In a new twin set of pieces in Commonweal, legal scholar Timothy Jost and the magazine’s editors have responded to my Public Discourse essay on abortion and health care. Reasonable people can disagree, but the repeated refusal or inability of Professor Jost and Commonweal to acknowledge the basic facts of the case is enough to arouse suspicion.
In his response to my piece on abortion and health care, Jost claims that pro-lifers have failed to cite relevant judicial decisions. This is a canard. Pro-lifers have cited the pertinent cases chapter and verse—especially in a legal analysis written by the United States Conference of Catholic Bishops. It is hard not to think that Jost is being disingenuous when he demands “[the name of a] single [judicial] opinion that has ordered abortion coverage in the face of a federal administrative regulation and an executive order that interprets a federal statute as prohibiting abortion coverage.”
As Jost surely knows, the category he describes is a null set. Such opinions could not previously exist. Before the Hyde Amendment, there were no such federal administrative regulations or executive orders because there was no statutory abortion-funding restriction on which to base such a regulation or order. After the Hyde Amendment, there were no federal health care mandates that could include elective abortion for the simple reason that Hyde already applied to all of them.
Jost admits that “the Hyde amendment . . . does not specifically cover the funds appropriated for community health centers [CHCs] under §10503 of the Affordable Care Act.” He nevertheless holds that Hyde will restrict the funds in the newly created CHC fund because these will be “mixed together with funds covered by the Hyde Amendment.” But he continues to provide no legal support for this argument—no case law, no relevant statutory text.
Jost seeks to bolster his claims by appealing to the authority of law professor Thomas Berg. In a recent essay for Democrats for Life, Berg looked at the language of §10503 (“The Secretary of Health and Human Services shall transfer amounts in the CHC Fund to accounts within the Department of Health and Human Services”), and concluded that such funds will become subject to Hyde restrictions by becoming part of “existing accounts” already covered by Hyde. Unfortunately, the word ‘existing” nowhere occurs in the passage he cites. While Berg made a more complete attempt to address the relevant questions, his conclusion also flies in the face of the plain language of the Hyde amendment, which states that it applies only to funds “appropriated in” the Labor/HHS appropriations law, or to “funds in any trust fund to which funds are appropriated in this Act.” The new CHC fund is not appropriated by the Labor/HHS law, but by a new law—PPACA. PPACA furthermore does not appropriate funds into any “trust fund” receiving Labor/HHS appropriations, but rather into a new—and separate—CHC fund. Neither Professor Berg nor Professor Jost can get around this plain language.
In yet another red herring, Jost invokes the Chevron principle of administrative law, which holds that courts will defer to the reasonable interpretation of a law by a federal administrative agency unless the law is unambiguous. Yet his legal argument has two fatal problems.
First, the CHC law unambiguously requires that CHCs fund “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). Past court cases cited by the USCCB have interpreted similar categories in Medicaid law to require the funding of abortion. Neither the statute governing CHCs, nor PPACA’s text appropriating new money to CHCs contains a Hyde-type amendment limiting funding for abortions. In light of the unambiguous wording of the law, therefore, a federal administrative agency interpreting either law contrary to the statutory language would not win Chevron deference. Neither the Secretary of Health and Human Services (HHS) nor the President can overcome legal barriers created by the clear language of a statute. Good will is no remedy for bad law.
Second, the regulation that does presently restrict abortion funding at CHCs—the regulation that Jost continually relies upon as HHS’ “reasonable interpretation of a law”— is not a regulation interpreting the PPACA or the law governing CHCs. It is a regulation interpreting the annual Hyde amendment, a law which, by Jost’s own admission, “does not specifically cover” the PPACA’s appropriations to CHCs.
For both reasons, a Chevron argument cannot accomplish the task Jost assigns it. It cannot assuage the well founded fears of pro-lifers that new appropriations for Community Health Centers—which, by their statutory terms, must provide categories of services that are consistently interpreted to include abortion—are statutorily available for elective abortions.
Earlier this month, defenders of the new health care law crowed when HHS told Pennsylvania, New Mexico, and Maryland that high-risk insurance pools could not be used to pay for elective abortions. But this series of events only confirmed the USCCB’s legal analysis. It was precisely because the high-risk insurance pools were not governed by Hyde language that states assumed that their federal grants could cover elective abortions. This is exactly the conclusion that pro-life groups predicted states would reach when confronted with broadly worded federal health care mandates without Hyde restrictions. It is also the conclusion reached by the Congressional Research Service in a June 23, 2010 memo to the Senate Committee on Health, Education, Labor and Pensions. They found that neither the PPACA, nor the Hyde Amendment, nor the President’s executive order, nor any other law, forbade high-risk insurance pool funds from funding elective abortions.
Pro-choice politicians and abortion providers have reached the same conclusion. The president of the nation’s largest abortion provider, Planned Parenthood, said last week: “This decision [by HHS to restrict abortion funding] has no basis in the law and flies in the face of the intent of the high-risk pools . . .” Planned Parenthood sent an email to its supporters about the HHS directive stating that “No law passed by Congress forced this decision.” Congresswoman Louise Slaughter sent a letter to HHS on behalf of the Pro-Choice Caucus decrying the federal government’s “narrow[ing]” of the scope of “legal reproductive health care services” available to women. In short, when the plain language of a law mandates coverage of broad categories of medical needs, extant law makes clear that abortion is almost certainly included unless it is specifically excluded.
The fatal blow to Jost’s argument comes from the fact that HHS was able to restrain federal funding for abortion in this specific case only because §1101 contained explicit language allowing it do so (or indeed to set any other requirement it wishes). Crucially, this language does not have broad application across PPACA and is not contained in PPACA’s language about Community Health Centers. Section 1101, as Jost correctly notes, allows the Secretary of HHS to require high-risk pool grants to meet “any other requirements determined appropriate by the Secretary.” Due to this language, there is an argument that the federal regulators are empowered to direct states to exclude elective abortions from these plans for high-risk enrollees—although it is worth noting that the Secretary did so only after a public outcry by pro-life groups.
The Secretary’s response is welcome, and one hopes it will hold up if challenged in court. However, it needs to be stressed that Jost does not grapple with the distinction between the explicit grant of administrative power to the Secretary in §1101 and the absence of similar power in the PPACA’s sections dealing with CHCs. It is also worth noting that the USCCB did not point to the high-risk insurance pools section of PPACA pre-passage, as a prime example of the law’s potential for unfettered abortion funding. CHCs, with their statutory mandates for “family planning” and “gynecology” services are not subject to Secretarial “requirements determined appropriate,” but high-risk insurance pools are. The plain language of PPACA thus supports the power of the President via his executive order to instruct the Secretary to limit abortion funding in high-risk pools (or of the Secretary to limit such funding of her own authority). There is no similar statutory language to support presidential authority in the case of CHCs (or for that matter, more broadly across PPACA).
Jost must ultimately confront the fact that under PPACA, there is a new status quo respecting direct federal subsidizing of insurance plans that cover abortion. There are already federal tax breaks for insurance plans containing abortion, but PPACA takes us further down the road of federal support for and involvement with elective abortions. Why shouldn’t pro-life people protest when there is a move from the status quo on this matter to something worse?
There is also, sadly, a new status quo on conscience protection. The Senate had the opportunity to apply longstanding conscience protections of the Weldon Amendment to PPACA, but refused to do so. The President’s executive order indicates that he was willing to apply Weldon to the PPACA, but separation of powers means that the President cannot unilaterally insert it into the PPACA in the face of the Senate’s rejection. About this problem, Jost replies only that “many provisions of the Act were not well drafted.” Now that PPACA is passed, then, one would expect Jost and Commonweal to be on the front lines of the effort to get this and other problems resolved fully via the recently introduced Protect Life Act (H.R. 5111). Yet their full-throated support is not yet evident.
Jost finally faults me and the USCCB for writing a “brief that could be used by an abortionist claiming that community health centers must cover abortions.” Yet any person experienced with legislation affecting abortion or conscience protection knows that that is exactly what the wise pro-life lawyer or lobbyist must do while a law is being drafted. Abortion supporters most certainly had a hand in crafting the PPACA. I often dealt with some of the best pro-abortion attorneys during my years working directly in the pro-life movement, and I know from experience that they are adept at the practice of using legislative language in order to forward the practice and funding of abortion. Indeed, they have already started to coach Community Health Centers on ways to provide elective abortions No one should fool himself into thinking that I am making arguments that are not already known to our opponents in this debate.
Pursuing these questions is, far from being cynical, a necessary part of a robust search for truth. Furthermore, Jost and Commonweal have turned a blind eye to facts known by every experienced legal and policy analyst in the pro-life movement—e.g. the pro-choice commitments of so many of the political actors managing the health care bill, and the significance of the Senate’s refusal to adopt Hyde or Weldon language across the PPACA.
All that pro-life groups said—and all that I affirm after looking at the legal back-and-forth—is that between the plain language of the new health care law, its accompanying executive order, the legal precedents relevant to each, Congress’ rejection of proposed fixes, and the political processes leading to the enactment of the PPACA, pro-life citizens and legal experts were right to express grave concern over the final passage of this bill. They had more than reasonable cause to believe that it would move the United States toward a greater acceptance of abortion and the violation of moral conscience.
Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute, where she serves as chair of the Task Force on Conscience Protection.