A Health Care Challenge to Commonweal and Timothy Jost

With so much water already under the bridge, it seems a risky move to wade into the debate between Commonweal (and its apparent legal advisor, Professor Timothy Jost) and the U.S. Conference of Catholic Bishops (USCCB) at this stage of the debate over the contents of the health care reform law (the Patient Protection and Affordable Care Act or PPACA). On the other hand, it might be the perfect time to step back and survey the prolific exchange. Commonweal’s editors just don’t seem to trust the USCCB’s legal or policy analyses of the PPACA insofar as freedom of conscience or abortion are concerned.

Conversely, Commonweal has extended every benefit of the doubt to the opinions of one professor, Timothy Jost, who not only has no record of cooperation with Catholic moral and policy interests along the consistent ethic of life, but seems to regard Catholic contributions to moral reasoning about law with animosity, comparing Catholic influence to the establishment of an Iranian theocracy. Furthermore, Jost seems to be a strident partisan across the board, a condition best (and hilariously) exemplified in his May 17 editorial for Politico, wherein Jost wrote how “unimaginable” it would be for American voters to want Republicans back in government when, under the Democrats, the “economy has come roaring back.”

Meanwhile, The USCCB’s uniquely nonpartisan voice—even in the midst of some of the nastiest inter-party exchanges in recent history—successfully held together advocacy against killing the unborn with advocacy for expanding health care insurance to all Americans. Yet Commonweal, it seems, would not be satisfied with anything less than a full-throated blessing of whatever the House majority decided to offer pro-life Americans while in the throes of desperate, last-minute negotiations.

Commonweal’s reliance on Jost became more and more troubling as Jost persistently failed to address the arguments contained within the USCCB’s legal analysis and Commonweal failed to hold Jost to account. Instead, Commonweal and Jost have continued to suggest that the USCCB reacted to the PPACA in an alarmist fashion. Yet the law does identifiably weaken protections against federal involvement in abortion, and weaken federal protection for freedom of conscience. Given both the continuing high number of abortions in the U.S. today, and the way in which rights of conscience are increasingly characterized as the enemy of women’s rights (most notably in a 2008 letter from then-Senator Obama to the Secretary of Health and Human Services), why shouldn’t the USCCB protest against problematic portions of the PPACA?

This law will affect every American, every health plan and every health care entity from sea to sea. It will, as Commonweal surely knows, reframe the health care landscape for generations to come. With regard to the importance of the specific dispute about whether abortions might be funded in Community Health Centers (CHCs), for example, a recent article on CHCs in the New England Journal of Medicine reports that 5% of Americans currently rely on CHCs for their health care, a figure that could balloon to 40 million people under the new law. Abortion-rights groups are also aggressively promoting a combination of accounting gimmicks and community activism in order to get CHCs to offer elective abortions. The USCCB’s lawyers and policy analysts are responding proportionally to the size of the threats to conscience and to respect for vulnerable human life.

We must keep in mind that the Senate refused to incorporate existing law—namely the Hyde amendment’s protections against abortion funding and the Weldon amendment’s protections of conscience—into the PPACA. On Dec. 8, 2009, an amendment that would enforce Hyde limits on the PPACA was tabled (in a 45-to-54 vote), and the Senate adopted the “Nelson-Boxer language” instead. Regarding Weldon conscience protection language, Senator Reid decided not to include it in the bill he drafted behind closed doors in late November and December. Rather, different language about abortion funding and conscience was adopted, language accepted by Senators and interest groups robustly supportive of legal abortion. This is not meaningless. Rather, a logical observer would conclude that this series of events renders it highly unlikely that the final language of the PPACA—as Jost and Commonweal claim—does in fact does include protections either similar to or as strong as Hyde- and Weldon- type protections.

Indeed, the naïve hopes of Commonweal and Professor Jost were almost immediately disappointed. During the week of July 12, the state insurance commissioner for Pennsylvania announced that the federal government will be providing 160 million taxpayer dollars to help pay for medical services in the new high-risk insurance program established by §1101 of the PPACA—including virtually unlimited abortion services. The Department of Health and Human Services has already issued a statement denying this, but they have offered no documentation as to why Pennsylvania’s published proposal does not mean what it says. The only sure solution for this morass, and for similar problems likely to arise in the other 49 states, is to amend PPACA with a clear statutory ban incorporating the Hyde amendment policy. Neither Commonweal nor Jost has explained why they don’t simply endorse this clear solution instead of straining to argue—with growing implausibility—that doing nothing achieves the same thing.

We must also remember that executive orders can’t change legislation; they can only enforce and implement what’s already there. Yet this order repeatedly claimed to describe PPACA’s effects. Section one of the order claims that the “Act maintains current Hyde amendment funding restrictions.” Section two says that the Act “specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services … and … imposes strict payment and accounting requirements.” Section three tells us that the “Act establishes a new Community Health Center (CHC) Fund within HHS” and claims that the “Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers.” Again, considering the nature of executive orders, it appears that this one “doth describe too much.” A closer look indicates that indeed it does misstate what is in PPACA, as will be noted below.

I do not mean to claim here that the matter of all of PPACA’s effects regarding federal funding for abortion and freedom of conscience is an open-and-shut case. In order to “read” PPACA, one has to perform a fair amount of legal research. For example, one has to inquire how judges have interpreted laws containing similar, open-ended mandates (e.g. “preventive care,” “health services related to gynecology”). Jost does not engage in this inquiry, he simply writes these concerns off as “irrelevant.” In order to determine whether the limitations of the Hyde and Weldon amendments apply to the PPACA, one must not only scrutinize the PPACA language on its face, one must also look at the Hyde and Weldon amendments in their original settings. But Jost shirks this legal task as well.

The USCCB’s publicly available memoranda regularly demonstrated the appropriate amount of legal analysis and a healthy dose of “legal modesty” even after deploying facially compelling legal arguments. In its formal “Legal Analysis” (March 25, 2010) it uses language like “courts are highly likely to conclude,” that certain regulations are “highly likely to be found unenforceable,” and that the President’s Executive Order “would almost certainly be struck down as exceeding [his] authority.” Jost’s analysis, however, not only fails to respond to the USCCB’s major points, but also tends toward the unequivocal: In an NPR interview, after a question about whether Hyde-style protections were absent from various sections of the PPACA, he responded: “Well, that’s just simply not true.” He further called the USCCB’s reading of the PPACA the product of an “unwarranted belief that [members of Congress] are proceeding in bad faith,” and called Congressman John Boehner’s statements about PPACA allowing federal funding of abortions the “biggest…lie” told at the health summit.

Jost’s personal website lists 63 media appearances and 15 essays on the subject of health care reform. Yet, despite the volume, and his attempts in several essays to speak directly to the USCCB’s arguments, he never directly answers the following questions:

First, how does Jost get around the plain language of Hyde amendment—that its limits apply only to monies appropriated under “this Act” (the Labor/HHS Appropriations Act) or to monies put in a trust fund funded by “this Act”—and insist rather that the money appropriated by a different act, the PPACA, is also governed by Hyde? The PPACA specifically appropriates its own money (section 10503) for Community Health Centers. Both the PPACA and the President’s executive order state that a “new” fund is being both created and funded by the PPACA (which new fund is not a trust fund funded by the Labor/HHS Appropriations Act). Jost ignores the plain language of the executive order and simply asserts without proof that the funds appropriated for CHCs are “not segregated funds.”

Second, how can Jost state that 1970’s HHS regulations restricting the funding of abortions, which regulations derive their authority from (and explicitly reference) the Hyde statutory language, are also authoritative with respect to the new CHC fund created by the PPACA? He is overlooking basic administrative law. The USCCB simply has the better of the argument on the possibility that the PPACA money appropriated to CHCs—who are legally mandated to provide “health services related to … obstetrics or gynecology,” (see 42 U.S. C 254b)—will, without attached Hyde protections, be steered toward elective abortions.

Third, as a backup argument regarding CHCs, Jost raises the President’s executive order. But the law on separation of powers holds that such orders may not override specific statutory directives. Will Jost ever engage the law on this matter?

Fourth, because he fails to credit basic legal principles on separation of powers and administrative law, Jost also fails to engage the USCCB’s argument that federal court decisions interpreting broadly-worded federal health care mandates have required abortion funding when no specific limits were attached to the mandates. He states in his May 24 Commonweal piece that these cases “have no relevance,” because there are abortion-limiting federal regulations and an executive order in place. But as I have noted above, the regulation does not likely apply and the executive order is powerless in the face of a contrary statute.

Fifth, Jost can never bring himself to acknowledge that a new line has been crossed by the PPACA’s allowing federal subsidies to flow to health plans covering abortions. True, certain kinds of federal monies cannot pay for an abortion directly, and individual plan subscribers will pay separate premiums for abortion procedures (§1303(b)(2)), but a line has been crossed nevertheless. Pre-PPACA, the federal government would not help plans including abortion to exist and to stay in business. Post-PPACA, it will. This is not a moral line that bothers Jost or Commonweal. But to insist it should bother no one is both arrogant and naïve. It represents an incremental move toward the normalization of abortion as a “medical service.” In a country where abortion is all too frequent, it is yet another step in the wrong direction.

Sixth, regarding conscience protection, Jost never directly addresses the PPACA’s failure to protect against government discrimination based on an unwillingness to participate in abortion. The Senate’s failure to include it—by refusing to incorporate Weldon-type language—does not mean nothing; less protective language leaves religious health care providers, at the very least, in an uncertain position about their futures. Jost’s claim that §1303(c)(2) of the law suffices to prevent such government discrimination makes no sense. That section provides that the PPACA is not intended to overturn conscience protections in other federal laws. It does not apply to this new law. Nor can the President’s executive order pretend to make it so.

Overall, Commonweal and Jost succumbed—naively in my opinion—to their own and to Congressional leadership’s ardent desire to believe that everything will be just fine once the PPACA goes fully into effect. More might be offered regarding the oversights and misinterpretations found in Jost’s analyses. Enough has been said, however, to conclude at least this: the USCCB’s conclusion that the PPACA fell morally short remains measurably more convincing than Commonweal’s and Jost’s conclusion that the bishops were too scrupulous and alarmist in their reading of the PPACA.