink
    May 17, 2010 8:46 am

    Does anyone really think that all 50 states will exercise that option? Even if they do, the other abortion and conscience problems with the law remain.

  12. M.Z. permalink
    May 17, 2010 8:48 am

    Intellectual honesty would seem to compel the prolife leadership to admit their errors. I would include the USCCB in this list and a number of the bishops that were vicious (and continue to be so) toward organizations and people that supported the legislation, having believed the USCCB to be in error over the interpretation of the bill.

    • May 17, 2010 9:49 am

      MZ

      What I found interesting is that the idea seemed to be supported by the USCCB before it wasn’t.

  13. Ronald King permalink
    May 17, 2010 9:14 am

    I have never heard nor read an admission to being wrong. That takes humility. I still believe Catholics could have developed a healthcare bill that could cover anyone who wanted coverage. Over 60 million and a lot of expertise in business, law and politics and they make no effort to create something that would help everyone in need, that is pure laziness or selfishness or … However, I could be wrong.
    It seems that it was more about getting power rather than doing the right thing in order to hold on to whatever wealth they had, like Rodak stated above.

  14. Dan permalink
    May 17, 2010 9:40 am

    The problem is, even though an “obscure” part of the law favors pro-lifers, the intent and direction is still towards pro baby killing. How simple we are to accept a crumb while the meal is stolen right from under our noses.

    • May 17, 2010 9:51 am

      Dan

      No, the intent and purpose was for health care. The whole bill makes it so people get it without paying for abortion funding– everyone has that option now. They have to give that option. They don’t have to give abortion options, but they have to give an anti-abortion one! This is far superior than the status quo, which is what is ignored.

  15. Kurt permalink
    May 17, 2010 9:44 am

    M.Z.,

    You might be right, but in charity I would be willing to lower the bar (still with little hope of positive results). Let them continue to press the point of their dissatisfaction with the health care bill, but simply allow that sincere abortion opponents have differences in opinion and analysis on this matter. Let’s have no more screams of “baby-killer” at those of us who are long-standing abortion opponents AND supports of HCR.

    The USCCB official statements and many bishops including Cardinal George do seem to be of this view, though not very vocal about it. The Right to Life Establishment and the small minority of bishops most connected to right wing political movements do not. It is a shame.

    • May 17, 2010 9:51 am

      Kurt,

      I think it is interesting that even the pro-life wing thought this would be “acceptable” if it was done for the public option. Why is it different now?

    • M.Z. permalink
      May 17, 2010 10:08 am

      With declarative statements like “funds abortion” still being thown around without reprecussions, I have little hope. This is the most unserious policitical climate I’ve seen, which admittedly isn’t the most exhaustive time frame. Until people that make claims like “I haven’t read the bill but…” aren’t taken seriously, this isn’t going to change. Debate requires two informed sides in the pursuit of truth. What we have for the most part today is simple demogaguery.

  16. David Nickol permalink
    May 17, 2010 10:11 am

    Does anyone really think that all 50 states will exercise that option? Even if they do, the other abortion and conscience problems with the law remain.

    ctd,

    Well, does anybody think that if Roe is overturned, all 50 states will criminalize abortion?

  17. Bruce in Kansas permalink
    May 17, 2010 12:18 pm

    If in fact this part of the law does allow for states to restrict abortion, I do not understand why that would make it a source of mirth and a reason to cast derision and insults against “pro-lifers”

    What am I missing?

  18. Phillip permalink
    May 17, 2010 12:41 pm

    Given that the bill is over 2000 pages, that Senators and Reps. admitted they hadn’t read it and that Pelosi noted we had to pass it to know what was in it, there may be “obscurities” that will not be so pro-life that we will learn of in the future. That Planned Parenthood will build new clinics with the money and yes provide abortions there along with other, immoral, healthcare is a problem even if some licit care is provided.

  19. Kurt permalink
    May 17, 2010 1:17 pm

    Phillip,

    if you have failed to read or develop an understanding of the bill, that is understandable. I would just hope those of you who have not read the bill will refrain from any negative judgment of those of us who have.

    On the Planned Parenthood issue, I guess if a recovering economy causes a spike in contributions to PP, that is a problem. So do we oppose economic recovery?

    • May 17, 2010 2:35 pm

      CTD

      What about integrity with the USCCB’s representative on this? When it is clear now he supported something similar to what we got, why is there a big change? More importantly – the claim no one has dealt with what the USCCB has raised is false: read Dot Commonweal. While one must respect the authority of the USCCB, as I pointed out elsewhere, we must remember where it starts and ends.

  20. Phillip permalink
    May 17, 2010 2:44 pm

    Kurt,

    Its great that you have read all 2500 pages of the bill when even those in Congress said they didn’t. Its also good tat you have a complete understanding of the bill when experts in health care are still undecided on what exactly the final outcome will be.

    Do I oppose economic recovery? No. Do I oppose people using the extra money they would gain from such a recovery to fund PP? Yes. Do I oppose the govt. from funding the #1 provider of surgical abortions as well as a vocal opponent of consciencious objections of health care workers to providing abortion related service? Yes.

    • May 17, 2010 2:47 pm

      Phillip

      I think the question can go this way: if economic recovery means there will be more abortions, because more people will have the money to have abortions, will you reject economic recovery so less abortions will happen?

  21. Colin Gormley permalink
    May 17, 2010 2:45 pm

    “Is that an admission that the issue was in fact, “discussed”?”

    I simply posed the question.

    “Well, since it doesn’t fund abortions using federal money, there is nothing to apologize for.”

    PP seems to think otherwise:

    http://www.plannedparenthood.org/about-us/newsroom/press-releases/dont-understand-new-health-care-reform-law-youre-not-alone-but-planned-parenthood-can-help-32529.htm

  22. Mark Gordon permalink
    May 17, 2010 3:09 pm

    Colin,

    Where on that PP page do you find evidence to support your contention that HCR means federal funding of abortions? The only mention of abortion was when the video complained about additional restrictions on abortion services as a result of HCR.

  23. Phillip permalink
    May 17, 2010 3:12 pm

    Actually that is unrelated to whether govt. funding of abortions is good. Govt. funding of abortions is not morally good. But if I have to answer an unrelated question, then people will use their money gained from the good of an economic recovery for an evil end.

    • May 17, 2010 3:20 pm

      Phillip

      It’s not unrelated to general questions — if the abortion rate goes up, is it good or not? If you can accept people using money for an evil end with a financial recovery, doesn’t that open it up in other ends, especially since the government would be involved in the recovery and not imposing legislation which would limit the possibility of abortion from the recovery?

  24. Phillip permalink
    May 17, 2010 3:41 pm

    Again a side issue. Though it may help you justify it. Though if I recall, much of the support for Obama here has been that his programs would improve the economy and thus reduce abortions.

    But again that is an aside. What people choose to do with their money is their choice for good or ill. The govt. improving the economy is a good but that is not directly related to what individuals do with their money. That is their own personal moral choice.

    The problem remains that there is likely funding in the govt. bill for abortions. This is wrong.

  25. ctd permalink
    May 17, 2010 3:54 pm

    HK:

    Forgive me, but I don’t get what you are asking in the first two sentences.

    Regarding whether anyone has refuted what USCCB claimed, it is not a false statement. dot Commonweal’s postings are nowhere close to legal refutation of the USCCB legal memorandum on the issue. No one, not even Professor Jost, has refuted the conclusions of the General Counsel office.

  26. Kurt permalink
    May 17, 2010 4:07 pm

    Kurt,
    Its great that you have read all 2500 pages of the bill

    Well, it is part of the duties my employer gives me a paycheck for.

    Its also good [that] you have a complete understanding of the bill when experts in health care are still undecided on what exactly the final outcome will be.

    Experts? You mean people whose profession it is to read and understand such legislation?

    Do I oppose people using the extra money they would gain from such a recovery to fund PP? Yes.

    I oppose it as well. I wish and hope they would not and would use various means to discourage them. However, I would not oppose legislation designed to promote economic recovery because some people would use it to pay for abortions. And I oppose in theory a woman going to PP for a mamogram, though I recognize that sometimes that is the only provider available for her. In that situation, I keep my private theories to myself.

    Do I oppose the govt. from funding the #1 provider of surgical abortions as well as a vocal opponent of consciencious objections of health care workers to providing abortion related service? Yes.

    But not the #2 provider or the #3 provider or the #4 provider?

    The George Washington University Hospital performs abortions. People who will have health insurance under the new law, people who have heath insurance under current government plans and people who have health insurance from the Catholic Archdiocese can use the Hospital but not for abortion.

    If you have a consistent principle of opposing patrongage of any provider than performs abortion, I understand that. I think that viewpoint is in such a small minority that it is best to put engery in anti-abortion initiatives with a greater likihood of success.

    What I don’t honor are those who drag out that argument at times but really don’t consistently stand with it.

  27. Phillip permalink
    May 17, 2010 4:18 pm

    “Experts? You mean people whose profession it is to read and understand such legislation?”

    So then they agree on what the effects of this legislation will be?

    “If you have a consistent principle of opposing patrongage of any provider than performs abortion, I understand that. I think that viewpoint is in such a small minority that it is best to put engery in anti-abortion initiatives with a greater likihood of success.”

    Not patronage, govt. funding. I don’t have a problem with PP providing mamograms. I do the govt. giving money to George Washington University or PP for abortions. I also oppose private insurance providing funding for abortions. Quite consistent.

  28. Phillip permalink
    May 17, 2010 4:37 pm

    And an expert who is paid by his employers to read the legislation and interpret it. He seems to think that the legislation funds abortions.

    http://www.usccb.org/healthcare/05-10-10_america_op-ed_response_for_posting.pdf

  29. Colin Gormley permalink
    May 17, 2010 5:44 pm

    “Where on that PP page do you find evidence to support your contention that HCR means federal funding of abortions?”

    From the page:

    It significantly increases access to reproductive health care, including family planning.

    Which is PP slang for abortion.

    Curiously I found that it didn’t complain about lack of public funding, only that private funding can be curbed.

  30. David Nickol permalink
    May 17, 2010 7:19 pm

    And an expert who is paid by his employers to read the legislation and interpret it. He seems to think that the legislation funds abortions.

    Phillip,

    Actually, what he says is that courts will require funding for CHCs to be used for abortion. When will we see these court cases? Politifact points out

    They [CHCs] have never in their 45 years provided abortions. They did not even before the Hyde Amendment was enacted. They have not even when they got $500,000 from the economic stimulus to expand their services (essentially coming the same way as proposed through Senate bill). They have not even though federal funding limited by the Hyde Amendment comprises just 20 percent of their annual budget now (and they’ll still be getting that appropriations money, with its strings).

    So we are either going to see lawsuits demanding that community health centers be allowed to perform abortions with these federal funds, or we’re not. And if there are such lawsuits, the courts will either decided CHCs can use the funds for abortions, or they won’t. What I want to know is when this is supposed to happen. Apparently the USCCB can see into the future and say that it’s going to happen, so they should be able to give us some idea when.

    From everything I have read, it just doesn’t seem likely that any of this will come to pass. But we shall see.

  31. Mark Gordon permalink
    May 17, 2010 9:56 pm

    Sorry, Colin. I didn’t realize you were using a super secret PP decoder ring.

    Incidentally, the page doesn’t complain about a lack of public funding because that was never on the table in the first place. What is notable about HCR is its significant new restrictions on private insurance coverage of abortion. That’s what PP complains about. The fact you don’t know that means you haven’t bothered to really follow the debate.

  32. Rodak permalink
    May 18, 2010 3:43 am

    Is any there any provision in the new legislation that earmarks gov’t funds to pay for abortion? Or is it just that “money is fungible,” so that any money given to, for instance, PP is deemed to be money that is paying for abortion? Well, on the “money is fungible” front, if one wants to be a purist about it, no gov’t money should go to any medical facility at which abortions are performed. The money taken from pot A to pay for the abortions that the money in gov’t pot B can’t pay for will still be restored by money from pot B, if necessary: Satan’s done the math. So down with medicine! What has a Christian to do with healing, eh? Down with medicine! That will help the ill and infirm! (Go more swiftly to their reward, I mean…)

  33. Phillip permalink
    May 18, 2010 6:48 am

    David,

    Here’s the argument from the USCCB expert. Again one of many who, as I pointed out above, do not really know what this bill will do. But certainly the doubt is reasonable and, given that experts don’t agree on what this bill will do to actually help health care, it is reasonable for pro-lifers to oppose it. Particularly as some experts argue,it easily opens the door for abortion funding. Even Planned Parenthood experts think so.

    “In this jurisprudential context, PPACA has created two specific statutory bans on the
    direct funding of abortion with federal taxpayer dollars appropriated under the Act. First,
    PPACA provides for grants to school-based health centers, and at the same time defines those
    centers so that they “do[] not perform abortion services.” PPACA, § 4101. Second, PPACA prohibits the use of tax credits and cost-sharing reduction payments to pay for elective abortions
    in the health insurance exchanges. Id., § 1303(b)(2). But this leaves all remaining federal funds
    appropriated under the Act without Hyde restrictions—which means that those funds must be
    used to pay for abortions where the statutory language describing the services is broad enough to
    encompass abortion.4
    For example, PPACA appropriates billions of dollars for Community Health Centers
    (CHCs). CHCs provide primary health services, including “health services related to family
    medicine, internal medicine, … obstetrics, or gynecology that are furnished by physicians,” and
    “family planning services.” 42 U.S.C. § 254b. Thus, the statutory terms that describe the
    services provided by the CHC program are as broad as the terms used in the Medicaid statute,
    and in the case of “family planning services,” the terms are identical. Therefore, by virtue of the
    same reasoning applicable to the Medicaid statute, courts are highly likely to conclude that the
    CHC program must provide tax-funded abortions unless Congress attaches to the CHC funds a
    Hyde-type limitation. And because PPACA appropriates CHC funds without including a Hydetype
    limitation in that appropriation, those funds must be used for abortions.
    CHCs have existed for a long time, and so far they have not provided abortions
    except in the narrow range of cases where Hyde has authorized them (rape, incest, and threat
    to maternal life). But that is precisely because all of their federal funding, at least so far,
    appears to have been made through annual appropriations bills that included the Hyde
    Amendment. The problem with PPACA is that it makes a separate appropriation of billions
    of dollars for CHCs without including Hyde Amendment language to cover that
    appropriation. By its very terms, the Hyde Amendment only applies to appropriations to
    which the Amendment is attached. Omnibus Appropriations Act, 2010, Div. D, tit. V, § 507
    (a) & (b) (stating that “[n]one of the funds appropriated in this Act … shall be expended for
    any abortion” or “for health benefits coverage that includes coverage of abortion) (emphasis
    added).5
    The Secretary of HHS wrote recently that HHS regulations exclude federal funding of
    abortions in CHCs, subject to life-of-the-mother, rape, and incest exceptions. We agree that the
    HHS regulations she cites are perfectly valid as to funds that Congress appropriated specifically
    subject to the annual Hyde restriction. But those regulations rely for their statutory authority—
    and their validity—on the annual Hyde Amendment. Because that annual Hyde Amendment
    does not apply to PPACA appropriations for CHCs, and because that section of PPACA does not
    have Hyde language of its own, the regulations are highly likely to be found unenforceable as to
    these PPACA-appropriated funds.
    Indeed, the fact that the HHS regulations currently call for abortions to be provided in the
    CHC program in cases when the mother’s life is endangered (42 C.F.R. § 50.304), and in cases
    of rape or incest (42 C.F.R. § 50.306), is an implicit acknowledgment that abortions are generally
    within the range of services that CHCs provide, subject only to such limitations as Congress has
    imposed through the Hyde Amendment. The problem is that PPACA makes an appropriation to
    the CHC program without an accompanying Hyde Amendment, thereby depriving the
    regulations of any statutory basis as applied to the funds that PPACA appropriates for CHCs.
    In sum, the combination of (a) the statutory mandate that CHCs currently have to provide
    comprehensive health services, and (b) the absence of any Hyde limitation on the funds that
    PPACA appropriates for CHCs, means that (c) courts are highly likely to read PPACA to require
    the funding of abortions at CHCs in the absence of a statutory correction.”

  34. Phillip permalink
    May 18, 2010 7:21 am

    Also given that the experts at Planned Parenthood have announced that thy will challange the restrictions on abortion by private payers and believe that they have the legal standing to do so, the whole argument of this post is potentially to be rendered void. Perhaps as PP seeks by 2014 when the services are to kick in.
    This will of course be helped in the courts by Obama’s two recent pro-abortion Supreme Court nominees.

  35. Kurt permalink
    May 18, 2010 9:54 am

    On the issue of the CHC, the suggestion it may fund abortions is flawed on multiple levels.

    1. The Hyde Amendment is constructed so to apply to newly appropriated funds and unspent funds from previous appropriations. On October 1, 2010, the CHC funds will come under the Hyde Amendment.

    2. It has generally been assumed that funds appropriated outside the regular appropriations process are subject to appropriations restrictions when they are co-mingled with appropriations funds with restrictions such as Hyde. Admittedly, this is an untested theory as Administrations don’t choose to poke Congressional prerogatives in the eyes for just a few months of unrestricted funding.

    3. As far as I am aware, the CHC are yet to get these funds. We are talking about a very narrow window here.

    4. In past legislation, the USCCB and the NRTLC have never objected to off-cycle or supplemental appropriations without the Hyde restrictions. At a minimum, they owe an explanation why this is an issue now and never was in the past.

    5. Any further doubt for this short window should be satisfied by the President’s Executive Order.

    6. The remaining claim by HCR opponents is that despite the good faith of the President and Congress, there will be litigation forcing abortion funding. Again, were this to be the case, litigation would have to be brought and decided, all before the window closes on October 1, 2010.

    7. The litigation claim is based on adverse Court rulings in the 1970s over abortion funding In Medicaid. The certainty the Courts would rule the same undercuts the NRTLC’s claim that they have been successful in changing the composition of the Court with the election of their endorsed candidates for President in 1980, 1984, 1988, 2000 and 2004. These cases in the 1970s never went to the Supreme Court. None were as to CHCs. The litigation would have to be successful on two levels – that a CHC client has the right to have abortion paid for and that the CHC (a private, non-profit organization often with Catholic clergy and laity on its board of directors) is required to change its by-laws or policies to permit abortions.

    8. There is a substantive difference between entitlement programs such as Medicaid, Veterans’ Benefits, Medicare, etc and discretionary spending programs such as CHCs. Entitlement programs have “such funds necessary” to carry out their authorized programs. Discretionary programs have an authorization setting the maximum permissible matters they may spend money on and then a dollar amount appropriation that rarely funds all of the authorized activities. Therefore, given not all authorized activities will be funded, the Executive Branch has broad discretion by Executive Order or other means to manage the program, funding certain activities and not funding other.

  36. Phillip permalink
    May 18, 2010 11:38 am

    Again experts disagree. CHC’s may very well already be providing medical abortions. There is an effort to expand CHC services to include abortion services. And there is possibly (don’t know if it was included in the final bill) an exception for organizations like PP to receive health care funds. Link here:

    http://www.lifenews.com/nat6132.html

    So as I pointed out, no one really knows where this will go over the next four years. But there are reasons for disagreement. Very valid reasons.

  37. Carl permalink
    May 18, 2010 7:07 pm

    Is anyone going to say the obvious? The fact that the law is open to this sort of manipulation actually proves the point that was being made. The fact that the pro-life movement will seek to manipulate the bill for good ends and that the pro-choice movement will seek to manipulate the bill for evil ends doesn’t undermine but PROVES the validity of those (e.g. Cardinal George) who objected to the bill on the grounds that did not contain adequate safeguards to prevent ideological manipulation.

  38. Kurt permalink
    May 19, 2010 9:10 am

    Phillip –

    I find the arguments in the linked article amazingly shallow. For example, the claim “In fact, groups such as the Reproductive Health Access Project and the Abortion Access Project strongly advocate for the inclusion of abortion services in community health centers is about like saying because groups like the Womens Ordination Conference advocate women priests, there is a likihood the Church will soon be ordaining women.

    However, while I am not going to set aside my own analysis on a topic within my own professional field, I am willing to admit those with a contrary analysis may be sincere, even if I cannot agree with them.

    The issue I have is that such courtesy is not returned by some on the other side — probably a minority but a very loud minority. And while I can probably live with even strident attacks from that minority, what I have the most problem with is when it extends to attacks on my Catholic faith and the faith of others, including the women religious, who have the same analysis as I do. That is offensive and I dare say, evil.

    As for Carl, I would say that no bill ever written has perfect safeguards to prevent ideological manipulation. The opponets concurrently complained about the length of the bill and then demanded more explicit detail. They need to come up with a single story line.

    But amazingly, the problems raised here almost exclusively come from the application of the principle of subsidiarity.

  39. Carl permalink
    May 19, 2010 5:33 pm

    Kurt,

    The key word is “adequate.” It would have been very easy to include language that would have taken the question of paying for abortions off the table, but this language was deliberately omitted and pro-life Democrats were given the choice between taking the bone of a flimsy executive order or getting steamrolled by their party.

    The principle of subsidiarity!?! The health care debate from start to finish means that a community of a higher order is interfering in the internal life of a community of a lower order, depriving the latter of its functions. According the principle of subsidiarity, the level of the federal government’s involvement in this matter is absolutely unacceptable.

    But in Obama’s defense, the principle of subsidiarity constitutionally represented by the 10th Amendment has been dead for a very, very long time in the United States. Lincoln (R) stabbed it, Roosevelt (D) shot it, Eisenhower (R) stuck a fork in it, and Johnson (D) stuffed and mounted it on his wall.

    • May 19, 2010 5:54 pm

      Once again, someone fails to understand subsidiarity — the notion that a higher order cannot “interfere in the internal life of a lower order” is not what subsidiarity teaches — if it is, and the Church promotes this, then the Pope has no ability to “interfere in the internal life” of the dioceses of other bishops.

  40. Kurt permalink
    May 19, 2010 8:13 pm

    Carl,

    Hindsight has absolutely convinced me that the abortion question would have never been taken off the table because no matter what was done, there would have been a claim from certain quarters the anti-abortion protections were inadequate. Answer one objection and they would have found a new one. This was a game of “Bring me the broom of the Wicked Witch of the West.”

    The final legislation included better anti-abortion protections than previous (and subsequent) legislation that merited the support of the USCCB and the NRTLC.

    On subsidiarity, I think you grossly misunderstand the concept. The reference to the 10th Amendment betrays that. The legislation did not transfer the function of a lower social organ to a higher. The legislation extended a function (health care) that NO social organ was providing to 32 million Americans. It did so in a way that built on the existing private market structure, expanding an ability of families to have a health care policy of their choice.

  41. Ronald King permalink
    May 20, 2010 1:25 pm

    I propose the catholic church failed those 32 million Americans. I admit to failing them even though I have helped some of them in my work. I have not given enough. The structure and organization of the church is chaotic. It leads to fragmented policies that give no clear organizational direction. The Church has become an individualized movement of fragments each seeking its own special place in the hierarchy of being famous.
    It sickens me.

  42. Carl permalink
    May 20, 2010 6:02 pm

    Kurt and Ronald,

    It’s a half-truth to say no social organ is providing health care to 32 million Americans.

    If a person’s health care expenses are not directly covered by ANY social organ in this country, it’s because 1) he isn’t broke and 2) he’s decided that the cost of paying for coverage outweighs the risk of not having coverage. It’s an easy decision because he’s not the one absorbing the risk. He can go to emergency rooms (which are legally required to take care of him) and rack up debts that (because of the legal system in place) he will repay either only in part or not at all.

    So who ends up absorbing the remaining risk of his decision to not pay for health coverage? It’s not him. It’s not the taxpayer. It’s not the federal government. It’s not any government. It’s hospitals, insurance companies, insurance payers and private payers. Why? Because of how the legal system encourages (almost forces) people to steal medical services.

    The system can be dealt with in 6 ways: 1) extending public coverage; 2) force people to buy insurance; 3) require people to “zero out” and go on public programs; 4) do nothing and let things keep going on as they have; 5) deny health services to those who are too wealthy for medicaid and unwilling to make an upfront payment; 6) amalgamate two or more of these solutions. Please note that all these solutions have advantages and disadvantages. Also note that on the scale of social problems in the world both historically and today, this is a wonderful problem to have. If only Haiti could have such problems!

    I myself personally favor the “zero out” alternative (solution 3), not because I want people to zero out but because I know they will do everything they can to avoid it. They will make stop passing off their risk onto others and make the choices necessary to keep as much wealth as possible. I don’t think all that many people will zero out but, if they do, they will be covered. Being on medicaid sucks – speaking as one who has been on medicaid – but there are worse things in the world. I believe the disadvantages of the other solutions outweigh the disadvantages of this solution.

    Our leaders have decided to go with an amalgamated version of the “force buy” alternative (solution 6 with a heavy emphasis on solution 2). This solution is not terrible. I think it’s definitely better than solutions 1 and 4.

  43. Carl permalink
    May 20, 2010 6:29 pm

    Kurt and Ronald,

    Having given an overview of my position, I will now address specific questions regarding subsidiarity and abortion.

    Kurt, if you are accusing me of misunderstanding the concept of subsidiarity and its relation to the 10th Amendment, why would you proceeded to explain how the legislation will actually work?

    Anyway, I agree that with how you characterise some positive aspects of the legislation (working with market structures, giving some amount of choice to families, etc). When I accuse the legislation of violating the principle of subsidiarity, I am speaking about the mandate to buy insurance. I do not see what places this matter within the competence of the federal goverment. As far as I can see, the only business that the federal government has in regulating health care is in arbitrating between states that disagree about how to deal with people who are crossing state lines to obtain health services. Why should Illinois and New York be forcing solutions on Texas and Ohio or vice versa? The level of regionalism and partisanship (on both sides) that has dominated this debate is absolutely sickening.

    Kurt, do you honestly think that Cardinal George and the USCCB are playing a game of “Bring me the broom of the Wicked Witch of the West”? Do you think he’s lying when he says the legislation “expands federal funding and the role of the federal government in the provision of abortion procedures” (Statement of March 15, 2010)?

  44. Kurt permalink
    May 21, 2010 12:35 pm

    Carl,

    I think the Cardinal is mistaken. I appreciate his kind words affirming the sincerity of Rep. Stupak, Senators Casey and Nelson and others who have a different analysis than the one his advisors have given him (and I appreciate the admission that the USCCB position is based on the advice of these advisors rather than a claim of self-evident truth.)

    I hope the kindness and assumption of good will to Casey, Stupak and others also extends to me. And I feel I owe it to the Cardinal to return it.

    Other voices have not been so kind. And it is to them my comments were directed.

  45. Carl permalink
    May 21, 2010 6:13 pm

    Kurt,

    I don’t think it’s really a matter of one position or the other being “mistaken.” Let me try to explain.

    The Stupak position hinges on Obama’s executive order, which is itself independent of the health care law. This is problematic for two and a half reasons.

    1) Executive orders can be overturned if courts judge that they do not represent interpretations but additions to law.

    Given the current composition of the court and legal precedents for upholding executive orders, I don’t think this will happen. If I had to guess, I’d say that the SCOTUS would uphold the exectutive order by AT LEAST a 5-4 margin, but more likely by a greater margin. I’d guess it would uphold by a margin between 6-3 and 8-1. I think Breyer would support, Ginsburg would oppose, I don’t know enough about Sotomayor or Kagan to venture a guess.

    If the contents of the executive order were included in the law itself, however, it would be upheld by a 9-0 margin.

    2) Executive orders can be withdrawn, reversed or changed at the president’s discretion.

    Given the almost certain fallout that this would entail, I don’t think this will happen. Nevertheless, if the contents of the executive order were contained in the law itself, this wouldn’t even be a possibility.

    3) This is the “half reason.” The executive order depends on its being carried out “as promised” (i.e. without creating tricky loop holes that will enable tax dollars to go to abortions). I consider this almost not worth mentioning because this danger would be inherent in the bill also and such loopholes shouldn’t hold up in court. Nevertheless, the fact that the loophole would be defended in court by the branch that enacted the order would give their case greater credibility than if the contents of the order were contained in the law itself. Therefore it’s worth mentioning.

    I can’t say whether Stupak and company are sincere. I don’t mean this in an overly negative way, but it seems to me that they are playing politics, trying to find a way to satisfy their conflicting allegiances between their party affiliation and their electoral constituencies. If they had held out, they could have forced the president and congress to redraft the bill to include the contents of the executive order.

    It seems to me that Stupak and company are basing their support of the law on the likelihood that the executive order will stand. If the executive order falls, they can claim that they acted in good faith. Cardinal George and company are basing their opposition to the law on the very real possibility that the executive order will fall. If the executive order falls, a new and terrible evil will be unleashed in America.

    It’s not a matter of one side being right or the other wrong, but of “risk tolerance.”

    The sincerity of you, me, Cardinal George or Bart Stupak doesn’t really matter one lick. What matters is the very real risk that this executive order will fall and insurance exchanges will become funnels for using federal tax dollars to fund abortions.

  46. David Nickol permalink
    May 21, 2010 10:09 pm

    If they had held out, they could have forced the president and congress to redraft the bill to include the contents of the executive order.

    Carl,

    This is not how Bart Stupak tells the story. According to Stupak, Pelosi already had the votes to pass the bill. So according to Stupak’s own account, it was a matter of letting the bill pass as it was without any safeguards other than those already in the bill, or getting an executive order to accompany the bill. Pro-lifers may be unhappy about the bill that passed, but surely that bill plus the executive order is better than the bill all by itself, isn’t it?

  47. Kurt permalink
    May 24, 2010 8:41 am

    Carl,

    While I disagree with your political and legal analysis, I should just let it drop as I am happy if we have come to the point where this is a matter of disagreements over political and legal analysis.

    I still do believe that certain elements of the Pro-Life Movement would have found intolerable “risk” in the bill no matter what — even when the bill included language (as it did) that surpased other risk they found tolerable in other legislation.

    As for the abortion restictions in the Exchanges, they are statutory, therefore not dependent on the Executive Order. Regarding the CHCs, where the E.O. provides some additional insurance, I think I have already answered that matter.

  48. Carl permalink
    May 24, 2010 2:05 pm

    David Nickol,

    If that’s what Stupak says, he’s lying. The final votes in the House were 219-212 on the bill itself and 220-211 on the “reconciliation” bill. These measures could not have passed without the Stupak bloc.

    As long as the executive order holds, the bill presents NO THREAT WHATEVER to the pro-life movement. One may oppose the bill on other grounds, but, as long as the executive order remains intact, it is sound as far a the pro-life agenda is concerned. From the pro-life standpoint, EVERYTHING hinges on that executive order. I think that’s just the point Cardinal George and the USCCB are making. They want the contents of the executive order to be part of the law itself.

    But yes, the bill plus the executive order is not simply better – but INFINITELY better – than the bill all by itself.

  49. Carl permalink
    May 24, 2010 3:13 pm

    Kurt,

    I’m not sure what you mean by the “other risk [that elements in the Pro-Life Movement] found tolerable in other legislation.” Obviously, I am not defending “elements in the Pro-Life Movement” but the position expressed by Cardinal George and the USCCB. What’s at stake is not the moral virtues or hypocrisies of the bill’s opponents, but the content of the bill itself.

    In other words, if you are correct, the bill’s opponents might just as well have been wrong in tolerating risk in previously proposed legislation as they are wrong in opposing risk in this legislation. There is no question that there are Republican hacks who will manipulate the pro-life agenda and use it as a cover for their own partisan purposes. If this is what you mean by “certain elements of the pro-life movement,” I’d only object that they aren’t and shouldn’t be called “elements of the pro-life movement.” Their association with the pro-life movement is an expression of political convenience. This is absolutely NOT the case with Cardinal George, the USCCB or myself.

    You say that the abortion restrictions in the exchanges are statutory, but this is false. H.R. 3590 explicitly leaves it to the STATE to permit or prohibit abortion coverage offered through an Exchange: “A State may elect to prohibit abortion coverage in qualified health plans offered through an Exchange” — Sec. 1303. (a), (1).

    The law permits or prohibits DIRECT funding of abortion services “for which the expenditure of Federal funds appropriated for the Department of Health and Human Services is [or is not] permitted, based on the law as in effect as of the date that is 6 months before the beginnng of the plan year involved” — Sec. 1303. (b), (1), (B), i-ii.

  50. Kurt permalink
    May 24, 2010 9:44 pm

    Carl,

    Section 1303 (b) permits abortion funding in the circumstance allowed by the Hyde Amendment (life of the mother, etc.). This preserves the status quo, which the bishops said was acceptable.

    Section 1303 (a) does not address federal funding. It addresses unsubsidized riders private insurance corporation may offer private individuals on the Exchanges. States may prohibit the sale of any policies with these unsubsidized riders. If they allow it, there must be a pro-life option and likely there would be many, if not almost all.

    This is a substanial move in the pro-life direction as far as the ability for consumers to purchases pro-life insurance.

    And today, the USCCB issued a statement promoting another piece of legislation with abortion subsidies

  51. Carl permalink
    May 25, 2010 3:42 pm

    Kurt,

    The Hyde Amendment is not permanent law but a rider that must be annually attached to appropriations bills. If it is not attached, HR 3590 would instantly mandate the federal funding of abortions, unless states have enacted their own laws against it.

    The decision to cover abortion services is deferred to the health care provider and the law expressly forbids discrimination against such providers based on their decision to fund abortions.

    If “My Hypothetical Health Company” decided to cover abortions, there is nothing in this law to prevent it from applying any federal funds that it receives through Exchanges to pay for those abortions. HR 3590 – without EO 13535 – would not prevent it. In other words, the value of Obama’s executive order is to ensure that abortion would be “unsubsidized.”

    The USCCB’s statement is on HR 5111, which “will bring PPACA into line with policies on abortion and conscience rights that have long prevailed in other federal health programs” and “codify in law elements of the President’s executive order.”

    You’ve completely distorted and misrepresented the USCCB’s support of this bill by pointing to the fact that it preserves “abortion subsidies” in cases of rape, incest and life of the mother. Such subsidies must be provided or else the Supreme Court will strike the law down as unconstitutional. To not include these subsidies would mean ensuring that HR 5111 would be struck down by a lower court as unconstitutional. If it made it to the Supreme Court (and the chief justice would not allow it to happen), the unconstitutionality of HR 5111 would be upheld in a 5-4 split decision.

    Therefore, in supporting this bill, the USCCB is not supporting these subsidies (as you dishonestly imply) but merely acknowledging their necessity.

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