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Legal Expert Fact-Checks Latest Claims about Abortion in Senate Health Bill

March 15, 2010, 10:46 am | Posted by Dan Nejfelt

Legal expert Timothy S. Jost of Washington and Lee School of Law, who has more than 30 years healthcare law and policy experience, has released a response to the United States Conference of Catholic Bishops’ latest claims about the abortion provisions in the Senate health care bill. In the analysis, Jost responds to claims made in the USCCB’s “A response to Professor Jost” memo as well as the USCCB’s longer, earlier-released memo comparing the House and Senate bills’ abortion provisions.

The USCCB’s “A response to Professor Jost” memo is posted on the National Right to Life Committee’s website: http://www.nrlc.org/.

Jost writes: “The Senate bill is in fact far more pro-life than the [USCCB] acknowledges, as has now been recognized by the Catholic Health Association and other pro-life organizations, leaders, and theologians. This memorandum addresses issues raised by the Senate bill relevant to the concerns of pro-life Americans, and in particular analyzes the Bishops’ characterization of the Senate bill. It concludes that the Senate bill is essentially as pro-life as the House bill, indeed more so on some issues. Pro-life members of Congress should, therefore, be supportive of the Senate bill.”

Jost’s memo finds (excerpts below, full memo available here):

• 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.

• 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.

• [C]onsumers 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.

• In fact many plans that do not cover abortion will be available through the exchange. No federal law currently requires bakeries to sell bread. But of course they all do. Similarly, markets will assure that there will be many plans available to people who do not want to pay for abortion coverage.

• [T]he 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…Both the House and Senate bills, therefore, offer equal protection of providers and professionals against discrimination or violation of their conscience.

• [T]he Senate bill’s reference to the Hyde amendment and the House bill’s explicit inclusion of it, is a distinction without a difference. By preserving the Hyde Amendment’s restrictions in every respect, the Senate bill also preserves the status quo on abortion.

The memo concludes by explaining why the House must pass the Senate bill and Senate procedures prevent further changes to the abortion provisions: “In sum, if one examines the abortion provisions of the House and Senate bills carefully, in their totality, they are equivalent. Each has its strengths and weaknesses with respect to pro-life concerns. 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.”

Jost’s original analysis comparing the abortion provisions in the House and Senate bills is available here: http://blog.faithinpubliclife.org/Jost%20Analysis%20030510.pdf. The Hill published an op-ed by Jost on Friday: http://thehill.com/opinion/op-ed/86323-abortion-debate-must-not-stop-healthcare-reform.

Catholic Health Association, representing 1200 hospitals and other health providers, released a statement in support of the Senate bill over the weekend. Twenty-five pro-life Catholic and Evangelical leaders released a letter last week affirming that the Senate bill upholds abortion funding restrictions and supports pregnant women.

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