Checking the fact check on health reform

by Mary Ann Walsh

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Three U.S. bishops pose for photo for a Catholic Health Association campaign in Washington in May 2009. Pictured from left are Bishops Nicholas DiMarzio of Brooklyn, N.Y.; David L. Ricken of Green Bay, Wis; and Howard J. Hubbard of Albany, N.Y. (CNS/Nancy Wiechec)


In his recent analysis, “Fact checked: The U.S. bishops on health care reform” (NCR, April 30), Jerry Filteau acknowledges important areas where the U.S. Conference of Catholic Bishops is right about abortion problems in the final legislation. However, he also gets some facts wrong, and presents some arguable predictions or assumptions as though they are facts.

Some things are minor details: While the language of the Hyde amendment did some changing back and forth in its early years, Henry Hyde’s reluctant decision to change it himself to allow funding for rape/incest abortions (a policy lasting to this day) was in 1993, not 1977; the final health care bill passed the House 219 to 212, not 220 to 211; law professor Timothy Jost, whom Filteau calls “a strong pro-life advocate,” criticized the Stupak amendment when it passed the House in November with the strong support of the pro-life community, publicly warning that the Catholic church’s influence on this issue risks making the United States into “another Iran.”

More substantively, Filteau criticizes the bishops in two areas: the legislation’s federal subsidies for health plans covering abortion, and its creation of a new avenue for direct federal funding of abortion.

Cardinal Francis George as the bishops’ conference president has said that the new law provides for one plan in each state exchange that will exclude elective abortions (that is, abortions beyond cases of life endangerment or rape/incest), but that all other plans “can” include these abortions and receive federal tax credits.

Filteau criticizes George for saying that all but one plan must cover abortions, but that’s not what the cardinal actually said. Instead he was pointing to the new law’s tragic reversal of a long-standing pro-life policy: Right now the number of health plans covering elective abortions that may receive federal subsidies is zero; after this law takes full effect that number can go up to “all but one” in each state. Filteau is correct in saying that a state may opt out of the federal policy by passing a new law to prohibit private abortion coverage on its exchange altogether; but the new law does not create such authority in the states, as they always had it. What’s new here is that the federal policy now supports abortion -- and states must follow that policy, unless they can work up the political support to enact the opposite policy.

Filteau predicts that most health insurers will simply choose to exclude abortion from their plans anyway. But the fact is that many (some studies say most) insurers choose to include it, although in doing so they swim directly against the tide created by all federal health programs. They think it’s a great cost-saver, because abortion is so much cheaper for them to cover than childbirth (and enormously cheaper than adding a new dependent for 18 years, now increased by the new law to 26 years, to a family’s health plan). Even when some big insurers sell plans to the 8 million people in the Federal Employees Health Benefits Program, and are required to exclude abortion from those plans (because they are subsidized with federal funds), those insurers still choose to include abortion in their other plans. Now the federal tide will reverse, to subsidize abortion-including plans for the first time. Can we assume that private health plans will now tend to exclude abortion when they didn’t before?

In this regard Filteau points out rightly that the new law will require insurers that cover abortions to collect a separate fee from every single enrollee to help pay for them, without making an accommodation for anyone (sec. 1303 (b)(2)(B)). Then he predicts that many enrollees, alerted to this gratuitous extra fee for something they don’t want, will protest, and the insurers will back down and exclude abortion. But it is hardly a recommendation in favor of the new law to say that it is so bad it may provoke a backlash. Bad laws should be opposed before they pass. And the law itself does everything possible to hide the abortion coverage from enrollees, while still forcing them to pay for it. The law forbids insurers to notify people about abortion being included, except in the fine print where all other benefits are listed; and it demands that the insurer, the state exchange, and the federal government provide information “only with respect to the total amount of the combined payments” for abortion and all other services (Sec. 1303 (b)(3)).

Yes, many people will be forced to choose between their family’s specific health needs and their conscience on abortion -- but this law makes it difficult if not impossible for them to know in a given case that the government is forcing this terrible dilemma on them. This in a reform bill that was supposed to increase transparency, and elevate consumers’ needs over those of the insurance companies.

On the prospect of direct funding of abortion under the new law, for example at Community Health Centers, Filteau replies that the centers haven’t done abortions before and cannot legally do so. However, the new health care law does not follow current law regarding Community Health Centers. The authorizing legislation for these centers, Section 330 of the Public Health Service Act, requires them to provide certain “essential” services such as “family planning” and “gynecology” services.

A long line of federal court decisions has declared that such broad categories must be read as including abortions, unless the legislation states otherwise. That is why Medicaid, which requires provision of “family planning” services, was required by the courts to fund 300,000 abortions a year -- until Congress added the Hyde amendment to the annual Labor/Health and Human Services appropriations bill to prevent this. Community Health Centers, as well, have been funded until now by this Labor/HHS bill and therefore covered by Hyde. Now Congress has passed a health care law that authorizes a new separate Community Health Centers Fund, and directly appropriates billions of dollars for that fund -- bypassing the entire Labor/HHS bill and the Hyde amendment that governs the funds in it. And the new law itself neither references, nor contains, any Hyde-type language covering these funds.

Filteau suggests that the bishops are upset because the Hyde amendment has to be enacted every year and hence does not provide a permanent fix. Certainly permanent is better than temporary. But our central concern here is that these new funds are not covered by Hyde at all, or by any statutory limitation on their use for abortions (temporary or permanent).

We may hope that one day the federal courts will reverse their long line of cases, or will begin reading phrases like “family planning” in the Community Health Centers law differently from the way they have always read them in Medicaid. But we have no legal or factual basis for expecting such a dramatic reversal. Nor have we seen a basis for claiming that President Obama’s new executive order, disclaiming any intent to fund abortions, will trump a statutory mandate as construed by these federal courts. The expectation grounded in the present facts is that the courts will do what they have done before in cases that in relevant aspects are the same.

Filteau rightly says that the “take it or leave it” posture by the Senate regarding its flawed bill placed the bishops (frankly, it placed all who support universal health care and the pro-life message) in an unenviable position. But his statement that the bishops’ reaction was to express “unalterable opposition to the entire health care reform bill” is misleading. Clearly and repeatedly, they said Congress must continue to pursue health care reform, but that this particular version of the bill was so deeply flawed on fundamental issues of life and conscience (as well as on fairness to immigrants) that it should be opposed “unless and until” Congress found a way to fix it. Congress lacked the political will to do this in March, and so the problems must be fixed in the months and years to come.

But if the bishops had declared that the problems are not so serious after all, that would have undermined their principled position and made the future task all but impossible. The bishops were consistent in their position and maintained their moral and intellectual integrity as teachers in the church from the beginning to the end of the process. With the legislation enacted, everyone who agrees there are problems here can join the bishops in seeing this task through to completion, to produce a health care system that truly respects the life, health and conscience of all.

[Mercy Sr. Mary Ann Walsh is director for media relations for the U.S. Conference of Catholic Bishops in Washington.]

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