[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
 H.R. ___, A BILL TO AMEND THE PATIENT PROTECTION AND AFFORDABLE CARE 
 ACT TO MODIFY SPECIAL RULES RELATING TO COVERAGE OF ABORTION SERVICES 
                             UNDER SUCH ACT

=======================================================================

                                HEARING

                               BEFORE THE

                         SUBCOMMITTEE ON HEALTH

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            FEBRUARY 9, 2011

                               __________

                            Serial No. 112-3


      Printed for the use of the Committee on Energy and Commerce

                        energycommerce.house.gov


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                    COMMITTEE ON ENERGY AND COMMERCE

       FRED UPTON, Michigan          HENRY A. WAXMAN, California
              Chairman                 Ranking Member
JOE BARTON, Texas                    JOHN D. DINGELL, Michigan
  Chairman Emeritus                  EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida               EDOLPHUS TOWNS, New York
ED WHITFIELD, Kentucky               FRANK PALLONE, Jr., New Jersey
JOHN SHIMKUS, Illinois               BOBBY L. RUSH, Illinois
JOSEPH R. PITTS, Pennsylvania        ANNA G. ESHOO, California
MARY BONO MACK, California           ELIOT L. ENGEL, New York
GREG WALDEN, Oregon                  GENE GREEN, Texas
LEE TERRY, Nebraska                  DIANA DeGETTE, Colorado
MIKE ROGERS, Michigan                LOIS CAPPS, California
SUE WILKINS MYRICK, North Carolina   MICHAEL F. DOYLE, Pennsylvania
  Vice Chair                         JANICE D. SCHAKOWSKY, Illinois
JOHN SULLIVAN, Oklahoma              CHARLES A. GONZALEZ, Texas
TIM MURPHY, Pennsylvania             JAY INSLEE, Washington
MICHAEL C. BURGESS, Texas            TAMMY BALDWIN, Wisconsin
MARSHA BLACKBURN, Tennessee          MIKE ROSS, Arkansas
BRIAN P. BILBRAY, California         ANTHONY D. WEINER, New York
CHARLES F. BASS, New Hampshire       JIM MATHESON, Utah
PHIL GINGREY, Georgia                G.K. BUTTERFIELD, North Carolina
STEVE SCALISE, Louisiana             JOHN BARROW, Georgia
ROBERT E. LATTA, Ohio                DORIS O. MATSUI, California        
CATHY McMORRIS RODGERS, Washington   
GREGG HARPER, Mississippi            
LEONARD LANCE, New Jersey            
BILL CASSIDY, Louisiana              
BRETT GUTHRIE, Kentucky              
PETE OLSON, Texas                    
DAVID P. McKINLEY, West Virginia     
CORY GARDNER, Colorado               
MIKE POMPEO, Kansas                  
ADAM KINZINGER, Illinois             
H. MORGAN GRIFFITH, Virginia         
                                     

                                  (ii)
                         Subcommittee on Health

                     JOSEPH R. PITTS, Pennsylvania
                                 Chairman
MICHAEL C. BURGESS, Texas            FRANK PALLONE, Jr., New Jersey
  Vice Chairman                        Ranking Member
ED WHITFIELD, Kentucky               JOHN D. DINGELL, Michigan
JOHN SHIMKUS, Illinois               EDOLPHUS TOWNS, New York
MIKE ROGERS, Michigan                ELIOT L. ENGEL, New York
SUE WILKINS MYRICK, North Carolina   LOIS CAPPS, California
TIM MURPHY, Pennsylvania             JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee          CHARLES A. GONZALEZ, Texas
PHIL GINGREY, Georgia                TAMMY BALDWIN, Wisconsin
ROBERT E. LATTA, Ohio                MIKE ROSS, Arkansas
CATHY McMORRIS RODGERS, Washington   ANTHONY D. WEINER, New York
LEONARD LANCE, New Jersey            HENRY A. WAXMAN, California
BILL CASSIDY, Louisiana
BRETT GUTHRIE, Kentucky
JOE BARTON, Texas
FRED UPTON, Michigan (ex officio)
  
                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Joseph R. Pitts, a Representative in Congress from the 
  Commonwealth of Pennsylvania, opening statement................     1
    Prepared statement...........................................     3
Hon. Lois Capps, a Representative in Congress from the State of 
  California, prepared statement.................................     5
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, prepared statement...................................     7
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, opening statement...............................     9
Hon. Joe Barton, a Representative in Congress from the State of 
  Texas, prepared statement......................................   116
Hon. Marsha Blackburn, a Representative in Congress from the 
  State of Tennessee, prepared statement.........................   117
Hon. John D. Dingell, a Representative in Congress from the State 
  of Michigan, prepared statement................................   118
Hon. Edolphus Towns, a Representative in Congress from the State 
  of New York, prepared statement................................   119

                               Witnesses

Helen M. Alvare, Associate Professor of Law, George Mason 
  University School of Law.......................................    11
    Prepared statement...........................................    13
Sara Rosenbaum, J.D., Hirsh Professor and Chair, Department of 
  Health Policy, School of Public Health and Health Services, The 
  George Washington University...................................    24
    Prepared statement...........................................    26
Douglas Johnson, Legislative Director, National Right to Life 
  Committee......................................................    33
    Prepared statement...........................................    35

                           Submitted Material

Letter of February 8, 2011, from National Health Law Program to 
  Members of the Subcommittee, submitted by Ms. Schakowsky.......   120
Statement of NARAL, Pro-Choice America Foundation, submitted by 
  Mrs. Capps.....................................................   123
Letter of February 9, 2011, from National Asian Pacific American 
  American Women's Forum to Members of the Subcommittee, 
  submitted by Mr. Engel.........................................   130
.................................................................


H.R. ------, A BILL TO AMEND THE PATIENT PROTECTION AND AFFORDABLE CARE 
 ACT TO MODIFY SPECIAL RULES RELATING TO COVERAGE OF ABORTION SERVICES 
                             UNDER SUCH ACT

                              ----------                              


                      WEDNESDAY, FEBRUARY 9, 2011

                  House of Representatives,
                            Subcommittee on Health,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 1:06 p.m., in 
room 2322 of the Rayburn House Office Building, Hon. Joseph R. 
Pitts (chairman of the subcommittee) presiding.
    Members present: Representatives Pitts, Burgess, Shimkus, 
Myrick, Murphy, Blackburn, Gingrey, Latta, McMorris Rodgers, 
Lance, Cassidy, Guthrie, Upton, Pallone, Dingell, Towns, Engel, 
Capps, Schakowsky, Gonzalez, Baldwin, Weiner, and Waxman (ex 
officio).
    Also present: Representative DeGette.
    Staff present: Gary Andres, Staff Director; Jim Barnette, 
General Counsel; Michael Beckerman, Deputy Staff Director; 
Alison Busbee, Legislative Clerk; Howard Cohen, Chief Health 
Counsel; Marty Dannenfelser, Senior Advisor, Health Policy & 
Coalitions; Julie Goon, Health Policy Advisor; Peter Kielty, 
Senior Legislative Analyst; Ryan Long, Chief Counsel, Health; 
Jeff Mortier, Professional Staff Member; Katie Novaria, 
Legislative Clerk; Heidi Stirrup; Lyn Walker, Coordinator, 
Admin/Human Resources; Karen Nelson, Deputy Democratic Staff 
Director for Health; Ruth Katz, Chief Public Health Counsel; 
Steve Cha, MD, Professional Staff; Phil Barnette, Democratic 
Staff Director; Karen Lightfoot, Communications Director; Alli 
Corr, Special Assistant for Health; and Mitch Smiley, Associate 
Clerk.
    Mr. Pitts. The subcommittee will come to order. The chair 
will recognize himself for an opening statement.

  OPENING STATEMENT OF HON. JOSEPH PITTS, A REPRESENTATIVE IN 
         CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA

    Mr. Pitts. First, I would like to thank my colleagues on 
both sides of the aisle for being here today for what promises 
to be a very interesting hearing. The new Republican Majority 
has stated its commitment to an open and fair legislative 
process, and that will be reflected in this subcommittee. I ask 
all of my colleagues and our audience to treat each other and 
our witnesses with civility and respect. This hearing is an 
important part of the legislative process and we will conduct 
it accordingly. I would also like to acknowledge my friend, the 
Ranking Member, Mr. Pallone of New Jersey. Pennsylvania and New 
Jersey are as close together as the Phillies and the Yankees 
are far apart. This Phillies fan intends to work as closely as 
possible with Mr. Pallone, the Yankees notwithstanding.
    I believe there are a great many things we can work on 
together for the good of this country, and I look forward to 
cooperating with you this year. When we disagree I hope we will 
always do so with dignity and respect, treating those who may 
disagree with dignity and respect. And I promise to do that on 
my part.
    Pursuant to committee rules, I intend to make an opening 
statement of not more than 5 minutes and will then recognize 
the ranking member, Mr. Pallone, for an opening statement. The 
chairman of the Committee, Mr. Upton, will then have a chance 
to give an opening statement followed finally by the ranking 
member of the Committee, Mr. Waxman.
    Today we will hear testimony from one panel of three 
witnesses, two invited by the majority, and one invited by the 
minority. All sides of the debate will be heard today and every 
member will have a chance to question each of the witnesses.
    The testimony we will hear today regards the prohibition of 
taxpayer funding of abortion and abortion coverage. For decades 
there has been a clear prohibition against the use of federal 
dollars to pay for abortion. The Patient Protection and 
Affordable Care Act opened the door, for the first time in 
decades, to government financing of abortion. My colleagues 
will recall that the House acted affirmatively to fix this in a 
strongly bipartisan vote of 240 to 194 to 1. We are all aware 
that abortion itself can be a controversial subject. What is 
far less controversial is the question of whether the taxpayers 
should be financing it. The so-called Stupak-Pitts amendment 
last session affirmed the view of 60 to 70 percent of Americans 
that government taxpayer money should not be involved in 
abortion. Unfortunately, the Senate did not see fit to include 
the House prohibition in its version of the bill and it was the 
Senate Bill that became law.
    We need to be clear about some things as we start. The 
government does not finance abortions and has not done so for 
decades thanks to the Hyde amendment. Moreover, the government 
has never told any medical professional or medical institution 
that it must perform abortions. This bill seeks to clarify 
these policies and give them permanence.
    The President has on at least two occasions affirmed what 
we are doing her today. In his 2009 speech to a joint session 
of Congress, the President said, and I quote: ``Under our plan 
no federal dollars will be used to fund abortions and federal 
conscience laws will remain in place.'' A year later in his 
Executive order, the President clearly endorsed the principle 
of no government funds going to abortion and again, clearly 
endorsed the principle of not forcing health care professions 
to act against the dictates of conscience. But an Executive 
order is not law. It can be rescinded at any time by this or 
any future president. It can be overturned by a judge or simply 
ignored.
    If we wish to respect the views of those who do not want 
their money used to finance abortion, if we wish to follow the 
wishes of 60 to 70 percent of Americans who believe the 
government should not pay for the procedure, then Congress 
should send this bill to President in short order. The 
President is clearly on record supporting the principles in the 
bill and when it gets to his desk, I hope he will sign it.
    I think I have how much time--40 seconds. I will yield the 
remainder of my time to gentleman from Ohio, Mr. Latta.
    [The prepared statement of Mr. Pitts follows:]

               Prepared Statement of Hon. Joseph R. Pitts

    The Chair will recognize himself for an opening 
statement.I'd like to thank my colleagues-on both sides of the 
aisle-for being here today for what promises to be a very 
interesting hearing.
    The new Republican Majority has stated its commitment to an 
open and fair legislative process, and that will be reflected 
in this subcommittee. I ask all of my colleagues and our 
audience to treat each other and our witnesses with civility 
and respect. This hearing is an important part of the 
legislative process and we will conduct it accordingly.
    I'd also like to acknowledge my friend, the Ranking Member, 
Mr. Pallone of New Jersey. Pennsylvania and New Jersey are as 
close together as the Phillies and the Yankees are far apart. 
This Phillies fan intends to work as closely as possible with 
Mr. Pallone, the Yankees notwithstanding.
    I believe there are a great many things we can work on 
together for the good of this country. I look forward to 
cooperating with you this year.
    When we disagree, I hope we will always do so without being 
disagreeable. I promise to do my part.
    Pursuant to committee rules, I intend to make an opening 
statement-of not more than five minutes-and will then recognize 
the Ranking Member, Mr. Pallone, for an opening statement. The 
Chairman of the Committee, Mr. Upton, will then have a chance 
to give an opening statement-followed, finally, by the Ranking 
Member of the Committee, Mr. Waxman.
    Today, we will hear testimony from one panel of three 
witnesses-two invited by the majority and one invited by the 
minority. All sides of the debate will be heard today and every 
Member will have a chance to question each of the witnesses.
    The testimony we will hear today regards the prohibition of 
taxpayer funding of abortion and abortion coverage. For 
decades, there has been a clear prohibition against the use of 
federal dollars to pay for abortion. The Patient Protection and 
Affordable Care Act opened the door, for the first time in 
decades, to government financing of abortion.
    My colleagues will recall that the House acted 
affirmatively to fix this, in a strongly bipartisan vote of 240 
to 194.
    We are all aware that abortion itself can be a 
controversial subject. What is far less controversial is the 
question of whether the taxpayers should be financing it. The 
Stupak-Pitts Amendment affirmed the view of 60 to 70 percent of 
Americans that government taxpayer money should not be involved 
in abortion.
    Unfortunately, the Senate did not see fit to include the 
House's prohibition in its version of the bill, and it was the 
Senate bill that became law.
    We need to be clear about some things as we start. The 
government does not finance abortions and has not done so for 
decades - thanks to the Hyde amendment. Moreover, the 
government has never told any medical professional or medical 
institution that it must perform abortions.
    This bill seeks to clarify these policies and give them 
permanence.
    The President has on at least two occasions affirmed what 
we are doing here today. In his 2009 speech to a joint session 
of Congress, the president said, and I quote: ``under our plan, 
no federal dollars will be used to fund abortions, and federal 
conscience laws will remain in place.''
    A year later, in his Executive order, the president clearly 
endorsed the principle of no government funds going to abortion 
and-again-clearly endorsed the principle of not forcing 
healthcare professionals to act against the dictates of 
conscience.
    But an executive order is not law. It can be rescinded at 
any time by this or any future president. It can be overturned 
by a judge, or simply ignored.
    If we wish to respect the views of those who don't want 
their money used to finance abortion, if we wish to follow the 
wishes of the 60 to 70 percent of Americans who believe the 
government should not pay for the procedure-then Congress 
should send this bill to the President in short order.
    The President is clearly on record supporting the 
principles in this bill. When it gets to his desk, I believe he 
will sign it.
    The gentleman from New Jersey, the Ranking Member, Mr. 
Pallone, is now recognized for five minutes for an opening 
statement.
    The Chairman of the full committee, Mr. Upton, is now 
recognized for an opening statement.
    The Ranking Member, Mr. Waxman, is now recognized for an 
opening statement.

    Mr. Latta. I thank you, chairman, for yielding and for 
holding this very important hearing on the Protect Life Act. 
And as the chairman designated in his opening remark stating 
that the majority of Americans are opposed to the Federal 
Government funding abortion. And the question, of course, came 
up during the bill, the ``Obamacare'' legislation as to the use 
of federal taxpayer dollars to allow that coverage and also for 
the Stupak-Pitts amendment that was first supported, and then 
unfortunately we did not have, and then, of course, the 
Executive order.
    So I would just like to say, Mr. Chairman, that we have to 
be vigilant in our defense of human life and work past the 
Protect Life Act so that the government funding is not used to 
pay for abortions through the Federal Government. The Anti-life 
policies cannot be tolerated and it is because it is absolutely 
morally wrong and opposed by again as I said the majority of 
tax payers. The passage of the Protect Life is the first step 
towards putting an end once and for all for all taxpayer 
funding of abortion as well as fixing a deeply flawed health 
care bill. And I look forward to the hearing and when the bill 
becomes law. I yield back.
    Mr. Pitts. The gentleman's time has expired. The gentleman 
from New Jersey, the Ranking Member Mr. Pallone is now 
recognized for 5 minutes for an opening statement.
    Mr. Pallone. Thank you, Chairman Pitts. I look forward to 
working alongside you as well and the subcommittee and it is my 
hope that we can meet some common ground during this Congress. 
And I appreciate the comments you made in that regard. I just 
wanted to say briefly I remember the time when you--I told you 
I was going to the University of Pennsylvania farm in your 
district and I had a grand old time there with the pigs and the 
cows and all the other farm animals. And you still represent a 
good part of Lancaster County----
    Mr. Pitts. All of Lancaster.
    Mr. Pallone [continuing]. Which is a wonderful, peaceful, 
quiet place--the Amish, and it is just a nice place, so let us 
work together. I definitely think we can.
    Regardless of any one person's views, though, on the topic 
today, I want to stress the current law is clear. No government 
funding can be used for abortion under the Affordable Care Act 
except in cases of rape, incest, and to save the life of the 
woman. And today is not about public funding in my opinion. 
Today is an attempt by my colleagues on the other side of the 
aisle to reopen the contentious issue of abortion and dismantle 
the landmark healthcare law. The bill before us in my opinion 
is too extreme. It is a massive overreach from what was 
delicately negotiated during health reform and it extensively 
restricts women's access to reproductive health services and 
life saving care. Its language does more than prevent federal 
funds from going to abortions. It is a step towards eliminating 
a choice that our Supreme Court has deemed legal and remains 
legal to this day. Religious and personal views should not put 
women's lives at risk.
    Under current law, health care providers are obligated to 
provide emergency services, otherwise stabilize a patient, and 
make available the transfer to another facility should they 
take issue with performing abortion procedures. This bill 
eliminates these minimum moral obligations even to save a 
woman's life. The bill in my opinion is not pro-life. It is 
anti-woman. The same members of this committee who voted to 
repeal the Affordable Care Act last month charged that it will 
interfere with the doctor/patient relationship. And I can't 
think of a policy that is more intrusive of a doctor/patient 
relationship than the one before us today.
    I strongly believe women need and are entitled to safe, 
affordable health care options and this bill only serves to 
create health and financial challenges that may be impossible 
to overcome. Now I--whatever time I have left, Mr. Chairman, I 
would like to yield a minute each to Ms. Capps, Ms. Baldwin, 
and Ms. Schakowsky in that order. We will see if we can 
accommodate all three in my time and so start with Ms. Capps.
    Mrs. Capps. Thank you, Mr. Pallone. As you just stated, the 
notion that the Affordable Care Act allows for funding of 
elective abortion is false. So I must ask with national 
unemployment at 9 percent and the potential that we have right 
here in this subcommittee to create and strengthen a critical 
work--health care work force of the jobs there, why are we here 
debating this extreme legislation that would instead take 
reproductive rights away from women. Mr. Chairman, the debate 
today isn't about tax dollars or provider conscience. Instead 
it is about chipping away at the legal rights of women, 
including the right to receive life saving treatment or 
referrals from a hospital emergency room. Not even the Stupak 
Amendment we fought over last year tried to change this.
    It is disappointing that this committee, one that is so 
important to job creation and the economy is wasting our time 
on this extreme legislation. And it is downright appalling that 
we are spending our first hours as a subcommittee in this 
Congress trying to restrict a woman's right. Now, instead--
rights--instead of rehashing the culture wars we should be 
using our time in this subcommittee doing what the American 
people really want us to do, strengthen the economy and create 
jobs. And I yield to my colleague, Ms. Baldwin.
    [The prepared statement of Mrs. Capps follows:]

                 Prepared Statement of Hon. Lois Capps

    Thank you, Mr. Chairman.I am troubled that we are here, 
rehashing the phony debate that the Affordable Care Act will 
become some sort of conduit for abortion payments.
    This is false.
    The non-partisan ``fact-check.org'' website makes it clear: 
the new law does not provide direct federal funding for 
abortion, except in cases of rape or incest, or to save the 
life of the pregnant woman.
    In fact, the new health care reform law goes further.
    It states specifically that federal funds are not to be 
used for coverage of any other kinds of abortions.
    Add to this the existing Hyde Amendment, which has 
continuously been in law since the 1970s.

    And the President's Executive Order specifically 
reaffirming that the provisions in the Hyde Amendment carry 
over to the new health care law.
    So, I must ask, with national unemployment at 9 percent, 
and the potential that we have-right here in this committee-to 
create and strengthen healthcare workforce jobs, why are we 
here debating this extreme legislation that would take 
reproductive rights away from women, again?
    Mr. Chairman, the debate today isn't about tax dollars, 
instead it is about chipping away at the legal rights of women, 
one extreme provisions at a time.
    Perhaps Henry Hyde's own words describe the intent of those 
who support this extreme legislation best:
    He proclaimed: ``I would certainly like to prevent, if I 
could legally, anybody having an abortion, a rich woman, a 
middle class woman, or a poor woman.''
    A careful read of the text shows that this bill does not 
just ``codify Hyde.''
    Instead it goes far beyond:
    Original text of the bill-language signed on to by 173 
anti-choice members of Congress would have limited rape and 
incest provisions to levels never before seen-``no means no'' 
would not have been enough.
    After public outcry, this language has been changed, but 
another, extreme, life-threatening provision has been added.
    Specifically, the bill includes language to exempt 
hospitals from EMTALA requirements to treat or provide 
referrals to women in need of life-saving emergency abortion 
care, even if they will die without it.
    Not even the Stupak amendment we fought over last year 
tried to change this.
    This bill's name is misleading-it does not protect life-
instead it puts women and their families in danger.
    It is not a so-called protection of tax dollars-it is a 
not-so-veiled attempt to roll back the rights of all women by 
infringing on the way they spend their own money and the 
decisions they make for themselves.
    It is disappointing that this Committee, one that is so 
important to job creation and the economy is wasting our time 
here today.
    And it is downright appalling that we are spending our 
first hours as a subcommittee on legislation that is all about 
restricting women's rights.
    Instead of rehashing the culture wars, we should be using 
our time in this subcommittee to do what the American people 
really want-strengthen the economy and create jobs.
    I yield back.

    Ms. Baldwin. Thank you. I share your concern that the very 
first hearing that we are having in this Congress isn't about 
creating jobs or bolstering our economy or helping families get 
health care coverage. Instead the majority has demonstrated 
that its top priority is attacking women's rights. This 
legislation takes away a woman's ability to make their own 
important life decisions about their reproductive health. And 
for--and this bill gives the government and insurance companies 
new power to make these decisions for them. And for that reason 
I think this legislation is extreme. This legislation is an 
unprecedented display of lack of respect for American women and 
for our safety. The bill would cut off millions of women from 
the private care that they have today. It would deny individual 
decision making by giving insurance companies more power and it 
would allow public hospitals to deny life saving care and 
dictate what women can do with their own health care dollars. 
With that I yield time to Jan Schakowsky.
    Ms. Schakowsky. I would like to use that time to ask the 
chairman if I could offer for the record from the Catholic 
Health Association a letter which takes exception with some of 
the provisions--one of the provisions of the bill and also from 
the National Partnership for Women and Families, and the 
National Health Law Program.
    Mr. Pitts. Without objection it will be added to the 
record.
    [The information appears at the conclusion of the hearing.]
    Mr. Pitts. All right, the gentleman's time is expired. 
Thanks. Thank you to those who made statements and now the 
chair would recognize the chairman of the Full Committee, Mr. 
Upton, for 5 minutes or such a time as he may consume.
    Mr. Upton. Thank you, Mr. Chairman. I intend to use 1 
minute and then yield 2 minutes to Dr. Burgess, a minute to the 
vice chair Sue Myrick, and a minute to Cathy McMorris Rodgers. 
So in my minute I want to again thank you, Mr. Chairman. The 
discussion draft before us closely tracks the Stupak-Pitts 
amendment that the house adopted by a strong bipartisan 
majority in the last Congress. This includes the Hyde amendment 
language that has continuously been adopted by Congress since 
1993. Unfortunately the massive health care plan that was 
ultimately enacted by Congress contains numerous loop holes 
that allow federal subsidies to be used to purchase plans that 
pay for abortions.
    This bipartisan legislation today proposed by Chairman 
Pitts amends the health bill to clearly and statutorily prevent 
federal funding for abortion or abortion coverage through 
government exchanges, community health centers, or any other 
program funded or created by the new law. Additionally the bill 
protects the right of the conscience for health care 
professionals and assures that private insurance companies are 
not forced to cover abortion. I ask unanimous consent that my 
full statement be part of the record. I now yield to Dr. 
Burgess.
    [The prepared statement of Mr. Upton follows:]

                 Prepared Statement of Hon. Fred Upton

    Thank you Mr. Chairman, the Discussion Draft before us 
closely tracks the Stupak-Pitts amendment that the House 
adopted by a strong bipartisan majority during the 111th 
Congress. This includes the Hyde amendment language that has 
continuously been adopted by Congress since 1993.
    Unfortunately, the massive health care plan that was 
ultimately enacted by Congress contains numerous loopholes that 
allow federal subsidies to be used to purchase plans that pay 
for abortions. This legislation proposed by Chairman Pitts 
amends the health bill to clearly prevent federal funding for 
abortion or abortion coverage through government exchanges, 
community health centers, or any other program funded or 
created by the new law. Additionally, this bill protects the 
right of conscience for health care professionals and ensures 
that private insurance companies are not forced to cover 
abortion.
    Those of us who support the Hyde amendment are encouraged 
by the fact that its enactment has contributed to a reduction 
in the number of abortions and saved the lives of thousands of 
unborn children. A clear majority of Americans share our view 
that taxpayers' dollars should not be used to pay for elective 
abortions. President Obama, among others, says that he wants to 
make abortion ``rare''. Let's find common ground on this 
legislation by acknowledging that abortion is not health care 
and conscientiously opposed taxpayers should not be forced to 
subsidize abortion.

    Mr. Pitts. Without objection so ordered.
    Mr. Burgess. I thank the gentleman for yielding and just a 
couple of observations as we take up this legislation today. 
The Protect Life Act is not applying anything new. It is not 
applying restrictions. It merely extends the status quo, that 
taxpayer dollars will not be used to subsidize elective 
abortions, and that is it. Similar language has been--is found 
in the Hyde amendment, that was passed in 1976, and has been 
reauthorized in each Congress throughout the appropriations 
process. H.R. 358 is only preserving language that Congress and 
doctors and patients have relied upon for decades. It does not 
change or alter the practice of medicine or the responsibility 
of physicians in any way. Past and present the Congress has 
said we will not pay for elective abortions. That does not 
change in this legislation.
    Now, in my prior life I was a doctor. I am a doctor. I am 
an OB/GYN and I do value the sanctity of human life. I do 
believe that it is a miracle that it can even occur and for us 
to interfere in a harmful way is something that as an OB/GYN I 
think it wrong. But I understand that some people do feel 
differently. I think it is important to codify with this 
language that we are responsible for the judicious use of 
taxpayer dollars. Now as a doctor, I am sworn to aid those in 
need and I reject when people say this legislation would 
prevent doctors from providing care in times of need. Integrity 
and the relationship with patients upholding the oath that we 
all take as physicians are fundamentals. Arguments that people 
will be harmed, let alone left to die at the door, are just 
simply not true. There is a suspension of belief required to 
think that elective abortions versus medically necessary 
procedures are--can in fact be comingled. I see my time is at 
an end. I will yield to the----
    Mr. Upton. Vice Chairman.
    Mr. Burgess [continuing]. Vice Chairman.
    Mr. Upton. Sue Myrick.
    Mrs. Myrick. Thank you, Mr. Chairman. I am pleased to speak 
on behalf of this bill and I believe it represents a necessary 
improvement to the Patient Protection and Affordable Care Act 
that was signed into law last year. Americans broadly agree 
that taxpayer money should not subsidize elective abortions. 
This bill doesn't affect the legality of abortion services for 
American women. It is not a sea change from current policy. In 
fact, it merely carries forth what is already true for federal 
health programs such as the Federal Employee Health Benefit 
Program, Medicaid, SCHIP, and the Indian Health Service. To my 
knowledge there is no evidence that prohibition of coverage for 
elective abortions in these programs has negatively impacted 
women's health. I look forward to the testimony from our 
witnesses and I yield back.
    Mr. Upton. And the chair recognizes Cathy McMorris Rodgers.
    Ms. McMorris Rodgers. Thank you, Mr. Chairman. I, too, want 
to speak in support of the legislation. If we are committed to 
health care reform for everyone including women and children 
then health care protections for children should start at the 
moment their lives begin. We agree to allow children to stay on 
health care plans until age 26. We agree to provide our 
children's coverage for pre-existing conditions, and eliminate 
annual and lifetime caps, but what does it all mean if we are 
not going to protect them at the moment their lives begin? Two 
thirds of women polled during the health care debate 
representing all parties, races, marital statuses objected to 
the Federal Government paying for abortions. I would urge all 
of my colleagues to join in supporting the Protect Life Act and 
I yield back the balance of my time.
    Mr. Pitts. The chair thanks the members for their 
statements. The ranking member of the Full Committee, Mr. 
Waxman is now recognized for 5 minutes for an opening 
statement.

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Waxman. Thank you very much, Mr. Chairman. I think we 
have to put this legislation in the context of this bill and 
other bills that are also moving in other committees on this 
very subject of abortion. Let there be no doubt about it. The 
objective is not to say the taxpayer's funds cannot be used for 
paying for a termination of a pregnancy. The objective of all 
this legislation is to say no woman will be able to buy 
insurance in this country that will cover a necessary medical 
procedure involving the termination of a pregnancy. Even though 
it is legal and it is a medical decision now will be taken over 
by the Congress to be made for the women involved.
    The Affordable Care Act had a very sensitive, delicate 
balance and it was drafted in the Senate by Senator Nelson, 
whose pro-life record speaks for itself. That law prohibits the 
use of federal funds for abortion, keeps state and federal 
abortion related laws in place, it would not allow government 
tax credits to be used to pay for abortion services, but this 
bill goes beyond that. It would provide that there would in 
reality be no insurance policy for anybody buying in an 
exchange for health insurance to get a policy that would cover 
the termination of a pregnancy, even when it is medically 
necessary. This is an assault on women's reproductive health 
and their constitutional rights to choose when to bear 
children. Mr. Chairman, I would like to ask unanimous consent 
that I be able to yield 2 minutes of my time to Ms. DeGette, 
who is not a member of this subcommittee, but a member of the 
Full Committee.
    Mr. Pitts. Without objection.
    Ms. DeGette. Thank you very much, Mr. Chairman. There are 
some days in Congress I feel like I am in Alice in Wonderland 
where everything is upside down and today is certainly one of 
those days. The extreme legislation that we are considering 
today is not just simply saying that there shall be no public 
funds for abortion. That is already the law. That is the Hyde 
amendment. I disagree with the Hyde amendment, but in the 
annual HHS Appropriations Bill every year it says no federal 
funds shall be used for abortion. This was also protected in 
the health care legislation last year.
    Let us be clear about what this extreme bill does. What 
this bill says is first of all it does codify Hyde, which is 
far beyond current law. But secondly, it says that anybody who 
purchases an insurance policy--an employer, or any American, 
male or female who purchases an insurance policy that covers 
all legal reproductive services now cannot have any kind of tax 
relief. So it is not about direct federal funding of abortion. 
We don't have that. We don't have that. What it is about is 
saying these indirect tax credits now will be interpreted as 
federal funding. That is the most vast restriction of a woman's 
right to choose that any of us will ever see in our lifetimes 
and what it would lead to if it became law is that no 
individual in this country or business in this country could 
purchase an insurance policy that covered the full range of 
legal reproductive services unless they suffered essentially a 
tax increase.
    Mr. Waxman. Thank you, Ms. DeGette.
    Ms. DeGette. It is wrong. It is intrusive. And we just need 
to call it what it is. Thank you, Mr. Chairman.
    Mr. Waxman. I yield the rest of my time to Ms. Schakowsky.
    Ms. Schakowsky. Thank you, Mr. Waxman. Republicans ran on 
the promise of smaller government, but in fact it looks as if 
they want to reduce the size of government to make it just 
small enough so that it can fit in our bedrooms. This extreme 
legislation is an unconscionable intrusion into the important, 
and often wrenching, and often devastating life decisions of 
American women and their families. Not a single American 
woman's rights are safe under this extreme bill. Already the 
Hyde amendment unfortunately makes sure that poor women and 
federal employees and military women can't get the full 
benefits under the federal plans. But what this says is that 
women with their own money will be restricted from purchasing 
full reproductive services, including the right to terminate a 
pregnancy. It does raise taxes on businesses and individuals. 
One hundred sixty-three Republicans wanted to change the 
definition of rape. I think that is out of that bill now saying 
it can only be forcible. You have to prove that you were beat 
up I guess. And this can deny emergency care to save a woman's 
life. Let us do what the American people want. Let us create 
jobs. Let us get to the business of the economy and start 
limiting the rights of women in America.
    Mr. Pitts. The chair thanks the members for their 
statements and we will now turn to our witnesses. Each of you 
has prepared statements that will be a part of the record, but 
I ask that you summarize your prepared statements in 5 minutes.
    Our first witness is an Associate Professor of Law at 
George Mason University School of Law, Helen Alvare. Professor 
Alvare received her law degree at Cornell University in 1984 
and a Master's Degree in Systematic Theology from the Catholic 
University of America in 1989. She has practiced law with the 
Philadelphia firm of Stradley Ronan Stevens & Young 
specializing in commercial litigation and free exercise of 
religion matters. She also worked for the National Conference 
of Catholic Bishops drafting amicus briefs on abortion and a 
variety of U.S. Supreme Court cases.
    Next, we will hear from Professor Sara Rosenbaum, a 
Department of Health Policy Chair from George Washington 
University. Professor Rosenbaum received her Jurist Doctorate 
from Boston University Law School and has focused her career on 
health care access for low income, minority, and medically 
underserved populations. She also worked for the White House 
Domestic Policy Council during the Clinton Administration where 
she directed the drafting of the Health Security Act. While 
serving on numerous national organizational boards, she has 
also co-authored a help law textbook ``Law and the American 
Health Care System''.
    Finally, we will hear from Douglas Johnson, Federal 
Legislative Director from the National Right to Life Committee, 
who will offer his testimony. Mr. Johnson has served as the 
Legislative Director of the NRLC since 1981. Over the past 
several years, Mr. Johnson has written extensively on the 
abortion related issues raised by various bills to restructure 
the health care system including the Patient Protect and 
Affordable Care Act. He has also published extensively on other 
right to life issues, including partial birth abortion, fetal 
homicide, and human cloning, as well as on issues relating to 
restrictions on political free speech and critiques of how the 
news media covers some of these issues. So at this point I will 
recognize Ms. Alvare.

  STATEMENTS OF HELEN M. ALVARE, ASSOCIATE PROFESSOR OF LAW, 
 GEORGE MASON UNIVERSITY SCHOOL OF LAW; SARA ROSENBAUM, J.D., 
HIRSH PROFESSOR AND CHAIR, DEPARTMENT OF HEALTH POLICY, SCHOOL 
  OF PUBLIC HEALTH AND HEALTH SERVICES, THE GEORGE WASHINGTON 
UNIVERSITY; AND DOUGLAS JOHNSON, LEGISLATIVE DIRECTOR, NATIONAL 
                    RIGHT TO LIFE COMMITTEE

                  STATEMENT OF HELEN M. ALVARE

    Ms. Alvare. Thank you, Mr. Chairman. Good afternoon and 
thank you for this opportunity. My testimony today will address 
conscience protection in health care under the Protect Life 
Act. Initially I want to say that there is no need for us to 
view the matter of conscience protection as a zero-sum game 
between conscience-driven health care providers and the 
patients they serve particularly the most vulnerable. Opponents 
of conscience protection are portraying the situation this way 
but the opposite is true. It is by protecting conscience and 
elevating respect for life in health care that we are likely as 
a Nation to serve and reflect the values of most Americans 
particularly the vulnerable.
    This can be understood from several angles. First, less 
privileged women are less likely to support abortion or 
abortion funding then their more privileged sisters or than 
men. They are also less likely to abort their nonmarital 
pregnancies than more privileged women. Second, abortion has 
not mainstreamed into American health care even 38 years after 
Roe. It remains, in the words of the New York Times ``at the 
margins of medical practice''. This, I believe, is why 
opponents of conscience want to force the government and 
conscience-driven providers to give them what the market has 
steadfastly refused--dispersed sources for abortions in 
hygienic medical settings.
    Instead, today we have this: 87 percent of counties with no 
abortion provider, a small percentage of doctors willing to 
perform it according to the Guttmacher Institute because of 
stigma issues. Ninety-five percent of abortions delivered in 
clinics and not hospitals or doctor's offices. Just recently 
even an affiliate of Planned Parenthood, our largest abortion 
provider quit the national organization over its insistence 
they provide abortions. Finally, there are the regular reports 
of unhygienic or even horrific conditions at abortion clinics.
    In recent weeks we can't have missed the reports about 
Planned Parenthood employees offering to cooperate with someone 
posing as a sex trafficking ring director of minor girls as 
young as 13. Planned Parenthood has acknowledged it needs 
nationwide retraining. Third, there's an emerging scientific 
and cultural willingness to conclude that abortion is killing 
and not health care for women. Not only is this the word used 
by a majority of our Supreme Court, but abortion providers and 
supporters of abortion rights are using it regularly. More 
broadly, and I think this is new with respect to women's 
flourishing, there is emerging a critical mass of evidence from 
respected scholars and peer review journals that more easily 
available abortion is associated with women's what they are 
calling ``immiseration'', that is, making them miserable not 
their flourishing. Associate, that is, with creating a market 
for sex and mating that demands more uncommitted sexual 
encounters contrary to women's empirically demonstrated 
preferences thereby producing more sexually transmitted 
diseases, more nonmarital pregnancies, more single parenting, 
more abortions, more poverty.
    Women of color, immigrants, and poor women are suffering 
the most from this. If opponents of conscience protection want 
to encourage high quality health care for women, they couldn't 
do better than ally themselves with supporters of conscience. 
These are the kinds of providers and institutions with a thick 
sense of vocation and a record particularly of assisting 
vulnerable women. These are not the providers we want to drive 
out of health care.
    The Protect Life Act will assure that conscience-driven 
providers remain in this marketplace. It adds protections for 
them which reinstate the status quo but were not present in the 
Affordable Health Care Act. It adds protections regarding 
training for abortion and protects health care entities and 
providers against discrimination by governments and federally 
funded institutions--an important oversight. It explicitly 
protects existing state conscience protections from federal 
preemption. The Affordable Care Act also lacks sufficient 
enforcement mechanisms in connection with the limited 
conscience protections it did offer.
    In conclusion, the freedom of religion and moral conscience 
is enshrined in the universal declaration of human rights. Our 
own President Obama has urged ``secularists are wrong when they 
ask believers to leave religion at the door before entering the 
public square.'' Our founders understood that human beings 
require respect for conscience as a condition for living in 
freedom and integrity. Our founders knew and we know and we can 
ever measure it today, the relationship between the flourishing 
of religion and moral conscience and a good society. When it 
comes to abortion, conscience protection in some form has been 
the common ground between all sides of the debate even before 
Roe. Even when abortion was legal before Roe, conscience 
protections were attached to it. Our Supreme Court called them 
in Doe v. Bolton ``appropriate''. So it is contrary today to 
common sense those insisting that health care providers check 
their consciences at the door. This should be recognized for 
the marginal and dangerous opinion that it is. Thank you.
    [The prepared statement of Ms. Alvare follows:]

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    Mr. Pitts. Thank you.
    Please pardon the interruption to the witnesses, but a vote 
has been called on the floor. There are two votes, so the 
committee will stand in recess for votes and reconvene 15 
minutes after the last vote to resume the hearing. Thank you. 
Committee's in recess.
    [Recess.]
    Mr. Pitts. The meeting will come to order. Thank you for 
your patience to the witnesses as the members were called to 
the floor for a vote. We have heard from Professor Alvare. Next 
we will hear from Professor Sarah Rosenbaum. Welcome.

                  STATEMENT OF SARA ROSENBAUM

    Ms. Rosenbaum. Thank you very much Mr. Chairman and members 
of the Committee for providing me with the opportunity to speak 
before you today. The Hyde amendment and existing conscience 
protections both were expressly incorporated into the 
Affordable Care Act through section 1303 in order to ensure the 
preservation of conscience and to protect against public 
funding for abortions. The Protect Life Act would dramatically 
expand the reach of abortion prohibitions beyond the furthest 
limits of the Hyde amendment by incorporating its prohibitions 
direction into the Internal Revenue Code. The bill would 
achieve this result by amending the ACA to bar the use of 
premium tax credits, even though these credits must in many 
cases be repaid from personal income, if earnings increase for 
privately purchased health insurance products, if those 
products cover medically indicated abortions for which federal 
funding is barred, and even if the abortion coverage is paid 
for out of private income. This would be an enormous break from 
the existing provisions of law which allow tax credits to be 
used for products even if those products cover medically 
indicated abortions so long as that component of the product is 
purchased with private funding.
    This change would produce three results. For the first 
time, the IRS would be required to assume major policy making 
and enforcement responsibility where federal abortion policy is 
concerned. Among its responsibilities the agency would be 
obligated to develop implementing policies that define critical 
terms. The IRS would have to define abortion in order to 
separate allowable claims such as claims related to spontaneous 
abortions and miscarriages from prohibited claims for induced 
abortions that fall outside allowable federal legal parameters. 
The IRS would have to define rape. It would have to define 
incest. It would have to define what is ``a physical disorder, 
physical injury, or physical illness'' that would as certified 
by a physician place the female in danger of death. The IRS 
would also need to establish a plan certification system to 
assure front end compliance as well as medical audit procedures 
for measuring corporate compliance.
    Second, health plans could be expected to exit this 
optional coverage market entirely rather than expose themselves 
to IRS standards, audits, disallowances, and exposure for 
potential legal violation. The law would continue to permit but 
of course not require a plan to cover certain distinct types of 
abortions, but the consequences of crossing the line for a plan 
would be potentially so severe, i.e., loss of the right to sell 
qualified products in exchange, that there is really no 
business reason to risk this kind of corporate exposure. This 
is particularly true given the weak market for this kind of a 
product that is a supplemental product in view of the modest 
income of so many people who will be buying their coverage 
through exchanges.
    Women also conceivably could risk loss of coverage of 
abortion of important health care if they abortion supplements 
ironically. A health plan could deny claims that in the plan's 
view fall within what the plan would consider an abortion 
related exclusion as defined by the plan. Clearly such an 
exclusion would apply to treatment of the after affects of a 
medically indicated abortion whose aim is to restore a woman's 
health in childbearing. So, for example, if an abortion 
undertaken for physical health reasons resulted in sepsis, the 
plan would potentially exclude treatment of sepsis and 
aftercare for sepsis because it is related to the abortion.
    Another example would be following up on treatment for 
stroke level blood pressure triggered by a pregnancy that is 
terminated for health endangerment reasons. The plan 
conceivably could deny ongoing treatment because the blood 
pressure was a condition brought on by a pregnancy that ended 
in an excluded abortion. While such a decision may be reversed 
on appeal, critical care could be lost.
    Finally, the conscience clause provisions bear focus. They 
accomplish three goals. First, they explicitly strip legal 
protections from entities that are the subject of 
discrimination because of their willingness to provide lawful 
abortions. Second, the provisions create an expressed private 
right of action for both money damages and injunctive relief 
against State and Federal Governments for ``actual'' or 
``threatened'' violations of the law without definition. Third, 
the nondiscrimination provision raises great uncertainty around 
EMTALA. While uniform enforcement of EMTALA screening, 
stabilization, and medical transfer requirements against 
federally obligated hospitals constitutes anything but 
discrimination, in my view if you are enforcing the law 
uniformly you are not discriminating. The fact is that the 
newly recodified provisions without clarifying language raise 
troubling questions for administrative and judicial 
enforcement. I have the utmost respect for religious healthcare 
institutions, but the literature including articles published 
in the peer review literature demonstrate instances in which 
crucial treatment involving pregnant women was withheld or 
delayed over what is termed conscience. EMTALA is a paramount 
protection unique in all of health law and in my view Congress 
should take no action that begins for any reason the long 
unraveling of its absolute safeguards.
    [The prepared statement of Ms. Rosenbaum follows:] 

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    Mr. Pitts. Chair thanks the gentlelady and now for the 
final witness, Mr. Douglas Johnson.

                  STATEMENT OF DOUGLAS JOHNSON

    Mr. Johnson. Mr. Chairman, before I begin I would just like 
to note that we are not getting any time information. This 
device is not working, so if you could give me some sort of 90 
second warning.
    Mr. Pitts. So sorry--we will correct that.
    Mr. Johnson. I would appreciate it. Chairman Pitts, 
distinguished members of the subcommittee, I am Douglas 
Johnson, Federal Legislative Director for the National Right to 
Life Committee or NRLC. NRLC is the Federation of State Right 
to Life organizations nationwide. NRLC supports the Protect 
Life Act as well as the more comprehensive government wide 
approach incorporated in the No Taxpayer Funding for Abortion 
Act, H.R. 3.
    The Protect Life Act could correct the new abortion 
expanding provisions that became law as part of the so called 
Patient Protection and Affordable Care Act or PPACA. That law 
contains multiple provisions that authorized subsidies for 
abortion as well as provisions that could be employed for 
abortion expanding administrative mandates. Some of these 
objectionable provisions are entirely untouched by any 
limitation on abortion. While others are subject only to 
limitations that are temporary, contingent, and/or riddled with 
loopholes. Federal funding of abortion became an issue soon 
after the U.S. Supreme Court decision Roe v. Wade and by 1976 
the federal Medicaid program was paying for 300,000 elective 
abortions annually. If a woman or girl was Medicaid eligible 
and wanted an abortion then abortion was deemed to be 
``medically necessary'' and was federally reimbursable. 
Unfortunately that pattern was generally replicated in other 
federal health programs.And so beginning in the late 1970's 
Congress applied restrictions to nearly all of them but this 
was done in a piecemeal, patchwork fashion. And many of these 
protections were achieved through limitations amendments to 
annual appropriation bills. This is a disfavored form of 
legislation. For one thing, the limitation amendments expire 
with the term of each appropriation bill which is never more 
than 1 year. Some of the pro-life policies have in fact been 
lost for varying periods of time because of their transient 
nature. For example, because of the actions of the 111th 
Congress and the Obama White House, today congressionally 
appropriated funds may be used for abortion for any reason at 
any point in pregnancy right here in the Nation's capitol. And 
that is being done, as reported in today's Washington's Post.
    We believe that when Congress creates or reauthorizes or 
expends a health insurance program it should write the 
appropriate abortion policy into the law as was done with the 
SCHIP program when it was created in 1997. During the 111th 
Congress we strongly advocated that all programs created or 
modified by the health care bill should be governed by explicit 
permanent language to apply the principles of the Hyde 
amendment to the new programs.
    I wish to underscore here what many have tried to obscure. 
The language of the Hyde amendment prohibits not only direct 
federal funding of abortion, but also funding of plans that 
include abortion. I would refer to my written testimony in 
footnote 10 for the full text of the Hyde amendment and you 
will see that it refers to funds that go to any trust fund from 
which includes coverage of abortion. And this is explicitly 
defined to include the ``package of services covered by a 
managed care provider or organization pursuant to a contract or 
other arrangement.'' Very similar language is found in the 
abortion related provisions that govern other federal health 
programs, for example, SCHIP and the Federal Employee's Health 
Benefits Program. This exact language is in footnote 12 of my 
written testimony.
    I have also submitted to the Committee a 24-page affidavit 
that I executed that explains four of the major components of 
the PPACA that authorized subsidies for elective abortion. Its 
focus is primarily on 1, the pre-existing condition insurance 
program; 2, the federal tax credit subsidies for private health 
plans that cover elective abortion; 3, authorization for 
funding of abortion through community health centers; and 4, 
authorization for inclusion of abortion in health plans 
administered by the federal office of personnel management. And 
Mr. Chairman, it is not an exhaustive list.
    To summarize, in the PPACA there is nothing on the way that 
remotely resembles the Stupak-Pitts amendment. Instead of bill 
wide language to permanently apply the Hyde amendment 
principles we find a hodgepodge of artful exercises and 
misdirection, bookkeeping gimmicks, loopholes, ultra-narrow 
provisions that were designed to be ineffective, and provisions 
that are rigged to expire. We find abortion authorizations that 
are permanent and limitations that expire.
    As to President Obama's Executive order it is a hollow 
political construct. As discussed further in my written 
testimony and in the affidavit, it consists mostly of 
rhetorical red herrings, exercises in misdirection, and was 
characterized by the president of Planned Parenthood as a 
symbolic gesture.
    [The prepared statement of Mr. Johnson follows:]

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    Mr. Pitts. Thank you. Chair thanks the witnesses for their 
statements. Your entire written testimony will be made a part 
of the record and at this time we will go to questioning for 
the members of the committee. Chair recognizes himself for 5 
minutes for questions. First for Professor Alvare. If Catholic 
hospitals were to lose their tax exemptions and have to close 
their doors because they refuse to perform abortions what would 
be the impact on the playing----
    Ms. Alvare. Can't claim to be representative of Catholic 
hospitals. I do know that there is information that you can 
easily access regarding their services in poor areas. Just as 
one example that I brought with me today. One, the third 
largest Catholic hospital system in the United States, its 
statistics alone 19 States, 73 hospitals, 900--excuse me, $590 
million in charity care and a great deal of loss as a result of 
that. Because of the charity care it is nonprofit and they 
regard themselves as having a particular commitment to the 
poor, to free clinics, to education, and research. These 
hospitals have empirically demonstrated that they provide the 
kinds of services to women and the poor in particular that are 
exemplary and are thought to be superior in many ways to other 
kinds of hospital systems.
    Mr. Pitts. Thank you. Mr. Johnson, in your testimony you 
estimated that more than one million Americans are alive today 
because of the Hyde amendment limitations on government funding 
of abortions. What would be the effect of authorizing 
government funding of abortion nationwide as a routine method 
of healthcare?
    Mr. Johnson. Mr. Chairman, this estimate is based on 
studies done by the Guttmacher Institute and other critics of 
the Hyde amendment and they have given figures. The lowest 
figure being the reduction of abortions among Medicaid eligible 
population has been on the order of one in four. There have 
been some estimates as high as one in two, that if one takes 
even the lowest estimate, the 25 percent figure and 
extrapolates that over the life of the Hyde amendment there are 
indeed more than one million Americans alive today because of 
that policy. So we have heard President Obama speak about his 
desire for abortion reduction. We believe the Hyde amendment 
has proven itself to be the greatest domestic abortion 
reduction policy ever enacted by Congress and yet it has been 
characterized by in a 19--rather a 2007 Guttmacher Institute 
monograph as a ``tragic result of the Hyde amendment'' these 
one million births. Mr. Chairman, we think it stands to reason 
that if the Hyde amendment is overturned or effectively 
circumvented by these mechanisms in the PPACA, the effect is 
going to be more abortions, not abortion reduction. We think 
that anyone who thinks that the million plus Americans who walk 
among us today because of the Hyde amendment constitute a 
tragic result should vote against your bill. But those who 
believe otherwise we respectfully submit should vote for it.
    Mr. Pitts. To follow on, Mr. Johnson, given that President 
Obama and the 111th Congress greatly expanded the role of 
government in the private insurance market does it seem 
reasonable that Congress would correspondingly try to extend 
the Hyde amendment and similar measures to prevent taxpayer 
subsidies for elective abortions?
    Mr. Johnson. These principles have been in place with 
respect not only to the Health and Human Services Appropriation 
Bill and Medicaid, but in a great many other programs as well 
including as I mentioned the Federal Employees Health Benefits 
Program which of course covers most members of Congress and 
their staffs, and about eight million others. For most with one 
brief interruption for the last 24 years, the 200 plus private 
plans that participate in that program have been required as a 
condition of participation not to cover any abortions except 
life of the mother, rape, and incest. It is not a bookkeeping 
scheme like you find in PPACA. It doesn't say they can--no, it 
says they can't participate in the program if they cover any 
abortions. And you know, the scenarios that we have heard spun 
out about how it is impossible for insurers to handle this, the 
IRS will never be able to administer it--the experience of the 
Federal Employees Health Benefits Program itself I think 
disproves these sorts of fanciful scenarios.
    Mr. Pitts. In other words under the Federal Employee Health 
Benefits Plan--Program now, you can purchase abortion coverage 
with your own money. Is that correct?
    Mr. Johnson. Within the program itself there is no abortion 
coverage. It is prohibited by the limitation on the Annual 
Appropriation Bill. Insurers are not required to cover any 
abortions to participate in the programs, but they are 
forbidden to cover any other than life of the mother, rape, and 
incest and that has been the case for almost a quarter of a 
century. Now, there is nothing of course to stop any private 
individual from going out and purchasing abortion coverage with 
their own resources on the private market if they choose to do 
so. I suspect from the data we have seen that very few people 
do that.
    Mr. Pitts. Thank you. Chair thanks gentleman, and now 
recognizes the ranking member Mr. Pallone for 5 minutes for 
questioning.
    Mr. Pallone. Thank you. I want to ask each of the panelists 
just a yes or no answer. There is a lot of frustration by 
myself and on the democratic side of the aisle that you know we 
are in the midst of a recession, maybe we are getting out of it 
hopefully, but it is still out there, and that we should be 
spending our time focused on the economy and on jobs. And in 
all honesty just like the Health Care Repeal, I don't see that 
even if this bill passes the House it has any chance of 
garnering 60 votes in the Senate or being approved by the 
President. So I just wanted to ask you, is there anything in 
this legislation that creates jobs? Just a yes or no and then I 
will move on. Start with Mr. Johnson. Yes, or no, does this 
legislation in any way created jobs?
    Mr. Johnson. Mr. Pallone, I have no competence to answer 
that question.
    Mr. Pallone. All right, Ms.----
    Mr. Johnson. I would be----
    Mr. Pallone. Alvare? I will just move on.
    Ms. Alvare. Nor do I. I am here to testify on conscience.
    Mr. Pallone. OK. And Ms. Rosenbaum?
    Ms. Rosenbaum. It doesn't appear to me that it does.
    Mr. Pallone. All right, thank you. Now let me ask--is it 
Alvare? Is that how you pronounce it? Now, I am sorry, this is 
for Dr. Rosenbaum and I am going to come to you if I have time. 
The EMTALA statute prohibits hospitals from dumping a patient 
who is medically unstable. If a patient arrives in a life 
threatening situation the hospital must treat them until her 
life is no longer in danger. The Health Reform Law made clear 
that the conscience protections that were written into law did 
not repeal or amend the basic EMTALA provisions requiring 
hospitals to treat a patient until she is stable. Now the Pitts 
legislation changes that. It says that EMTALA is subject to the 
abortion provisions. So Dr. Rosenbaum, what does that do? Does 
that mean if a pregnant woman's life is in danger and the 
medically indicated response is to terminate the pregnancy to 
save her life that the hospital can refuse her emergency care 
or refuse to transfer her to another facility that would 
perform such a life saving procedure?
    Ms. Rosenbaum. As long as the later amendment, this 
amendment is unclear, the impact of EMTALA, the impact of the 
amendment on EMTALA is similarly immeasurable at this point. To 
the extent that the statute raises questions about whether or 
not EMTALA applies, and also creates a federal right of action 
to seek an injunction against the actual or threatened 
enforcement of a federal law that discriminates against a 
hospital, an administrative agency and a court would face a 
very difficult situation in which they would have to reconcile 
the language of EMTALA which seems to be an obligation on the 
part of hospitals against an express authority now in the 
statute to be able to essentially to be able to essentially 
evade what is an EMTALA obligation which is of course 
stabilization or medically appropriate----
    Mr. Pallone. But my fear is that if this bill were to pass, 
and again, I don't see how that happens, but if it were to 
become law that you could have a situation where the hospital 
can refuse the woman emergency care----
    Ms. Rosenbaum. But what----
    Mr. Pallone [continuing]. Or refuse to transfer her to 
another facility that would perform the--save her life.
    Ms. Rosenbaum. It would appear that way. I mean, this is 
the problem. It is a later amendment that does not clarify how 
it is to be applied in an EMTALA situation. And so a court or 
an administrative agency would be faced with a very difficult 
question and it would seem to imply that the later legislation 
actually alters the EMTALA provision.
    Mr. Pallone. And so that could happen?
    Ms. Rosenbaum. Yes.
    Mr. Pallone. OK. Now let me ask Ms. Alvare. You say that 
the bill before us today would protect individuals and entities 
who are not willing to provide all medical choices to women and 
their families even in life saving situations. Now, this is the 
conscience aspect. Why shouldn't these protections apply 
equally to all beliefs? In other words, why shouldn't we 
protect those who believe that they have a moral obligation to 
provide all medical service choices in this case, one that is 
legal in the country to a woman and families. I mean, I will 
give you an example. My concern is, Catholic hospital, I guess, 
religious hospital that doesn't believe in abortion. You know, 
administrator or doctor, or somebody makes a decision that 
because of the mother's life that they are going to perform the 
abortion and it is contrary to the beliefs of that particular 
religious hospital, and then they fire them or they don't hire 
them because they say that they would perform an abortion in 
that circumstance. So why aren't we protecting that person so 
they can't be fired or they can't be discriminated against? Or 
would you protect them as well?
    Ms. Alvare. One thing is that our law, the Supreme Court 
has said it--whether in the Harris v. McRae or the Webster 
decision, our Supreme Court has said that government can favor 
life over abortion. It can favor bringing children into this 
world versus taking their life.
    Mr. Pallone. But the bottom line is then you wouldn't 
protect that person against that type of discrimination.
    Ms. Alvare. In 38 years of legal abortion there has never 
been a situation, not one, where a woman lost her life because 
she needed an abortion and didn't get one. So the idea that it 
is a medical choice is even contradicted by the evidence, let 
alone by statements by people like Dr. Guttmacher of Guttmacher 
Institute who said he really couldn't imagine a situation in 
which you couldn't deliver the child and protect the mother's 
life without that.
    Mr. Pallone. But it sounds like you wouldn't be in favor of 
passing a law that would do that, that would protect the 
person.
    Ms. Alvare. In 38 years since Roe v. Wade, there has never 
been a conflict. The Catholic Health Association letter that 
was referred to as coming in here today indicated that they had 
never had a conflict in 38 years.
    Mr. Pallone. No, but I am just asking you if you would be 
in favor of that kind of a law.
    Ms. Alvare. You would have to overturn EMTALA then because 
EMTALA itself and I have the provision with me--Section 
1395DD(e) says when faced with pregnant woman and child you 
most ``stabilize the woman and her unborn child''. So I think 
you would have to first of all change what EMTALA says is 
emergency care in order to say we would have to kill to provide 
care. EMTALA says stabilize to provide care.
    Mr. Pallone. I don't think I am going to get an answer so 
we will move on.
    Mr. Pitts. OK. Chair thanks the gentleman and recognizes 
the Vice Chairman of the Subcommittee, Dr. Burgess, for 5 
minutes.
    Mr. Burgess. Thank you, Mr. Chairman. Well, in fact, Mr. 
Pallone, I think you got your answer. EMTALA, if I understood 
the comments correctly actually specifies protection of the 
unborn. Does it not?
    Ms. Alvare. Yes, sir, it does. It is 42 U.S.C. 1395DD 
subsection E, it talks about if you are faced with a pregnant 
woman ``the health of the woman or her unborn child is in 
serious jeopardy you must stabilize them both.''
    Mr. Burgess. Well, it is interesting that you said in 38 
years of law since the Supreme Court ruling in the early 
1970s--I was thinking back and trying to remember the specific 
clinical situation that would have occurred that is being 
referred to here over and over again and in 25 or 28 years of 
medical practice, four of which at Parkland Hospital, a major 
downtown public health facility, it never happened. So I guess 
sometimes we do try to legislate to the most extreme case, but 
we are trying to legislate to a case that no one can identify. 
Ms. Rosenbaum, Dr. Rosenbaum, you have referenced in your 
opening statement that you have cases from--I think you said 
from Catholic hospitals where care was compromised. Do you have 
such a body of case reports that you could supply to the 
committee? I don't necessarily need to hear about them today, 
but I would be very grateful if you would supply those clinical 
situations to the committee so that we might evaluate where 
those situations have occurred. Because apparently in the legal 
literature in 38 years there are not any. My own personal 
experience for almost 30 years there are not any. I just fail 
to see where are we trying to govern with this. And it is well 
established again in EMTALA and in federal statute that the 
life of the mother of course can be protected. So there are 
extreme problems that do occur, big pregnancy, cancer of the 
cervix, required radial therapy, well recognized that is going 
to be deleterious to the pregnancy but you do protect the life 
of the mother. OK. That--a rare occurrence, but it does happen 
and it is taken care of under current law, under PPACA, under 
the Executive order, under all existing conditions today. So 
again, if you have those circumstances I pray that you would 
share them with the committee.
    Ms. Rosenbaum. Certainly. There are both actually peer 
reviewed literature references and the case that arose in 
Arizona last summer involved a near--a woman who was on the 
verge of death and who was in an early stage of pregnancy. I 
would also note that EMTALA actually specifies that the 
obligation to save a life runs independently to the woman and/
or her unborn child. So it is not a matter of only being able 
to save them as a unit. It is a matter of having to save 
whatever life----
    Mr. Burgess. Yes, let me stop you there because in present 
day practice of obstetrics in this country, having to choose 
between the life of one and the life of the other as a 
practical matter that just doesn't come up. It just doesn't. 
There are--yes, there are pregnancies that cannot be saved. We 
all recognize--heartbreaking when they happen. Yes, there are 
situations that the baby has to be delivered so early that it 
may have a tough go and may not survive. We all recognize when 
that happens, but it is just rare. I can't--and again, I am 
trying to think back in my own volume of clinical experience 
which was not insignificant. I cannot remember ever having to 
stand outside the patient's room with the family and say look, 
we got to make a decision here. It is one or the other. Which 
would you have me save? It just simply doesn't happen. And 
nothing that we are doing here today--I think, we may add just 
intellectual discussion, but as a practical matter I don't 
think we are affecting anything at all one way or the other 
again, either in PPACA, Executive order, EMTALA, or any 
existing statute. Let me just ask you, Ms. Alvare one quick 
question. Some opponents of the legislation that is under 
consideration today seem to suggest that by denying taxpayer 
funding of termination of pregnancy that we are denying access 
to a basic form of health care. Is elective termination of 
pregnancy a basic form of health care?
    Ms. Alvare. I think I wish I had an M.D. in addition to my 
J.D. In the legal literature it has been increasingly said and 
the Supreme Court's decision in the Gonzales v. Carhart said it 
most basically. They referred to abortion as killing. The 
improvements in embryological knowledge, genetic knowledge, et 
cetera that lawyers use in order to come to a hearing like this 
and make our case, in order to make State legislation refer 
more and more to characteristics of unborn life that place it 
firmly within the context of being a member of the human 
family.
    Mr. Burgess. And I would just say the 38 years since Roe v. 
Wade the game changer has been the refinement of 
ultrasonography as a clinical tool. What became just something 
in theory in 1971 is very much reality today with the ability 
to look inside and make determinations about the health and 
condition of a baby well before the time of birth. These 
technologies didn't exist at the time of Roe. You talked about 
this procedure has been pushed almost of the periphery of the 
practice of medicine. And I think that is a big reason why. 
Thank you.
    Ms. Alvare. Thank you.
    Mr. Pitts. Chair thanks gentleman. Chair recognizes the 
ranking member Mr. Waxman for 5 minutes.
    Mr. Waxman. Thank you very much, Mr. Chairman. Ms. Alvare 
just to follow up on that line of questioning, abortion is 
sometimes a medically necessary procedure, medical procedure. 
Do you agree with that statement?
    Ms. Alvare. Again, I would like to quote Dr. Guttmacher, 
the founder of the Guttmacher Institute. In 1967 when obstetric 
care was not even as good as it is now who said today it is 
possible for almost any patient to be brought through pregnancy 
alive unless she suffers----
    Mr. Waxman. No, I really--excuse me. I really asked you the 
question. Do you think that it could be a legitimate medical 
procedure?
    Ms. Alvare. I have to rely on the doctors, sir, and looking 
at----
    Mr. Waxman. And what does--the doctor says yes or no?
    Ms. Alvare. He says even if she suffers from a fatal 
illness such as cancer or leukemia, abortion would be unlikely 
to prolong much less save life. I can provide you with 
additional medical literature----
    Mr. Waxman. Well, we do allow abortion under the Hyde 
language to save the life of the mother. Do you acknowledge 
that there could be circumstances where the life of the mother 
would be lost if a termination of a pregnancy didn't take 
place?
    Ms. Alvare. Not having been present when that was 
negotiated, I imagine that that is the kind of thing that in 
politics is said and is not necessarily have referenced to the 
medical literature. But in public debate and at public 
insistence they want the language of life of the mother whether 
it is----
    Mr. Waxman. You would be against abortion under any 
circumstance. Is that an accurate statement?
    Ms. Alvare. I would not--yes, I would not say we could 
knowingly kill human life.
    Mr. Waxman. OK. Well, I respect that point of view. I 
respect the idea of a conscience clause. I would not want you 
if you were a medical person to have to perform an abortion 
even though some people would say it would be appropriate under 
the circumstance. And that is why I support this conscience 
clause idea because a Catholic doctor shouldn't be required to 
perform abortions if that individual feels that way. A Catholic 
hospital shouldn't be required to do it either. The Affordable 
Care Act is very clear on this point and does provide these 
protections for people with a conscience. But let me ask you 
this. If a doctor in good conscience or a nurse felt that they 
were morally required to provide an abortion to a victim of a 
rape who requests it would you respect that as a conscience 
clause protection?
    Ms. Alvare. Again, I prefer what the Supreme Court has said 
on this and I am glad they have, which is that the State can 
prefer life over abortion. And if a doctor feels that he or she 
wants to do that then probably they should steer clear of 
conscience driven health care facilities as a place of 
employment.
    Mr. Waxman. Well, they have a different conscience than 
you.
    Ms. Alvare. They are free to do it elsewhere.
    Mr. Waxman. They have come to a different conclusion than 
you do.
    Ms. Alvare. Yes.
    Mr. Waxman. You want us to protect the conscience of 
someone out of adherence to the Catholic Church not to provide 
abortions. Would you respect the fact that someone with a 
different religious point of view or maybe even a Catholic as 
well who would say I think this would be morally reprehensible 
not to provide a victim of a rape, a rape a service to 
terminate the pregnancy. Now let me ask that to Ms. Rosenbaum 
because----
    Ms. Alvare. Could I respond to one thing?
    Mr. Waxman. Sure.
    Ms. Alvare. I would also--I don't think this is just about 
Catholics. Morally pro-life atheists----
    Mr. Waxman. Well it is not.
    Ms. Alvare [continuing]. I hope would get just as much 
protection.
    Mr. Waxman. You are absolutely right, but people's 
conscience ought to be respected. It ought to be both ways. If 
we are going to say we want to respect the conscience of the 
person who doesn't want to do abortions, I think we have to 
respect the conscience of someone who feels it is morally 
required of them to perform that service. Let me ask you about 
the provision in this bill because it says State laws can allow 
insurance companies to refuse coverage of emergency 
contraception. Well now, let me go back. There is one provision 
in this bill that says State laws can do more than discriminate 
on abortion because they can look at the conscience on other 
issues as well. Originally it had conscience related to 
abortion but struck the abortion. It said whenever there is a 
conscience issue that conscience issue ought to be respected. I 
would like to know whether this can be read to say that State 
laws can allow insurance companies to refuse coverage of family 
planning and contraception because it offends the company's 
conscience.
    Ms. Alvare. Excuse me, sir, could you tell me which 
provision that is because I came with the Protect Life Act.
    Mr. Waxman. Section 1303 of the Affordable Care Act dealt 
exclusively with treatment of abortion. And then this bill 
strike regarding abortion out. Ms. Rosenbaum, do you know--are 
you familiar with the provision?
    Ms. Alvare. I do know what you are talking about now.
    Mr. Waxman. OK. Well I----
    Ms. Alvare. I am sorry, would you like me to answer that?
    Mr. Waxman. I would like an answer, yes or no answer, 
because it seems to me they would be allowed--an insurance 
company would be allowed to say that you can't have family 
planning or contraception.
    Ms. Alvare. That might----
    Mr. Waxman. It seems to me the State law can also allow 
insurance companies to refuse coverage of emergency 
contraception like a morning after pill. It seems to me this 
can be read to say that State laws could allow insurance 
companies or doctors who refuse treatment of people with AIDS 
because homosexuality or drug use offends their conscience. Or 
that we can allow insurance companies to refuse infertility 
services because it offends the company's conscience. Or not to 
pay for therapies that are derived from stem cell research 
because it offends their conscience. Ms. Rosenbaum, am I 
correct in reading that change as allowing those state laws?
    Ms. Rosenbaum. I agree the wording is altered to eliminate 
the reference to abortion.
    Mr. Waxman. Yes. I find that troubling. Thank you, Mr. 
Chairman.
    Mr. Pitts. Thanks to the gentleman. Chair recognizes the 
gentlelady from Tennessee, Ms. Blackburn for 5 minutes.
    Mrs. Blackburn. Thank you, Mr. Chairman. Ms. Rosenbaum, I 
wanted to--there you are. Now I can see you. OK. Catholic 
hospitals since we were just looking at that. Should they be 
required to perform all the abortions that you would deem as 
medically necessary? Because it seems like we are debating and 
discussing medically necessary and you all continue to go to 
that provision. So do you think Catholic hospitals should be 
required to perform abortions that you yourself would deem as 
medically necessary?
    Ms. Rosenbaum. I think obviously there is a wide range of 
opinion on how the term medically necessary is used. I don't 
think--I am actually a very strong believer in a conscience 
clause and would just clarify that EMTALA itself certainly does 
not obligate a hospital to provide medically necessary 
abortions, however we define the term.
    Mrs. Blackburn. OK. Let us talk then about medical 
students. Medical students that are opposed to abortion, should 
they be required to receive training in how to perform 
abortions?
    Ms. Rosenbaum. Again, it is my understanding that the 
various provisions, the various aspects of conscience clauses 
as we have come to understand them today are something that 
everybody believes in that are actually reflected both in 
underlying law and in the Affordable Care Act. But I think that 
is a different question than the very specific EMTALA 
obligation.
    Mrs. Blackburn. OK. Do you agree with President Obama? He 
made a statement that he thinks the use of abortion should be 
rare. Would you share that view?
    Ms. Rosenbaum. As a mother and hopefully a grandmother I 
agree emphatically.
    Mrs. Blackburn. OK. Mr. Johnson, good to see you. I want to 
ask you about a statement that I have read. It was made by Rahm 
Emanuel, who had been the Chief of Staff over at the White 
House as we had the Pitts-Stupak language last year. And he was 
giving an interview with the Chicago Tribune with their 
editorial board. Have you seen that statement, sir? Do you know 
what I am ready----
    Mr. Johnson. Yes, I have Congressman.
    Mrs. Blackburn. OK. And I thought that it was just so 
telling when he said, and I am quoting here ``I came up with an 
idea for how an Executive order to allow the Stupak Amendment 
not to exist in law.'' So you know, this is of concern to me 
when you see that kind of language. And I just ask you, sir, 
when you look at that is that Executive order addressing 
abortion funding insufficient to assure that taxpayers are not 
going to end up footing the bill for abortions?
    Mr. Johnson. The Executive order is a hollow political 
construct. The president of the Planned Parenthood Federation 
of America described as ``a symbolic gesture''. I think these 
are two ways of saying the same thing. We could go through it 
section by section if we had time and I do in my affidavit that 
I referred to earlier which is available here and on our Web 
site. But in substance there is a great deal of rhetorical 
misdirection in the first section. The actual operative 
language only speaks to two of the many abortion implicating 
components of the PPACA itself. In one case it merely 
reiterates the objectionable language that allows the tax 
credits to be used to purchase plans that cover elective 
abortion and in the other case it purports to put a restriction 
on abortion funding through community health centers but there 
is no statutory basis for it and so it is doubtful that they 
could make that stick if it ever became an issue. The other 
provisions in the bill, in the PPACA itself which implicate 
abortion policy are not even addressed in the Executive order. 
And so we saw, for example, this summer the very first 
component of the packet to be implemented: the high-risk 
insurance pool program. Once we got a hold of some of the plans 
that had been approved by HHS we found three of those of the 
ones we were able to get explicitly covered elective abortion. 
And when we blew the whistle on this last July and a public 
controversy ensued, after about a week the administration said 
OK. They would employ their administrative discretion not to 
pay for abortion in that program. But they said and we said and 
the ACLU said and everybody agreed they were authorized to do 
so and they had already approved plans to do so. There is 
nothing in the bill to prevent it. It was authorized. There is 
nothing in the Executive order that even mentioned it. All of 
these events are recited in detail in my written testimony and 
in the affidavit.
    Mrs. Blackburn. Thank you. Yield back.
    Mr. Pitts. Chair thanks the gentlelady and recognizes the 
ranking member emeritus Mr. Dingell for 5 minutes.
    Mr. Dingell. Thank you Mr. Chairman. Ladies and gentlemen, 
I heard someone at the committee table--I don't remember who it 
was, say that there are a number of subsidies for abortion in 
federal law. Could you tell me where they are, please, starting 
with Mr. Johnson?
    Mr. Johnson. There are subsidies----
    Mr. Dingell. For abortion.
    Mr. Johnson. Are we talking about the PPACA or other law?
    Mr. Dingell. Well all right, let us take first of all the 
Health Care Reform Bill. Are there subsidies in there?
    Mr. Johnson. Yes, we described them.
    Mr. Dingell. Where are they and what are they?
    Mr. Johnson. In the written testimony I just gave one 
example: the high-risk insurance plan. The Administration in 
July was already approving State plans that covered elective 
abortion explicitly. They then backed off but they asserted and 
they were correct that they were authorized to do so by the 
statute.
    Mr. Dingell. All right now----
    Mr. Johnson. They weren't mandated to do so, they were----
    Mr. Dingell. All right, Let us analyze that. When you 
subsidize something you pay more than the cost of it. Is that 
right? That would be a good definition isn't it?
    Mr. Johnson. The cost of what, sir?
    Mr. Dingell. Well, if I am subsidizing abortion I am going 
to pay more than the cost of the abortion to the person that I 
am giving the money to. Is that right or wrong?
    Mr. Johnson. I am not sure I follow you, sir.
    Mr. Dingell. Well----
    Mr. Johnson. If that is----
    Mr. Dingell. In the farm bill we give a subsidy and there 
we subsidize farmers for producing goods. We essentially pay 
them to do that. So where in this--where in the Health Reform 
Bill is there where we subsidize it, where we pay people to 
have it?
    Mr. Johnson. Well, that was----
    Mr. Dingell. Where we give them a financial inducement?
    Mr. Johnson. This first example which would be the first in 
a long list I could give you if I had time----
    Mr. Dingell. All right.
    Mr. Johnson [continuing]. Is 100 percent federally funded 
program. It is 100 percent federally funded. That is where it 
goes.
    Mr. Dingell. But 100 percent federal funded----
    Mr. Johnson. To purchase the health coverage----
    Mr. Dingell. I am sorry?
    Mr. Johnson [continuing]. For the population that qualifies 
for this particular program, the pre-existing condition program 
created by the PPACA. OK. Now, so we take it as a premise.
    Mr. Dingell. You are telling me it is a pre-existing 
condition prohibition pays a subsidy for people to get 
abortions?
    Mr. Johnson. They were paying 100 percent of the cost of 
State plans.
    Mr. Dingell. One hundred percent of what cost?
    Mr. Johnson. They were covering the cost of the health 
plan, sir. Entire cost----
    Mr. Dingell. One hundred percent----
    Mr. Johnson [continuing]. Of the health plan is being paid 
by the Federal Government.
    Mr. Dingell. Well, maybe I am looking at a different 
session but I am curious. We don't--the government doesn't pay 
100 percent of that. We simply say you got to pay--you say to 
the insurance company you have to give folks this--you have to 
give them coverage and may not deny it because they have a pre-
existing condition. What--how?
    Mr. Johnson. No, that is--you are--that is a different part 
of the law.
    Mr. Dingell. All right. To what----
    Mr. Johnson. I am talking about----
    Mr. Dingell. To what do you refer? I am having a hard time 
following you.
    Mr. Johnson. I am talking about it is the high-risk pool 
program that pre-existing insurance----
    Mr. Dingell. All right, so the high--the pre-existing where 
does that subsidize?
    Mr. Johnson. Section 1101.
    Mr. Dingell. What----
    Mr. Johnson. This is for the qualified population the 
Federal Government pays 100 percent of the cost of their health 
coverage.
    Mr. Dingell. Of the health coverage. Do we pay 100 percent 
of the rest of the--wait, hold--do we pay----
    Mr. Johnson. And the State plans were explicitly covering--
pay for----
    Mr. Dingell. Just yes or no? Do we pay or?
    Mr. Johnson. Yes. Of course.
    Mr. Dingell. We pay 100 percent of the cost of the 
abortion?
    Mr. Johnson. When the government pays for health insurance 
it pays for what the insurance pays for, Mr. Dingell. And if 
you adopt the view that it is a bottom line issue. Look at back 
when Medicaid was paying for 300,000 abortions a year before 
there was a Hyde amendment. Now, every time they paid for one 
of those abortions they actually saved the cost of childbirth 
which is more expensive than the abortion. So you could say 
there was no bottom line impact and that the government wasn't 
actually subsidizing abortion when they were paying for 300,000 
elective abortions a year. We think that----
    Mr. Dingell. Let us stay----
    Mr. Johnson [continuing]. Would be tortured logic.
    Mr. Dingell [continuing]. With my question and not get off 
into rather odd dialectic here if you please. I am trying to 
understand if the Federal Government pays the cost of the 
overage so that the State may offer this particular benefit to 
people how is it then that they are subsidizing abortion? I am 
trying to understand how----
    Mr. Johnson. I am not sure why you keep talking about the 
State. This is a 100 percent federally funded program.
    Mr. Dingell. OK. Well, there are actually several programs 
here, but all right, let us say it is 100 percent federal. 
Where--how is the Federal Government, if they pay 100 percent 
of that cost, subsidizing abortion?
    Mr. Johnson. If the Federal Government is paying for 
somebody to enroll in this program in, say New Mexico which is 
one of the plans, and that plan covers elective abortion, then 
the Federal Government is paying for every abortion that is 
paid for by that plan. How could it be otherwise?
    Mr. Dingell. All right, what are the other subsidies?
    Mr. Johnson. There are authorizations in the PPACA for a 
great deal--what seven billion in money to community health 
centers. These----
    Mr. Dingell. So do community health services--centers 
provide abortions?
    Mr. Johnson. Some do.
    Mr. Dingell. How many?
    Mr. Johnson. This was disputed. We don't know.
    Mr. Dingell. I have got seven of them in my District and I 
am not aware of one that does.
    Mr. Johnson. There is a national project called the 
Reproductive Health Equity Project I believe which is devoted 
to trying to get them to adopt abortion as part of their 
regular----
    Mr. Dingell. Is that covered by the Hyde amendment?
    Mr. Johnson. It is not, sir, because these funds are self-
appropriated in the packet itself. Now, the President in his 
Executive order purports to say please don't use those monies 
for abortions but there is no statutory basis for it. The Hyde 
amendment only covers what flows through the HHS appropriations 
pipeline. The PPACA has a great many new pipelines self-
appropriated at this----
    Mr. Pitts. The gentleman's time has expired.
    Mr. Dingell. Thank you, Mr. Chairman.
    Mr. Pitts. Gentlemen, the Chair recognizes the gentleman 
from Pennsylvania, Dr. Murphy for 5 minutes.
    Mr. Murphy. Thank you, Mr. Chairman. I hope I can--you can 
see me back there. I just want to clarify the stream and what 
is the law and not the law. Can federal money such as Medicare, 
Medicaid be used to purchase medical supplies at health 
clinics? Can that be used? Yes or no, anybody from the panel.
    Ms. Rosenbaum. Certainly Medicare and Medicaid pay for the 
supplies.
    Mr. Murphy. OK yes, OK. And so they can pay the rent and 
heating and utilities that clinics that perform a number of 
services including abortions?
    Ms. Rosenbaum. There would be no payment. I am----
    Mr. Murphy. But if it is the same building it would pay for 
the medical supplies and utilities and the rent et cetera where 
some types of medical procedures are covered, but also where 
abortions are also performed. Is that correct?
    Ms. Rosenbaum. You could not bill for a prohibited feature.
    Mr. Murphy. But if it pays the rent and utilities and the 
medical supplies you could use Medicare funds, Medicaid funds 
to pay for that where those abortions may also exist. Am I 
correct?
    Ms. Rosenbaum. No, you could not bill for a prohibited 
feature. And you could not pay for----
    Mr. Murphy. Can you--if an abortion takes place and there 
is medical equipment needed: sutures, scalpels, scissors, 
clamps, gauze, medicines, can some of those that are paid for 
in the clinic in one category filing or closet be also used for 
a woman who may be having an abortion?
    Ms. Rosenbaum. I still don't understand. You cannot bill 
for a prohibited feature.
    Mr. Murphy. When a clinic purchases supplies do they have 
two separate medical supply rooms? One that is paid for--the 
money could come from federal or say taxpayer dollars such as 
Medicaid and another entirely separate funding stream where 
supplies would come from? Are they kept entirely separate? Does 
anybody on the panel know? OK. I hold in my hand a federal 
grand jury report about a clinic in Philadelphia, first 
judicial district of Pennsylvania. It is 260 pages worth of 
shocking and horrifying descriptions of what took place at the 
Women's Medical Society. It is--and it has procedures and lists 
of things too gruesome to describe. Many babies who were born, 
who were viable and were left on a table until the doctor would 
come in and use scissors to sever their spine. The fellow 
Rhenus Clinic is up for many charges of murder although it is 
estimated this actually took place in the hundreds. Now, I want 
to show you a document here which is fairly important with 
regard to this that--with regard to how one billed for some of 
these services. And what it has on this document, it is very 
interesting the column of how things are paid for because it 
lists some of the prices. Let me see if I can find it here. It 
lists some of the prices for these services and in this column 
it says you know paid for by Medicaid and for--and then part 
was out of pocket expenses. Does anybody--here would help me 
find that paper. Anybody know how that could be?
    Ms. Rosenbaum. I presume you would have to ask the 
Pennsylvania Medicaid folks.
    Mr. Murphy. I mean the thing that is real difficult for me 
is we are told it is illegal and yet here is a clinic that has 
operated for quite a time billing Medicaid. I want to know how 
this is where it has on this price list and it is broken down 
by the age of the fetus from 6 to 12 weeks under discount price 
for Medicaid and cash it is $330. Thirteen to 14 weeks 
gestation is $440. When it is 21 to 22 weeks it is 1180 
although the 23 to 24 weeks because it is a 3 day procedure of 
dilation for a partial birth abortion it is 1525. The prices go 
up according to the age of the baby. But it says Medicaid and 
cash and I don't understand how if we are saying federal taxes 
don't go towards paying for abortions I just want to make sure 
we are not living in a delusional world. Is it used or not?
    Ms. Rosenbaum. A State Medicaid program, a state Medicaid 
agency can use nonfederal share funding to pay for a broader 
range of services.
    Mr. Murphy. How do they do that? Do they mark the bills 
that come from the Federal Government and separate them into a 
pile?
    Ms. Rosenbaum. Yes. They literally segregate out claims 
that would be federally allowed.
    Mr. Murphy. So state taxpayer dollars----
    Ms. Rosenbaum. This is a----
    Mr. Murphy [continuing]. Are going toward this? But State 
taxpayer dollars can go toward these abortions?
    Mr. Johnson. I have a different view on this point, Mr. 
Murphy.
    Mr. Murphy. Yes.
    Mr. Johnson. First of all, it is not true that the Hyde 
amendment allows states to use matching funds in Medicaid for 
abortions other than life of the mother, rape, and incest. This 
is explicitly prohibited by the text of the Hyde amendment 
which again the complete text is footnote 10 in my written 
testimony. But a state may set up a parallel program with 
entirely state funds. Technically it is not Medicaid----
    Mr. Murphy. Taxpayer funds.
    Mr. Johnson [continuing]. As former administrator has 
pointed out--to cover whoever they want with entirely state 
funds. But Pennsylvania has not done so. Pennsylvania in fact 
has resisted even the expansion to the rape/incest back during 
the Clinton Administration. So I can't explain the document 
that you have in your hand. I think that does bear further 
investigation. And it really illustrates how particularly with 
respect to late abortions a lot of the things that were told, 
statistics and so forth are highly suspect. I mean, you are 
told that late abortions are quite rare. Well, even by the 
Guttmacher Institute figures there is at least 20,000 a year 
after the first half of pregnancy in the fifth month or later--
maybe a lot more.
    Mr. Murphy. Mr. Chairman, I would just ask as part of what 
the committee takes action in researching this issue in terms 
of how that funding stream was done and look at this is it an 
example or not of how taxpayers funds were used to pay for 
abortions. Thank you. I yield back.
    Mr. Pitts. Without objection. Thank you. The Chair 
recognizes the gentlelady from California, Ms. Capps for 5 
minutes.
    Mrs. Capps. Thank you, Mr. Chairman and before I get to my 
questions I want to ask unanimous consent to submit for the 
record statements from NARAL, an organization opposing this 
legislation.
    Mr. Pitts. Without objection, so ordered.
    [The information appears at the conclusion of the hearing.]
    Mrs. Capps. Thank you. Previously my colleague Mr. Waxman 
was asking some questions and I want to follow up on one of his 
questions to you, Professor Alvare. Should a health care 
provider whose conscience dictates that they should provide 
abortion services just like in Mr. Waxman's example of a woman 
who had been raped. If you from your lawyer's point of view 
from being an attorney and a professor of law, should that 
individual provider's conscience receive the same protection 
under the law that you support for those opposed to abortion? 
We are talking about the conscience clause here.
    Ms. Alvare. The first thing with respect to this particular 
legislation is that they are free to provide abortions in the 
United States. It remains legal. It remains legal throughout 
pregnancy and they are free to do it. I would not want 
legislation that particularly protects their conscience to do 
it within an institution that doesn't want to do it. They are 
free to do it anywhere they like except of course within an 
institution whether they are religious or just morally opposed 
to abortion. We prefer as a nation life over death. The Supreme 
Court has allowed States to do that and if they want to extent 
conscience protection particularly to people who do not want to 
provide abortions it is because those are the people being 
forced. People who want to provide abortions are not stopped 
from doing so.
    Mrs. Capps. So you are referring to an anti-discrimination 
law?
    Ms. Alvare. People who want to provide abortions are not 
stopped from doing so. That is the state of our country right 
now.
    Mrs. Capps. OK. Let me point out that you have asserted 
also that poor and vulnerable women are often treated by 
Catholic hospitals and that the protection of conscience and 
care for vulnerable women are not opposite values. But this is 
the situation that Professor Rosenbaum brought up. November of 
2009, a 27-year-old pregnant woman brought to St. Joseph's 
Hospital, a medical center in Phoenix, Arizona suffering 
pulmonary hypertension. To quote the hospital in that case the 
treatment--her hypertension was exacerbated by the pregnancy 
and the treatment necessary to save her life required the 
termination of an 11 week pregnancy. This decision was made 
after consultation with the patient, her family, her 
physicians, and in consultation with the ethics committee of 
the hospital. Fortunately because of the doctor's actions in 
this case this woman lived. That is what you are referring to 
and then went home to care for her four children. Now in your 
testimony, Professor, you describe the need for institutions 
and medical providers to be able to choose against performing 
health care services that they find objectionable. Do you 
believe that if--that the hospital should have had the choice 
in a different situation or with a different set of committees 
and so forth to let this woman die without a treatment or 
referral?
    Ms. Alvare. Congresswoman, I think the hospital would 
disagree with your characterization. The details of this 
particular situation have never been fully, publicly verified--
--
    Mrs. Capps. But you could answer my question as an 
attorney. Say the details were----
    Ms. Alvare. Well, they said it wasn't an abortion, 
Representative.
    Mrs. Capps. Well, but it--the--then----
    Ms. Alvare. At the hospital.
    Mrs. Capps. Then make this a hypothetical situation.
    Ms. Alvare. OK.
    Mrs. Capps. As a professor of law in this kind of situation 
do you believe that a hospital with a conscience clause who 
chooses not to perform these procedures should let this woman 
die? Or someone who is hemorrhaging which is sometimes the case 
in a pregnancy and only has a few minutes to live and in some 
parts of this country there is not another hospital within the 
time that would be allotted.
    Ms. Alvare. Then if you believe that unlike what Guttmacher 
says----
    Mrs. Capps. I am asking you to answer for yourself.
    Ms. Alvare. Yes, that--but it is premised on the question 
that you believe this situation could occur. Doctor and 
Representative Burgess has suggested it hasn't--38 years of 
legal abortion it hasn't.
    Mrs. Capps. But the conscience clause should apply--it 
needs to apply.
    Ms. Alvare. Where we really need some conscience protection 
in a big way is at the health department officials that need 
investigating.
    Mrs. Capps. But you are not answering my question, 
Professor.
    Ms. Alvare. No, I think I have with due respect that we 
don't have that situation. It is hypothetical. What is not 
hypothetical is the dozens of women dying at abortion clinics 
like Dr. Gosnell's. We need protection for those women and the 
situation in Phoenix as you said you----
    Mrs. Capps. Let me put it in another way. I don't want to 
interrupt you, but I--there is such little time. In your 
testimony you seem to indicate that an individual with life 
threatening emergency has time to Google all the available 
medical services and she could get to some other place to find 
a treatment for her life threatening hemorrhage. For this woman 
to receive the care she might need she would have to self--do 
you not think this is an incredibly unreasonable action to 
expect from a woman in that sort of condition?
    Ms. Alvare. I never referenced Googling hospital services 
in any of my testimony. There is nothing similar to that in my 
written testimony. What I am telling you is that when it comes 
to women dying in connection with abortion we have dozens and 
dozens and dozens of examples----
    Mrs. Capps. But doesn't--but you----
    Ms. Alvare [continuing]. At abortion clinics but not in a 
hospital setting. None in 38 years.
    Mrs. Capps. I yield back.
    Mr. Pitts. Chair thanks the gentlelady and recognizes the 
gentleman from Georgia, Mr. Gingrey for 5 minutes.
    Mr. Gingrey. Mr. Chairman, thank you. I want to refer back 
to a line of questioning that the ranking member brought up 
earlier. I don't think he is still here, but this is in regard 
to the questions over conscience protections and I am going to 
address this to Ms. Alvare. Does the Pitts legislation, the 
Protect Life Act, does it provide any additional conscience 
protections that are not included in the Patient Protection and 
Affordable Care Act, sometimes referred to as ``Obamacare.'' Or 
indeed President Obama's Executive order. And if so, why do you 
think those protections should be adopted through enactment of 
the Pitts legislation before us here today?
    Ms. Alvare. Thank you. A good deal of that is to preserve 
what we always had in the Hyde-Weldon legislation. For instance 
specific examples, the Affordable Care Act extended 
nondiscrimination protection with regard to health plans but 
not as against actions of government. The Stupak-Pitts 
amendment which was adopted by voice vote, by the full Energy 
and Commerce Committee in 2009 included those protections just 
like Weldon did. It was considered so uncontroversial that it 
included those on a voice vote. Additionally and this is where 
I would appreciate the opportunity to clarify what I believe 
was Congressman Waxman's fundamental misunderstanding of that 
piece of the Protect Life Act that talks about regarding 
abortion. He thought that by striking that language out of the 
Affordable Care Act and putting other language in we were 
actually allowing for hospitals to refuse to provide or health 
care providers, et cetera--any entity to provide this wide 
array of health care services that he listed. In fact, that was 
just the striking of a heading because the heading did not 
appropriately characterize what went underneath it. And in 
addition, it was connected with amending the Affordable Care 
Act to make sure that not only did it not preempt State laws on 
abortion, but it also didn't preempt those 47 States and the 
District of Columbia that already have conscience protection on 
the books. So his reading of that particular piece of Protect 
Life Act I would say is not--would not be what the text is 
saying. And that what it was doing that the Affordable Care Act 
didn't do but now we would have under the Protect Life Act was 
to protect all those State's conscience protection clause.
    Mr. Gingrey. So Ms. Alvare, in just in summary from what 
you say, clearly your opinion is that what is in Patient 
Protection Affordable Care Act and also in the Executive order 
does not go far enough in regard to the conscience clause; 
therefore, the need of that provision, that section of the 
Protect Life Act in the Pitts bill.
    Ms. Alvare. On its face----
    Mr. Gingrey. Yes.
    Ms. Alvare [continuing]. Textually speaking Protect Life 
Act does----
    Mr. Gingrey. And I think that is a yes and I am going to 
accept that----
    Ms. Alvare. Yes.
    Mr. Gingrey [continuing]. Because my time is getting 
limited. I did want to go to Mr. Johnson. And Mr. Johnson, some 
have suggested that the current existence of the Hyde amendment 
and the President's Executive order mean there is no need for 
the Pitts legislation. Does President Obama's Executive order 
support the Hyde amendment and does his Executive order address 
all of the concerns regarding federal funding of abortion?
    Mr. Johnson. The reference in the Executive order, the Hyde 
amendment is just discursive. It is a form of misdirection. Of 
course, the bill doesn't repeal----
    Mr. Gingrey. Let me interrupt you just for a second. I will 
let you answer. And I think that came up a little bit earlier. 
My colleague from Tennessee, Ms. Blackburn mentioned the 
interview that the former Chief of Staff to the President, Mr. 
Rahm Emanuel had in an interview with the Chicago Tribune, he 
essentially said that. Did he not? You go ahead.
    Mr. Johnson. Yes, and that is why president of Planned 
Parenthood said it was just a symbolic gesture. By the way, I 
am sorry Mr. Dingell is not here anymore because my associate 
handed me the memo from the Congressional Research Service 
about the high-risk pool program that we were discussing a few 
minutes ago and it says--this is a memo from the CRS July 23, 
2010, and I quote ``Because the Hyde amendment restricts only 
the funds provided under the appropriations measure for the 
Departments of Labor, HHS, and Education, it would not seem to 
apply to the funds provided for the high-risk pools.'' And that 
is why the ACLU criticized the White House when they made the 
discretionary decision after the public controversy last July 
not to fund abortions in that particular program. They had the 
authority to do so under the PPACA. They decided not to because 
of the controversy.
    Mr. Gingrey. Mr. Johnson, let me interrupt you just 
quickly. In the last 5 seconds I have do you think then that 
the Protect Life Act is an effort to codify, essentially to 
codify the language in the Stupak-Pitts amendment that was 
passed by this house in November of 2009?
    Mr. Johnson. Yes, the bill was patterned very closely on 
the amendment that passed the house by----
    Mr. Gingrey. With much Democratic support.
    Mr. Johnson [continuing]. Two-hundred forty votes, which 
was one quarter of all the Democrats and no Republican voted 
against it.
    Mr. Gingrey. Thank you. Yield back.
    Mr. Pitts. Chair thanks the gentleman and recognizes the 
gentlelady from Illinois, Ms. Schakowsky for 5 minutes.
    Ms. Schakowsky. Thank you, Mr. Chairman. I wanted to ask 
you Mr. Johnson, do you want to stick with your statement that 
the Federal Government pays 100 percent of the high-risk pools?
    Mr. Johnson. Yes, and in fact that statement is up on the 
Secretary Sebelius's Web site.
    Ms. Schakowsky. I have in my hand the Illinois plan, the 
Illinois Pre-existing Condition Insurance Plan and it says how 
is IPXP being funded. In addition to the federal funds, the 
IPXP will be funded by premiums paid by enrollees and here is 
the whole list of the money that is being paid by the 
enrollees. This is not a question. I want to say for the record 
that this is not 100 percent paid for by the Federal 
Government. And if I could just have a yes or no answer to 
this, did the National Right to Life Committee support the 
changes to the Hyde amendment that were originally included in 
this bill forcible rape and regarding incest if a minor?
    Mr. Johnson. I can address that question, but not with a 
yes or a no.
    Ms. Schakowsky. Well, it seems pretty simple. Did the 
organization support those?
    Mr. Johnson. We supported the bill as introduced. We also 
support the current policy which is incorporated in the Hyde 
amendment. I believe that these--well, Congresswoman if you 
want my position then you will have to allow me to answer in my 
own way. We support the policy that is incorporated in the Hyde 
amendment. It is not perfect, but we do support it. And we 
supported the bill as introduced. It is not perfect either. You 
know we could discuss the history of how the language was----
    Ms. Schakowsky. No, I--medical doctors on--however, my 
understanding of the National Right to Life constituent views 
of the term for--they said see it as what we are talking about 
as frivolous or--so let me ask you this. Is it elective when a 
woman has an abortion because she will go blind because of the 
use of all the----
    Mr. Johnson. The term elective as it has been used the last 
couple of years and in testimony today is a kind of shorthand 
for abortions outside the scope of the Hyde exceptions, life of 
the mother, rape, and incest. It is not a moral judgment or an 
ethical judgment on these other circumstances. It is just a 
shorthand way----
    Ms. Schakowsky. So in other words by that definition 
elective, if a woman would go blind as a result of pregnancy 
that would be outside of Hyde and that would be elective?
    Mr. Johnson. That would be elective as the term has been 
used in some of this discourse as a form of shorthand. It does 
not--the circumstance you have just described is not to prevent 
the death of the mother as you have just stated. It is not 
rape. It is not incest.
    Ms. Schakowsky. Right, OK. So is it elective then--I want 
to just get this on the record if a woman with an ectopic----
    Mr. Johnson. I have answered your question.
    Ms. Schakowsky. No, I am asking another question. Excuse 
me. If the--is it elective if a woman with an ectopic pregnancy 
has the embryo surgically removed while leaving the fallopian 
tube intact?
    Mr. Johnson. What you have described many would dispute as 
any kind of an abortion, but if it is to be considered an 
abortion it would be considered an abortion to save the life of 
the mother and certainly allowed by Hyde. Indeed this was 
explicitly in the Hyde language back in the '70's I believe or 
at least in the conference report. But it has never been an 
issue.
    Ms. Schakowsky. If--is it elective if a woman miscarries 
one of the twins she is pregnant with and terminates the 
pregnancy of the second fetus after doctors conclude there is 
no hope for survival?
    Mr. Johnson. For whose survival, Congresswoman?
    Ms. Schakowsky. For the--no hope for survival of the fetus.
    Mr. Johnson. The Hyde amendment does not permit federal 
funding of abortion of a child because the child has a poor 
prognosis or a handicap. The criteria is if the life of the 
mother would be endangered if the pregnancy were be carried to 
term.
    Ms. Schakowsky. So, no hope for survival does not 
constitute--that would be elective? No hope for survival.
    Mr. Johnson. No hope for survival of the child for some 
time after birth? Is that what you are saying?
    Ms. Schakowsky. That the child cannot perhaps survive the 
full nine months or could not survive after birth. Right.
    Mr. Johnson. The Hyde amendment does not permit federal 
funding of abortion as a form of prenatal euthanasia.
    Mr. Pitts. The Chair thanks the gentlelady and recognizes 
the gentleman from Louisiana, Mr. Cassidy for 5 minutes. You 
want to step back here? We will hold the five.
    Mr. Cassidy. Hi Ms. Rosenbaum. In full disclosure to 
everybody else, you and I have authored and coauthored a paper 
before.
    Ms. Rosenbaum. I have to put my mic down for that. We have 
indeed.
    Mr. Cassidy. Yes. Now, a couple things. I am approaching 
this as a physician because some of this discussion--a woman 
doesn't go blind from diabetes in pregnancy. The Renal-retinal 
syndrome is something that develops over years and so it is not 
something that would precipitously occur. And that is just one 
example how as a physician I have kind of approached this. When 
I read your testimony you quoted an article that you had 
written so I pulled it up. I have great respect for your 
writing. And one of the things you are talking about here is 
medically indicated and you say a woman has a car wreck, 
fractures her pelvis, loses the baby, would the hospital not be 
paid for fixing the pelvis because the baby was lost. Now 
frankly, that would most likely be to save the life of the 
mother, but I had never heard of a hospital having a problem in 
such a situation, a major motor vehicle accident. Have you?
    Ms. Rosenbaum. Let me just be sure I am following your 
question.
    Mr. Cassidy. I am reading your paper here--I am sure you 
are familiar with it. It is regarding the Stupak-Pitts 
amendment. It is actually about current law and not about what 
is proposed. And you say how will plan administrators 
distinguish between the abortion procedure and the rest of the 
treatment? Will the entire cost of a course of treatment--
example, surgery to repair a damaged pelvis following an 
automobile accident--be denied if abortion is part of the 
procedure. I have never heard of that happening. Have you?
    Ms. Rosenbaum. Here is the problem. The analysis which I 
reference and also gave sort of shorthand to in my oral 
statement focuses on the administrative choices made by health 
plans. When a particular treatment is excluded often they will 
say that other treatments that are related to the treatment----
    Mr. Cassidy. But see, for example, I am sure we have 
experience with Medicaid managed care.
    Ms. Rosenbaum. Yes, absolutely.
    Mr. Cassidy. If a woman comes in with sepsis following a 
whatever--an abortion that normally the Medicaid wouldn't pay 
for, she paid cash and had a complication and came to the 
hospital, I have never heard of a managed care plan not paying 
for the rescue, if you will, of the botched procedure. Have 
you?
    Ms. Rosenbaum. What I am writing about and testifying about 
is what is absolutely legally within the right of the----
    Mr. Cassidy. So it is not anything that empirically 
happened with a long experience with Medicaid managed care. 
Rather it is a what if?
    Ms. Rosenbaum. It is the legal implication of having an 
exclusion. This is once you have a benefit exclusion then 
other----
    Mr. Cassidy. But we have benefit exclusions in Medicaid 
managed care which is why I come back to that. Medicaid managed 
care does not cover abortion.
    Ms. Rosenbaum. Correct.
    Mr. Cassidy. But as far as I know I have never heard of it 
not paying for the rescue of somebody who has had a 
complication following a cash paid abortion. Have you--again, I 
just ask because I don't think you are fear mongering on 
purpose, but frankly it has that effect because I have never 
heard of that and that is as a practicing physician.
    Ms. Rosenbaum. Well, I think the issue in analyzing a bill 
like this is to identify for Members of Congress what the 
potential implications are. Now you could address the issue----
    Mr. Cassidy. Now I accept that. OK. So I think it is fair 
to say it hasn't happened and it is just a question of----
    Ms. Rosenbaum. No, we don't know, at least. There has been 
no documentation.
    Mr. Cassidy. I can promise that would hit the newspaper. 
But that said, and again I was struck because I have seen 
patients. Although I am a gastroenterologist. I know of such 
patients. Secondly, the ERISA market--there seems to be some 
concern you have that by doing this we are going to somehow 
destroy the insurance market for non- federally somehow 
connected plans. It is interesting that you suggest that a lot 
of people are going to drop their current coverage to go on a 
subsidized plan and I will note that we were assured that was 
not going to happen. But nonetheless, as you note in your paper 
we have a huge ERISA market. I mean, a huge 87 percent of the 
people are covered by ERISA and most of those folks have 
coverage. Maybe as a percentage it will decline but really in 
absolute numbers it is huge. Are you saying that that will go 
away?
    Ms. Rosenbaum. No, no. The paper addresses what happens 
when the same health benefit companies that sell products in, 
let us say the exchange market, are also selling small group 
products, employer products in the non-exchange market. A 
company can only make so many variations on the product itself.
    Mr. Cassidy. But we certainly know that they do make a lot 
of product variations now. Now you mentioned, for example, that 
there is dental and vision. We all know that and you say that 
would be a smaller market. On the other hand I have no doubt 
there is an enterprising insurance company out there that will 
become the coverer for many other companies.
    Ms. Rosenbaum. The problem with this particular market is 
that if you follow both this bill and H.R. 3----
    Mr. Cassidy. Now by the way, we are talking actually by--
this is about Stupak-Pitts.
    Ms. Rosenbaum. Yes, yes, yes.
    Mr. Cassidy. So you are describing now what would be the 
effect of this addendum, if you will, but rather what is the 
effect of the current Executive order as regards PPACA now. 
Correct?
    Ms. Rosenbaum. No, no, no. In fact, I would say this bill 
would bring health reform into line with what originally was 
Stupak-Pitts.
    Mr. Cassidy. OK. So the original kind of thing that passed 
by a huge bipartisan, this would bring it into align with where 
that was?
    Ms. Rosenbaum. This would substitute----
    Mr. Cassidy. Yes.
    Ms. Rosenbaum [continuing]. At least in part Stupak-Pitts 
for what was----
    Mr. Cassidy. They are clicking behind me. We are through. 
Thank you very much.
    Mr. Pitts. Gentleman's time is expired. Chair recognizes 
the gentlelady from Wisconsin, Ms. Baldwin.
    Ms. Baldwin. Thank you, Mr. Chairman. Before I begin I 
would like to ask unanimous consent to submit for the record 
the testimony of Dr. Douglas Laube who is the Board Chair of 
Physicians for Reproductive Choice in Health.
    Mr. Burgess. Mr. Chairman, could I ask to see that before 
we have that unanimous----
    Mr. Pitts. Could we request a copy of that?
    Ms. Baldwin. Well certainly.
    Mr. Burgess. While we are on the subject, can I see the 
paper that the previous questioner was referring to? If I could 
get a copy of that as well that would be great.
    Mr. Pitts. No----
    Mr. Burgess. Thanks. No rush. I just----
    Mr. Pitts. All right, the gentlelady is recognized for 5 
minutes.
    Ms. Baldwin. And the result of my unanimous consent 
request? Have I----
    Mr. Burgess. Take a minute to read it. I don't mean to be 
rude. I am going to read while you are talking but I can listen 
while I read.
    Ms. Baldwin. All right. Earlier I expressed my dismay that 
our very first hearing of this subcommittee in this brand new 
session of Congress wasn't focused on the issues that are most 
important to my constituents. I would suggest all of our 
constituents--that being jobs. Many facets of which would be 
directly relevant to our subcommittee's jurisdiction. But 
instead on a bill that rolls back the right of women to make 
important life decisions. And I think that speaks volumes and I 
wonder what else we will see on this issue in the weeks and 
months to come. Will we see defunding of family planning and 
access to contraception? Will we see revisiting of the rape and 
incest exemptions? And on that topic, I am familiar with the 
chairman's bill as introduced. I believe it is H.R. 358 and 
another bill, H.R. 3. That one which is cosponsored by over 
half of the Republican conference. In both of those bills there 
is a redefinition of the rape exemption that would give 
insurance companies and health care providers new authorities. 
Perhaps you could even argue new responsibilities to decide if 
a woman has been forcibly raped and the authority to deny care 
to victims of incest. You know, it used to be that we told our 
young daughters and sons no means no. But now apparently no 
isn't sufficient. What happens if a rape victim is unconscious? 
What about somebody who has been given the date rape drug as it 
is known? Are these people no longer considered rape victims? 
Now, thanks to Americans and particularly American women who 
spoke out against these provisions, we are now considering a 
discussion draft of the Chairman's bill without these 
provisions. Although I don't have the discussion draft at my 
desk. I don't know if I am alone, but am I----
    Mr. Pitts. Where is it?
    Ms. Baldwin. Were people provided with the discussion 
draft, because I would like to certainly confirm that that 
language has indeed been removed? But it doesn't appear to be 
at our desks with our materials. In any event, let me move on. 
We know that this language in this proposal is not new. During 
the debate last year on the health care reform bill, this 
language was proposed and ultimately again withdrawn. So I 
guess, Professor Rosenbaum, I would like to explore the impact 
of this proposed redefinition of rape and incest that was 
included in the legislation H.R. 358, a variation of what we 
are looking at today. Who would make these treatment and 
coverage decisions for victims of rape and if this redefinition 
were to occur how might it be applied in practice? It is deeply 
troubling to me.
    Ms. Rosenbaum. There would be--really two levels of 
decisionmaking. First of course there would have to be a 
structure by which the sellers of the products themselves could 
certify that they were in compliance with the definitions. And 
so in this case because we are talking about a tax advantage 
plan definition the IRS would have to define these issues. But 
then when it comes to individual claims, it would go through a 
claims appeals process. So if you were a woman who claimed to 
have had an abortion for a covered purpose, the plan might 
review the claim and decide that the medical justification, the 
supporting evidence was not strong enough and would have legal 
authority of course to deny the claim for that purpose. So it 
would be an evidentiary determination just like any evidentiary 
determination. Then you would go through the appeals process.
    Ms. Baldwin. What about at the treatment stage? Is there 
any--what would come into play there in terms of what a young 
victim of rape would have to share in terms of demonstrating 
that she was forcibly raped?
    Ms. Rosenbaum. If the standard is a forcible rape standard 
then one could imagine everything from police reports which 
sometimes don't exist in these cases because of fears about 
coming forward. Other evidence, evidence of particularly brutal 
attack, physical tearing, all of the medical, clinical, law 
enforcement evidence that would surround presumably a forcible 
rape would come into play. And the insurer would be labeled as 
the bad guy but the insurer would be doing what it legally 
needed to do in order to adhere to the federal exclusion.
    Ms. Baldwin. Thank you and I would renew my unanimous 
consent request.
    Mr. Pitts. Chair thanks the lady. There is no objection so 
with unanimous consent, so ordered.
    Ms. Baldwin. Thank you.
    Mr. Pitts. Chair thanks the lady and recognizes the 
gentleman from Kentucky, Mr. Guthrie for 5 minutes.
    Mr. Guthrie. Thank you, Mr. Chairman. My friend Mr. Cassidy 
was talking about this--the paper, Ms. Rosenbaum that you had 
and I guess what you were saying how is the physician going 
to--if there is an abortion procedure, there is complication of 
that and they are treated beyond that, how are they going to 
disentangle what was abortion related and what wasn't. That was 
the same question we had with insurance. If somebody goes into 
the exchange and they receive a subsidy to go into the 
exchange, whether they pay 80 percent, 50 percent, and some of 
the argument that was made on the floor, I guess in the Senate 
although we did pass Stupak-Pitts in the House, was how do you 
know what portion of that premium is going to be for abortion? 
How--what portion is going to be from the federal taxpayer? And 
without being able to disentangle that we said well, you can't 
disentangle it because it is all tied together. And therefore, 
the intent is to ban this to keep with our idea that the 
federal taxpayer shouldn't pay for people's abortions. And on 
that with Mr. Johnson--and I am going to try to get this 
quickly because I want to yield some time. With Chairman 
Dingell, or Mr. Dingell you were talking about the coverage. So 
even if you don't get 100 percent coverage in the high-risk 
pool, if you get some percentage of coverage in the high-risk 
pool or any exchange, if the exchange offers abortion coverage 
and then there is no way to disentangle just what I was saying, 
what is a federal dollar and what is a private dollar?
    Mr. Johnson. Well, these are two different issues. I think 
Congresswoman Schakowsky and I were talking past each other a 
little bit. The high-risk pool program, yes, the client has to 
pay a certain amount in. Those become federal funds. Those 
become federal funds. That is why the secretary of HHS, on 
their Web site, says it is 100 percent federally funded. The 
state contributes nothing. The clients pay a certain fee just 
like in Medicare, but those then become federal funds. The 
notion that a federal agency can pay out of the treasury for 
medical services, abortions, or any other and that that is the 
use of private funds is really a hoax. And we saw an attempt 
with the Capps amendment on a bill last year to make that claim 
where the--under the public plan, the secretary of HHS would 
have been paying for elective abortions out of the federal 
treasury and they said but that was private funding of 
abortion. That is a hoax and nobody would entertain it for a 
moment if you were talking about some context other than 
abortion.
    Mr. Guthrie. I am going to yield the remainder of my time 
to Mr. Burgess.
    Mr. Burgess. I thank the gentleman for yielding. And in 
fact, Mr. Johnson when we had that discussion on the Capps 
amendment in the mark-up of the Patient Protection and 
Affordable Care Act in July of 2009 the Democrats own counsel 
characterized that as, he said it would be a sham if I recall 
correctly. It was late at night and after a lot of discussion, 
but I think many of us were startled when Mr. Barton asked the 
question and again the Democratic Counsel said no, that would 
be a sham.
    Mr. Johnson. We cite in our testimony a host of authorities 
on this that these are public funds, federal funds once they 
are collected. The government collects money through diverse 
means: taxes, user fees, these premiums, and so forth. They are 
all federal funds once the government has them.
    Mr. Burgess. On just a couple of things that have come up. 
The issue of a pregnancy located in the fallopian tube--I 
just--there would not be a situation arise where that would not 
be the health of the mother invoked in treating that condition.
    Mr. Johnson. Life of the mother.
    Mr. Burgess. Life or health of the mother with--life of the 
mother. Whether you use Methotrexate as a medical procedure or 
a surgical procedure but that has to be treated and everyone 
recognizes that. The paper that I asked permission to look at 
before we accepted it in the record does go through a litany of 
very hard rendering difficult situations. There is only one 
that is referenced in here that really would fall outside the 
emergency classification where it needed to be ten to two 
whether it is a hospital that provides this service or not. The 
doctor is obligated under EMTALA to provide that care, 
stabilize, transfer to another facility if the condition 
permits it, but only one of the six or seven cited here would 
actually fall into the category of elective. And the one that 
is elective, again, it is a tough story of someone with another 
child who is ill and decides not to carry their pregnancy. But 
that is hardly an emergency situation and one that can easily 
be stabilized and a proper caregiver found. Now, the other 
issue that is brought up in this paper is the issue about that 
the requirement of a rider would be unworkable, but in fact 
that is what insurance is. It is planning for the unplanned. 
And it does not seem to me to be unreasonable to ask for that 
to be one of the conditions. And again, the President is pretty 
clear in his Executive order I think. So we are just--Mr. 
Pitts, I congratulate you. You are trying to help the president 
and there are a lot of people who would say that that is an 
evidence of bipartisanship. So I welcome.
    Mr. Pitts. The chair thanks the gentleman and recognizes 
the gentleman from New York, Mr. Engel, for 5 minutes.
    Mr. Engel. Thank you, thank you Mr. Chairman. Look, we are 
all really beating around the bush here and when we are talking 
about a right of a woman to choose or the right of abolishing 
abortion in any circumstances. These are very heartfelt and 
personal views and I don't denigrate anybody's view on this 
issue. But I really am very much chagrined that first thing out 
of the box in this Congress the majority is pushing forward on 
wedge issues such as abortion when we should be doing things 
like helping our economy, and getting people back to work, and 
getting unemployment down. That is as far as I can see what the 
election was about in November and it is very disconcerting to 
see these wedge issues being pushed to the fore. Let me get 
back to basics. Let me first ask Professor Rosenbaum because we 
have been back and forth on this, aside from the narrow 
exceptions of life, rape, and incest, does the Affordable Care 
Act allow federal funding for abortion services?
    Ms. Rosenbaum. It does not.
    Mr. Engel. OK. So it is--your reading of it is a lot 
different from some of the testimony we have been hearing?
    Ms. Rosenbaum. I think--and every effort has been made to 
clarify any circumstance in which there was any question. I can 
find no evidence that anybody has not clarified that the same 
standards that we know in Hyde apply under the Affordable Care 
Act.
    Mr. Engel. In your testimony you state that the Protect 
Life Act will affect women's ability to find a health plan that 
includes abortion and purchase it with her own funds. Can you 
explain what that implication would mean for a woman's access 
to health services?
    Ms. Rosenbaum. The effect of the Protect Life Act would be 
in my view given my familiarity with the way insurers behave in 
a marketplace is that the market for the kind of coverage that 
one would need to buy essentially totally outside of the tax 
advantaged coverage just would never materialize because the 
people who are going to get the benefit of the Affordable Care 
Acts tax advantage system are individuals who don't have 
disposable income. They are by definition without the means to 
buy coverage. That is problem number one. Problem number two is 
the problem that I alluded to in both the written testimony and 
the oral statement namely it is very difficult to buy 
supplemental coverage and have that supplement totally, 
separately administered. Because the whole nature of a 
supplement is that it works in tandem with the basic coverage. 
Under the Protect Life Act the only way a supplement can be 
offered is if it is offered entirely separately, administered 
separately from the underlying coverage and is the example 
actually that Mr. Cassidy provided before where you have a 
terrible car accident and you have several things going on at 
the same time: an injury and potentially an abortion. You could 
easily end up in a situation where both--with the full coverage 
has to work in tandem in order to work otherwise the supplement 
and the primary just both deny it.
    Mr. Engel. Well, I think that this is another attempt to 
try to kill the Affordable Care Act and I am sorry that it 
uses--this legislation uses low-income and middle-income women 
as a political football. I just don't think it is right. 
Professor Alvare, I want to ask you a question. You talked a 
lot about the conscience clause and conscience protections for 
hospitals and doctors. I actually do agree with you on a number 
of things. I don't think that anybody who is opposed to 
abortion should be forced to perform one. And I don't think 
that hospitals that for moral or religious reasons don't 
believe in it should be forced to perform it. That is their 
conscience. You talked about the conscience of doctors or 
hospitals. But what about the conscience of the woman who is 
being affected? If in her conscience, if what she decides and 
she has to make a gut-wrenching decision, or if the family has 
to make a decision because of the woman's health why are we not 
respecting her conscience? Why only the conscience of the 
hospital or the doctor?
    Ms. Alvare. Thank you, sir. Under your definition of that 
being her conscience we do have over 1.2 million abortions a 
year with a hugely disproportionate number among the women you 
would consider to be vulnerable that we especially want to take 
care of. And if you are saying that--which I would not agree 
with--that abortion is part of that care, then I think you can 
rest assured in a rather sad way that the most vulnerable women 
are getting access to the most abortions. And the conscience 
protection for them is Roe, Casey, Stenberg, Gonzales which 
allows abortion on demand in the United States.
    Mr. Engel. But you would eliminate that so where is----
    Ms. Alvare. Absolutely.
    Mr. Engel. Where is respect for her conscience?
    Ms. Alvare. This bill does not eliminate that whatsoever 
and I would also bring up which I should have before and I am 
sorry the Church amendment which since 1973 has not only said 
that employers can't discriminate against doctors who don't 
want to do abortions, but also can't discriminate against 
doctors who do. Now, they can't do them at a religious or 
morally opposed hospital, but they are protected by federal law 
from--for doing them.
    Mr. Engel. But you would eliminate it given your druthers, 
would you not?
    Ms. Alvare. Would eliminate?
    Mr. Engel. Abortion under any circumstances. You said----
    Ms. Alvare. That is absolutely true, but this Act doesn't 
agree with what I say.
    Mr. Engel. Even with rape and incest you would say a woman 
should be forced to go through a pregnancy if she was raped or 
if there was incest.
    Ms. Alvare. I would never punish the child for what other 
people did. But this bill doesn't come close to reducing 
abortion in the United States, sadly enough, unless it changes 
the federal bully pulpit to say abortion is not a preferred 
service in a way that I hope it will.
    Mr. Engel. Mr. Chairman, before I relinquish, Mr. Towns 
before he left asked me if I would submit for him for the 
record--unanimous consent to submit testimony from the National 
Asian Pacific Women's Forum and the Center for Reproductive 
Rights. I have it here. I am doing it on behalf of Mr. Towns.
    Mr. Pitts. Good enough. Could--we haven't seen that. Take a 
look at that.
    Mr. Engel. Yes. Thank you.
    Mr. Pitts. Chair thanks the gentleman and recognizes the 
gentleman from New York, Mr. Weiner for 5 minutes.
    Mr. Weiner. Thank you, Mr. Chairman. Let us face it. There 
is a broad gulf. Mr. Engel is right on people's views of 
abortion and the Hyde amendment is one way to come to a 
conclusion on it. I don't believe that someone should be denied 
a medical procedure because of their income. I don't believe 
that someone who is more well-to-do who gets enormous tax 
breaks from the country that we don't attach to that tax break 
an agreement that they won't get a certain medical procedure. I 
don't believe we should distribute health care that way. I 
think it is inhumane and immoral. We have this Hyde amendment 
that is supposed to try to strike some kind of a middle ground 
that I am not completely happy with and members of the panel 
are not completely happy with. But let us agree on what we are 
saying here. We are not codifying the Hyde amendment. The Hyde 
amendment says that there is an exemption from the restriction 
of an abortion if a pregnancy is the result of a rape or an act 
of rape or incest. The bill that the sponsor would have liked 
to have us pass and probably will still succeed, a pregnancy 
occurred because a pregnant female is the result of a forcible 
rape changing the definition of rape because apparently some 
rape is more desirable in the eyes of the maker of the bill 
than others. And that includes a minor in active incest. So it 
can't be someone 19 is that age. So it is not at any effort 
here to codify the Hyde amendment. This is in an effort to 
expand the Hyde amendment. And well, frankly, someone caught 
him this time but they will work it in. They are the majority 
party. They can work this in at rules committee. We can count 
on seeing this language again expanding the Hyde amendment. 
Don't let anyone who supports this bill ever say to you I am 
for less government regulation. There is too much government 
regulation. You have got to be kidding. You can't vote for this 
thing and then say you are for less government regulations the 
mother of all government regulations. This is the regulation of 
an individual woman in a room with her doctor and Congressman 
Pitts apparently. I can't think of a bigger government 
regulation. So let us agree that in one hearing last week where 
we are against government regulation and another one this week 
we are for all kinds of government regulation. If you don't 
think it is a government regulation ask a doctor who has got to 
try to navigate this hearing. God bless the three of you, but 
it is complicated stuff because you are trying to shoehorn 
government into what is essentially a basic relationship that 
revolves around health care. It doesn't revolve around which 
funding stream is coming--of course this is complicated. Of 
course you guys have different view of this. And if you are a 
physician and I--you can't swing a dead cat around here without 
signing someone--well, I am speaking from a level of 
experience. I am a doctor, therefore I can tell you. I mean, 
stop that already. The bottom line about this is you are not 
any particular doctor for a particular client. I don't want 
anyone who is a doctor here in my operating room. You can just 
keep with your Congressman stick. It is more--that is better. I 
mean, what this is about is a fundamental philosophical 
agreement. And that is that if you are conservative and you 
believe in smaller, less intrusive government you have got to 
take a wild, wild, philosophical bank shot to get back into 
supporting this bill. I don't know how you do it. I really 
don't know how you can ever say you are conservative believing 
you should have this much of government involvement in a 
medical decision in a conversation. And I do have to say this. 
I know we read the Constitution that first day we were here and 
I am glad we did. You have to also basically say if you support 
this you don't believe in a right to privacy for at least one 
half of the country. And that is the bottom line. Now some 
people don't. Some people believe to this day and you know the 
right to privacy as my lawyer friends or people who were 
lawyers and portraying lawyers the fact is that there is--does 
and there is not explicit right to privacy. But I think most 
Americans of all political stripes believe there is a basic 
right to privacy. Is there anything more basic, more basic than 
your body? Is there anything more basic privacy there? Well, 
not according to--not according to many people. And that is the 
conversation here. And if you are on the side of the--saying 
you know what? I think government should have a limit on where 
they go. I think there should be a limit beyond which they 
should not pass, this means you do not support this bill bottom 
line. If you believe there is no limit, you can go anywhere, 
you can get into any personal relationship the government wants 
to get involved in they can we have got a bill for you and we 
are going to have others. But I have to tell you something. I 
would say to my colleagues and friends that if you are going to 
wring your hands and gaze at your naval about how we reduce 
regulation in this country and how we get government out of 
business, try being in the business of health care watching 
this debate. Try dealing with an emergency room situation where 
a woman is coming in there and the doctor is saying you know 
what? I believe this is a medically necessary procedure. I want 
to do it. But wait a minute. I got to go through this first. I 
got to go--and let me--and someone get CSPAN 9 tapes back for 
me so I can see if I am allowed to do it. There is too much 
government regulation in this. And I think the best thing to do 
is we should say let doctors and their patients make these 
decisions. And as far as I remember listening to health care 
debate, so did my Republican friends way back when last week.
    Mr. Pitts. Chair thanks gentleman. On the issue of the 
unanimous consent request, without objection.
    [The information appears at the conclusion of the hearing.]
    Mr. Burgess. Mr. Chairman, was there a question in that 
soliloquy? Should we let our panel respond?
    Mr. Pitts. Would one of the panelists like to respond to 
any of them? Mr. Johnson?
    Mr. Johnson. I think you are forgetting someone, Mr. 
Weiner. What about this little girl here? This is from the 
Grand Jury Report. You talk about the privacy of the body? What 
about her body? You are forgetting someone. There is another 
human individual, a member of the human family who is involved 
here. That is why it is different than----
    Mr. Weiner. When you say another, Mr. Johnson, are you 
stipulating that the woman has rights here?
    Mr. Johnson. Of course the woman has rights including the 
right to life. But he unborn child is also a member of the 
human family.
    Mr. Weiner. And Mr. Johnson, do you think that a bunch of 
members of Congress should make that determination where that 
line is?
    Mr. Johnson. We think that the Congress makes laws for all 
members of the human family.
    Mr. Weiner. Well that is a yes. You think 435 fairly well-
to-do, mostly white men should make that decision?
    Mr. Johnson. I think the elected representative of the 
American people should establish----
    Mr. Weiner. Should make decisions for that woman and child?
    Mr. Johnson. Can I finish my answers may I not?
    Mr. Weiner. Well, it doesn't sound terribly enticing, no.
    Mr. Pitts. Chair thanks gentleman. Chair recognizes the 
gentlelady from Colorado, Ms. DeGette for 5 minutes.
    Ms. DeGette. Thank you so much, Mr. Chairman. I have quite 
a number of questions for all the witnesses so if you can try 
to keep your answers short I would appreciate it. Professor 
Rosenbaum, you have written extensively on issues around 
insurance law as part of your academic career. Correct?
    Ms. Rosenbaum. I have.
    Ms. DeGette. Now, right now under current law--is your 
microphone on? We are having----
    Ms. Rosenbaum. It is.
    Ms. DeGette. Under current law right now employers can--
many employers can take tax credits for offering their 
employees insurance plans. Correct?
    Ms. Rosenbaum. It is deductible.
    Ms. DeGette. And so they are getting a federal benefit for 
offering their employees insurance. Correct?
    Ms. Rosenbaum. Indeed.
    Ms. DeGette. Right now?
    Ms. Rosenbaum. Yes.
    Ms. DeGette. And the insurance plans that many employers 
offer to their employees include a full range of reproductive 
services including abortion coverage. Correct?
    Ms. Rosenbaum. That is correct.
    Ms. DeGette. And the Hyde amendment as it is currently 
written even in the Affordable Care Act and the other bills 
does not preclude people from getting tax credits for offering 
insurance plans that offer a full range of reproductive 
services?
    Ms. Rosenbaum. Tax Advantage Plans are outside the Hyde 
amendment.
    Ms. DeGette. Now, in addition, most insurance policies 
don't break out abortion services. They just say any medically 
necessary services. So if it is legal and it is necessary then 
the insurance will cover it. Correct?
    Ms. Rosenbaum. Correct.
    Ms. DeGette. Now, Professor, the Hyde amendment says that 
no federal funds shall be used to pay for abortions with the 
exception of rape, incest, and the life of the mother. Correct?
    Ms. DeGette. And that does not include indirect 
expenditures like tax credits or tax deductions. Is that right?
    Ms. Rosenbaum. It does not.
    Ms. DeGette. So under this legislation, this Pitts bill, 
for the exchanges and then under the Smith bill which is also 
being examined what it would do, it would go far beyond the 
established law of current law which says no direct federal 
funds shall be used for abortion. And it would then define a 
whole different set of benefits that people get in the way of 
tax relief as somehow being federal funding. Is that correct?
    Ms. Rosenbaum. Correct.
    Ms. DeGette. And so is it your opinion, Professor, that 
what that would do in essence would be to either if employers 
wanted to offer people plans in the exchange that offered 
abortion coverage they couldn't get the tax credits. Right?
    Ms. Rosenbaum. Correct.
    Ms. DeGette. So then those employers would be paying higher 
taxes. Wouldn't they? Because they wouldn't get the----
    Ms. Rosenbaum. They offered a product that was not tax 
advantaged anymore.
    Ms. DeGette. Right. So basically employers would be forced 
to purchase plans that didn't offer a legal medical service 
that they are offering now in order to get federal tax relief. 
Right?
    Ms. Rosenbaum. The other way of saying it is that plans--
that companies would stop selling products that offered----
    Ms. DeGette. Right. And so that is far beyond what the Hyde 
amendment says.
    Ms. Rosenbaum. Yes.
    Ms. DeGette. OK. Than you very much. Now, Professor Alvare, 
I wanted to ask you a question following up on what Mr. Dingell 
and several other people were asking you. Section 1303 of the 
Affordable Care Act talks about the treatment of abortion under 
the Act. But under the Pitts bill, this bill that we are 
talking about today, the words regarding abortion in Section 
1303 are struck and instead the language that says protecting 
conscience rights is inserted. Correct?
    Ms. Alvare. That is correct and----
    Ms. DeGette. Is it your understanding as sort of an 
ethicist that conscience rights could be talking about more 
issues other than abortion? For example, Catholic providers 
conscience rights around birth control and family planning and 
contraception--it could be interpreted that way couldn't it?
    Ms. Alvare. I don't think so, Congresswoman.
    Ms. DeGette. Why not?
    Ms. Alvare. Because the purpose of that was to strike a 
heading that was not properly characterizing what went before 
it. And at the same time, to extend non-preemption to State 
laws not only regarding abortion and abortion coverage but 
conscience.
    Ms. DeGette. So OK. So I am sorry, you can supplement your 
answer. I apologize. So you don't think so?
    Ms. Alavare. That is all of it.
    Ms. DeGette. OK. Mr. Johnson, I just have a couple 
questions for you. Now, you have been the head of the National 
Right to Life Committee since 1981. Correct?
    Mr. Johnson. No, I am not the head of the National Right to 
Life Committee. I am the legislator.
    Ms. DeGette. OK. I am sorry. You are the legislative 
director. Thank you for clarifying that. Do you support a 
constitutional amendment to overturn Roe v. Wade? Yes or no?
    Mr. Johnson. Our organization has supported constitutional 
amendment----
    Ms. DeGette. Do you support a constitutional amendment to 
overturn Roe v. Wade?
    Mr. Johnson. Properly drafted, yes.
    Ms. DeGette. Yes or no?
    Mr. Johnson. I said if properly drafted.
    Ms. DeGette. Yes or no?
    Mr. Johnson. There have been many amendments and some we 
support. Some we don't.
    Ms. DeGette. Do you support--OK. But you would overturn Roe 
v. Wade, right?
    Mr. Johnson. We would overturn Roe v. Wade.
    Ms. DeGette. Now, do you agree with Professor Alvare that 
abortion should be outlawed. Correct?
    Mr. Johnson. The position of the National Right to Life 
Committee----
    Ms. DeGette. No, what is your position, sir?
    Mr. Johnson. No, I represent the National Right to Life 
Committee.
    Ms. DeGette. So you are not going to answer that question? 
Would that be correct?
    Mr. Johnson. I am going to answer it. I am just testifying 
on the behalf of the National Right to Life Committee.
    Ms. DeGette. OK. So what is their position? Do they support 
banning abortion?
    Mr. Johnson. The exception that should be allowed is to 
save the life of the mother if there is indeed such a case. 
Which you have heard disputed.
    Ms. DeGette. OK. So you would not support an exemption for 
rape. Correct?
    Mr. Johnson. That is correct. Our policy practice would not 
be----
    Ms. DeGette. And you would not support--you as an 
organization would not support an exemption for incest. Is that 
correct?
    Mr. Johnson. That is correct.
    Ms. DeGette. Thank you very much, Mr. Chairman. I 
appreciate your comity in letting me participate.
    Mr. Pitts. Chair thanks the lady and recognize the 
gentleman from Ohio, Mr. Latta for 4 minutes.
    Mr. Latta. Thank you very much, Mr. Chairman. At this time 
I would like to yield 5 minutes to Dr. Burgess.
    Mr. Burgess. I thank the gentleman for yielding. Let us 
just come back to the issue we are here discussing today and it 
is not overturning Roe v. Wade. It is dealing with the 
aftermath that we were dealt in a very poorly drafted piece of 
legislation that was signed into law on March 23 of last year. 
And because of some of the unfinished business, the way that 
was pushed through so late in the night we are here today to 
make certain that we all understand what the parameters are, 
what is required of each of us, and what the Federal Government 
is going to be required to cover and reimburse for. So I do 
think that while I might agree with Mr. Weiner and it hurts me 
to say this, but I might agree with Mr. Weiner on some points. 
And in fact with no thought to my personal safety I would go 
into an operating room if it were required to save his life 
even though I am licensed and uninsured. But at the same time 
what we are talking about here today is the use of federal 
funds, taxpayer dollars to fund this procedure. And there have 
been correctly some parameters and boundaries set around this 
since 1976. And we are here to help the President see the 
execution of his Executive order and make certain that the 
spirit of it is upheld not just this year, but next year and 
the year after. And even if there is a different president in 
the White House and a different set of Executive orders that 
the spirit of this Executive order will continue to be carried 
out. Now, let me just ask a general question, but probably it 
goes to Mr. Johnson. Does anyone really want to force someone 
to perform a procedure of termination of pregnancy if it is 
against their will to do so?
    Mr. Johnson. Dr. Burgess, I have heard remarks from both 
sides here today about no one would want to do that. And I can 
only implore the members of the Committee who really want to 
explore that issue to read this document: Health Care Refusals. 
It is put out by the National Health Law Program, 2010. 
Professor Rosenbaum was on the advisory committee which 
according to the acknowledgments played a very active role. It 
is an amazing document. I just read it myself the other day for 
the first time. It is about 100 pages. And it is relentless in 
attacking all forms of conscience laws. They absolutely argue 
that it is an obligation that should be enforced both on 
institutions and individuals to perform abortions to provide 
abortions. This should be enforced through law, through 
malpractice law, through licensure requirements, and through 
diverse other means. There are even attacks on physicians who 
simply share their personal views about the sanctity of human 
life with their patients. That is deemed to be a breech of the 
ethics as defined by these people. The ACLU has a very active 
project as Mr. Dorflinger from the Catholic Bishops Conference 
testified before the other committee yesterday to try to compel 
Catholic hospitals to either get with the program on abortion 
or get out of town. They do want to basically drive people out 
of health care if you will not get with their program and 
ideology of collaborating and actively participating in killing 
unborn members of the species Homo sapiens. And if you think I 
am engaged in hyperbole, I implore you to read this report.
    Mr. Burgess. I thank you for bringing it to our attention. 
Certainly, Mr. Chairman, if the committee could be provided a 
copy of that I for one would be happy to look at it. Now, if--
Mr. Johnson, if this bill does not pass--well, let me just ask 
you a question. Do you really think that hospitals are going to 
not allow emergency treatment for women who show up in the 
emergency room who are suffering a complication? And we have 
heard that professed by the other side but is that the intent 
of this legislation?
    Mr. Johnson. I believe they are going to continue to comply 
with EMTALA and just with good medical practice which is to 
recognize that they have two patients and the law could not be 
more explicit. Professor Alvare read it earlier. It says you 
seek to help to save both the mother and her unborn child. It 
uses that term unborn child. And I don't see how any fair 
reading of that law could mean that that is a mandate to take 
the unborn child out in pieces. OK?
    Mr. Burgess. And I appreciate your answer. Just because I 
am about to run out of time, again, I want to stress that this 
law is to put the boundaries in place that the President asked 
for in the Executive order. This hearing, this legislation is 
not about overturning Roe v. Wade. It is not about doing 
anything other than helping the President accomplish his goal 
that taxpayer funding will not be used for the performance of 
elective termination of pregnancy. Thank you, Mr. Chairman. I 
will yield back my--I will yield back to the gentleman from 
Ohio.
    Mr. Pitts. Chair thanks the gentleman. Every member was 
emailed with the hearing notice a copy of the discussion draft. 
If any of you did not have a copy we will be happy to provide 
it for you. That in conclusion I would like to thank all of the 
witnesses and all of the members that participated in today's 
hearing. I remind the members that they have 10 business days 
to submit questions for the record, and I ask the witnesses all 
agree to respond promptly to those questions. Again, I would 
like to thank Mr. Pallone, all the members for the civil tone 
of the hearing on such a controversial issue. The subcommittee 
hearing is adjourned.
    [Whereupon, at 4:20 p.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]

                 Prepared Statement of Hon. Joe Barton

    Thank you Chairman for holding this important hearing. As 
ChairmanEmeritus, I stand with Chairman Upton and Subcommittee 
Chairman Pitts in support of legislation to prevent federal 
funding for abortion or abortion coverage under the Patient 
Protection and Affordable Care Act (PPACA).
    It has been 38 years since the United States Supreme Court, 
in Roe v. Wade, determined that the U.S. Constitution protects 
a woman's right to terminate her pregnancy. Three years after 
this legalization of abortion, the Supreme Court, in 3 related 
rulings, determined that states have neither a statutory or 
moral constitutional obligation to fund elective abortions or 
provide access to public facilities for such abortions \i\. In 
Harris v. McRae, the Court also indicated that there is no 
statutory or constitutional obligation of the states or the 
federal government to fund necessary abortions.
---------------------------------------------------------------------------
    \i\ (Beal v. Doe, 432 U.S. 438 [1977], Maher v. Roe, 432 U.S. 464 
[1977]; and Poelker v. Doe, 432 U.S. 519 [1977])
---------------------------------------------------------------------------
    In the 111th Congress, during the debate of the various 
health care reform bills, public funding for abortions and the 
Hyde Amendment were hotly debated and discussed. Republicans 
were firmly told that federal dollars would not be used H.R. 
3962, the Affordable Health Care for America Act, was to 
include the Stupak-Pitts Amendment which preserved the Hyde 
Amendment. The Patient Protection and Affordable Care Act, 
which is now law, does not include the Hyde Amendment. In fact, 
all the Patient Protection and Affordable Care Act requires is 
that at least one plan not cover abortions. The language 
requires that those who are enrolled in a plan that covers 
abortion make separate payments into an account that will be 
used for abortions, therefore creating public and ``private'' 
funds. However, just because the funds are put into another 
account does not mean they are not federal dollars subsidizing 
abortions. Regardless of what account these federal dollars to 
put into, they're still taxpayer dollars being used to pay for 
abortions. PPACA also includes language which could allow the 
Health Resources and Services Administration (HRSA) to define 
abortion as ``preventative care.''
    While the House has voted to repeal PPACA, in its entirety, 
the Senate voted against a full repeal. So, now we are left 
with the task of repealing the sections of PPACA that we can 
and reforming others. I think the issue of abortion funding is 
one of the top priorities for repealing and reforming. American 
taxpayers should not be forced to fund elective abortions, nor 
should doctors who have moral or religious objections be forced 
to perform abortions. I supported the Stupak-Pitts Amendment; I 
have also cosponsored the Protect Life Act.
    I look forward to hearing from our witnesses and working to 
repeal these provisions of PPACA.
                              ----------                              


              Prepared Statement of Hon. Marsha Blackburn

    Mr. Chairman, I would like to thank you for holding this 
hearing and I welcome our witnesses. I am pleased that this 
Subcommittee will examine federal funding of abortion services 
as provided by the Patient Protection and Affordable Care Act 
(PPACA).
    I have long held the belief that unborn lives should be 
protected, and I do not condone the use of taxpayer dollars to 
support elective abortions. Furthermore, Congress should 
respect the right of conscience and not force individuals or 
organizations to violate their personal and moral convictions 
by having to support abortion services for fear of being 
penalized by federal or state governments.
    The right of conscience has long been protected in this 
country under the Hyde amendment and is a tradition that this 
Committee should seek to restore to all health care 
professionals. Some may argue that the Hyde amendment is no 
longer necessary after President Obama signed an Executive 
Order banning the use of federal funding of abortions. However, 
as you will see in my questioning, even former White House 
Chief of Staff Rahm Emanuel has confirmed that this Executive 
Order will not prevent taxpayers from funding abortions in 
PPACA since the Executive Order does not ``carry the force of 
law.''
    Mr. Chairman, I thank you for bringing this issue before 
the Committee today and I urge my colleagues to join me in 
ensuring that taxpayers do not fund abortion and the right of 
conscience is restored.
    Thank you Mr. Chairman and I yield back the balance of my 
time.
                              ----------                              

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               Prepared Statement of Hon. Edolphus Towns

    Mr. Chairman, Ranking Member Pallone, and distinguished 
colleagues--thank you for being here today to discuss Chairman 
Pitts' proposal to amend the Affordable Care Act regarding 
abortion coverage.
    The proposed bill, the Protect Life Act, claims to 
unambiguously state that no federal funds will be used to pay 
for abortion services. However, under current law, this is 
already the case. It is already illegal to pay for elective or 
``therapeutic'' abortion using federal funds. This Act does 
nothing to change that fact.
    What the Act does do is impose unprecedented limitations on 
abortion coverage, while restricting access to abortion 
services for all women - not just those who purchase coverage 
through a state health-insurance exchange. It makes it 
virtually impossible for insurance companies in state health-
insurance exchanges to offer abortion coverage, even to women 
paying entirely with their own money, and would forbid abortion 
coverage for millions of middle-and low-income women who will 
receive partial subsidies to purchase insurance.
    In addition, the bill penalizes private insurers who offer 
comprehensive insurance products for sale in multiple states. 
It imposes crippling administrative burdens on plans that 
choose to cover abortion care. Namely, under this Act, if an 
insurance company offers a plan with abortion coverage, it must 
also offer a second, identical plan without abortion coverage, 
greatly increasing an insurer's administrative overhead. The 
likely outcome under this Act, is that a private insurance 
company would simply choose to not offer any health plans that 
cover abortion services.
    Most importantly, the bill expands federal conscience 
protections, namely by overriding critical federal protections 
provided in the Emergency Medical Treatment and Labor Act 
(EMTALA). These protections were written with women in mind, 
and require that all patients, regardless of ability to pay, be 
provided life-saving, stabilizing treatment when they arrive at 
an emergency room. In the event that an abortion is medically 
necessary to save the mother's life, one will be performed in 
this narrow circumstance.
    Overriding EMTALA in the name of ``conscience'' is a very 
dangerous precedent. The Protect Life Act would effectively 
change current federal law to allow hospitals to refuse 
treatment to a woman. Furthermore, it would allow, under the 
guise of ``conscience'' a hospital to refuse to refer a woman 
to another facility that would be able to save her life.
    I am not against ``conscience'' laws. I am, however, 
against the use of these laws to allow doctors to watch their 
patients die.
    I have serious concerns with this bill. I hope that Members 
on both sides of the aisle can work together, to ensure access 
to quality care for all.
    Thank you, Mr. Chairman. I yield the balance of my time.
                              ----------                              

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