[House Report 112-38]
[From the U.S. Government Publishing Office]
112th Congress Rept. 112-38
HOUSE OF REPRESENTATIVES
1st Session Part 1
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NO TAXPAYER FUNDING FOR ABORTION ACT
_______
March 17, 2011.--Ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3) to prohibit taxpayer funded abortions and to
provide for conscience protections, and for other purposes,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 4
Background and Need for the Legislation.......................... 4
Hearings......................................................... 9
Committee Consideration.......................................... 10
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 21
New Budget Authority and Tax Expenditures........................ 21
Congressional Budget Office Cost Estimate........................ 21
Performance Goals and Objectives................................. 22
Advisory on Earmarks............................................. 22
Section-by-Section Analysis...................................... 23
Changes in Existing Law Made by the Bill, as Reported............ 31
Dissenting Views................................................. 35
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``No Taxpayer Funding for Abortion
Act''.
SEC. 2. PROHIBITING TAXPAYER FUNDED ABORTIONS AND PROVIDING FOR
CONSCIENCE PROTECTIONS.
Title 1, United States Code is amended by adding at the end the
following new chapter:
``CHAPTER 4--PROHIBITING TAXPAYER FUNDED ABORTIONS AND PROVIDING FOR
CONSCIENCE PROTECTIONS
``Sec.
``301. Prohibition on funding for abortions.
``302. Prohibition on funding for health benefits plans that cover
abortion.
``303. Prohibition on tax benefits relating to abortion.
``304. Limitation on Federal facilities and employees.
``305. Construction relating to separate coverage.
``306. Construction relating to the use of non-Federal funds for health
coverage.
``307. Non-preemption of other Federal laws.
``308. Construction relating to complications arising from abortion.
``309. Treatment of abortions related to rape, incest, or preserving
the life of the mother.
``310. Application to District of Columbia.
``311. No government discrimination against certain health care
entities.
``Sec. 301. Prohibition on funding for abortions
``No funds authorized or appropriated by Federal law, and none of the
funds in any trust fund to which funds are authorized or appropriated
by Federal law, shall be expended for any abortion.
``Sec. 302. Prohibition on funding for health benefits plans that cover
abortion
``None of the funds authorized or appropriated by Federal law, and
none of the funds in any trust fund to which funds are authorized or
appropriated by Federal law, shall be expended for health benefits
coverage that includes coverage of abortion.
``Sec. 303. Prohibition on tax benefits relating to abortion
``For taxable years beginning after the date of the enactment of this
section--
``(1) no credit shall be allowed under the internal revenue
laws with respect to amounts paid or incurred for an abortion
or with respect to amounts paid or incurred for a health
benefits plan (including premium assistance) that includes
coverage of abortion,
``(2) for purposes of determining any deduction for expenses
paid for medical care of the taxpayer or the taxpayer's spouse
or dependents, amounts paid or incurred for an abortion shall
not be taken into account, and
``(3) in the case of any tax-preferred trust or account the
purpose of which is to pay medical expenses of the account
beneficiary, any amount paid or distributed from such an
account for an abortion shall be included in the gross income
of such beneficiary.
``Sec. 304. Limitation on Federal facilities and employees
``No health care service furnished--
``(1) by or in a health care facility owned or operated by
the Federal Government; or
``(2) by any physician or other individual employed by the
Federal Government to provide health care services within the
scope of the physician's or individual's employment,
may include abortion.
``Sec. 305. Construction relating to separate coverage
``Nothing in this chapter shall be construed as prohibiting any
individual, entity, or State or locality from purchasing separate
abortion coverage or health benefits coverage that includes abortion so
long as such coverage is paid for entirely using only funds not
authorized or appropriated by Federal law and such coverage shall not
be purchased using matching funds required for a federally subsidized
program, including a State's or locality's contribution of Medicaid
matching funds.
``Sec. 306. Construction relating to the use of non-Federal funds for
health coverage
``Nothing in this chapter shall be construed as restricting the
ability of any non-Federal health benefits coverage provider from
offering abortion coverage, or the ability of a State or locality to
contract separately with such a provider for such coverage, so long as
only funds not authorized or appropriated by Federal law are used and
such coverage shall not be purchased using matching funds required for
a federally subsidized program, including a State's or locality's
contribution of Medicaid matching funds.
``Sec. 307. Non-preemption of other Federal laws
``Nothing in this chapter shall repeal, amend, or have any effect on
any other Federal law to the extent such law imposes any limitation on
the use of funds for abortion or for health benefits coverage that
includes coverage of abortion, beyond the limitations set forth in this
chapter.
``Sec. 308. Construction relating to complications arising from
abortion
``Nothing in this chapter shall be construed to apply to the
treatment of any infection, injury, disease, or disorder that has been
caused by or exacerbated by the performance of an abortion. This rule
of construction shall be applicable without regard to whether the
abortion was performed in accord with Federal or State law, and without
regard to whether funding for the abortion is permissible under section
309 of this Act.
``Sec. 309. Treatment of abortions related to rape, incest, or
preserving the life of the mother
``The limitations established in sections 301, 302, 303, and 304
shall not apply to an abortion--
``(1) if the pregnancy is the result of an act of rape or
incest; or
``(2) in the case where a woman suffers from a physical
disorder, physical injury, or physical illness that would, as
certified by a physician, place the woman in danger of death
unless an abortion is performed, including a life-endangering
physical condition caused by or arising from the pregnancy
itself.
``Sec. 310. Application to District of Columbia
``In this chapter:
``(1) Any reference to funds appropriated by Federal law
shall be treated as including any amounts within the budget of
the District of Columbia that have been approved by Act of
Congress pursuant to section 446 of the District of Columbia
Home Rule Act (or any applicable successor Federal law).
``(2) The term `Federal Government' includes the government
of the District of Columbia.
``Sec. 311. No government discrimination against certain health care
entities
``(a) Nondiscrimination.--A Federal agency or program, and any State
or local government that receives Federal financial assistance (either
directly or indirectly), may not subject any individual or
institutional health care entity to discrimination on the basis that
the health care entity does not provide, pay for, provide coverage of,
or refer for abortions.
``(b) Health Care Entity Defined.--For purposes of this section, the
term `health care entity' includes an individual physician or other
health care professional, a hospital, a provider-sponsored
organization, a health maintenance organization, a health insurance
plan, or any other kind of health care facility, organization, or plan.
``(c) Remedies.--
``(1) In general.--The courts of the United States shall have
jurisdiction to prevent and redress actual or threatened
violations of this section by issuing any form of legal or
equitable relief, including--
``(A) injunctions prohibiting conduct that violates
this section; and
``(B) orders preventing the disbursement of all or a
portion of Federal financial assistance to a State or
local government, or to a specific offending agency or
program of a State or local government, until such time
as the conduct prohibited by this section has ceased.
``(2) Commencement of action.--An action under this
subsection may be instituted by--
``(A) any health care entity that has standing to
complain of an actual or threatened violation of this
section; or
``(B) the Attorney General of the United States.
``(d) Administration.--The Secretary of Health and Human Services
shall designate the Director of the Office for Civil Rights of the
Department of Health and Human Services--
``(1) to receive complaints alleging a violation of this
section;
``(2) subject to paragraph (3), to pursue the investigation
of such complaints in coordination with the Attorney General;
and
``(3) in the case of a complaint related to a Federal agency
(other than with respect to the Department of Health and Human
Services) or program administered through such other agency or
any State or local government receiving Federal financial
assistance through such other agency, to refer the complaint to
the appropriate office of such other agency.''.
SEC. 3. AMENDMENT TO TABLE OF CHAPTERS.
The table of chapters for title 1, United States Code, is amended by
adding at the end the following new item:
``4. Prohibiting taxpayer funded abortions and providing for
conscience protections..............................301''.
Purpose and Summary
For more than 30 years, a patchwork of policies has
regulated Federal funding for abortion. Amendments have been
added to various appropriations bills that prohibit the Federal
funding of abortions through the programs funded by those
appropriations bills. The time has come for Congress to pass
one piece of legislation to prohibit Federal funding of
elective abortion, no matter the source in the Federal system
of funding. H.R. 3, with the exception of a few narrow
categories that have been accepted for many years, provides
that the Federal Government shall not make taxpayers pay for,
subsidize, encourage, or facilitate abortions or insurance
coverage that includes abortion.
Background and Need for the Legislation
H.R. 3 was introduced by Reps. Chris Smith (R-NJ) and
Daniel Lipinski (D-IL) on January 20, 2011.
THE AMERICAN PEOPLE OPPOSE FEDERAL PAYMENTS AND
FEDERAL ENCOURAGEMENT OF ABORTION
The American people overwhelmingly oppose Federal funding
of abortions.
A 2010 Zogby/O'Leary poll found that 77% of Americans
believe that Federal funds should never pay for abortion or
should pay only to save the life of the mother.\1\
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\1\Zogby/O'Leary, January 19-21, 2010, The O'Leary Report, August/
September 2010, Volume 5, Issue 4, http://www.olearyreport.com/media/
pdf/OLR_Vol5Issue4_AugustSeptember2010
Final.pdf
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A September 2009 International Communications Research poll
asked, ``If the choice were up to you, would you want your own
insurance policy to include abortion?'' Among respondents, 68%
answered no and only 24% answered yes.\2\
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\2\International Communications Research, September 16-20, 2009,
1043 adults (margin of error: 3.0%).
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HUNDREDS OF THOUSANDS OF ABORTIONS WOULD BE PAID FOR EACH YEAR BY
FEDERAL TAXPAYERS WITHOUT THE POLICIES THAT H.R. 3 MAKES PERMANENT
In 1993 the Congressional Budget Office estimated that the
Federal Government would pay for as many as 675,000 abortions
each year without the Hyde Amendment and other measures in
place at the time to prevent taxpayer funding of abortion in
Federal programs.\3\ By contrast, in 2008 there were 425
abortions funded by the Federal Government (through Medicaid)
and in 2009 there were 220 Medicaid-financed abortions.\4\ It
is axiomatic that when government subsidizes conduct, it
encourages it. Our tax code is replete with pertinent examples.
The Supreme Court in Maher v. Roe acknowledged the truth of
this proposition in the context of abortion when it equated
government funding of an activity with government encouragement
of that activity.\5\
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\3\Robert D. Reischauer, Director, Congressional Budget Office,
Letter to the Congressman Vic Fazio (D-Ca) (July 19, 1993).
\4\FY 2011 Moyer Report, submitted by the Office of the Assistant
Secretary for Financial Resources, U.S. Department of Health and Human
Services, February 2010, at 106.
\5\Maher v. Roe, 432 U.S. 464, 475 (1977).
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According to recent studies, when government funding for
abortion is not available under Medicaid or the state
equivalent program, conservative estimates are that at least
one-fourth of the Medicaid-eligible women who would otherwise
procure federally funded abortions, carry their babies to term.
One abortion advocacy group, the National Abortion and
Reproductive Rights Action League (NARAL), has claimed that the
effect of a denial of public funding on abortion reductions is
even greater, around 50 percent. For example, a 2010 NARAL
factsheet contains this statement:
A study by the Guttmacher Institute shows that
Medicaid-eligible women in states that exclude abortion
coverage have abortion rates of about half of those of
women in states that fund abortion care.\6\
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\6\``Discriminatory Restrictions on Abortion Funding Threaten
Women's Health,'' NARAL Pro-Choice America Foundation factsheet
(January 1, 2010) (citing Rachel K. Jones et al., Patterns in the
Socioeconomic Characteristics of Women Obtaining Abortions in 2000-
2001, Persp. on. Sexual & Reprod. Health 34 (2002)).
Using a conservative 25 percent abortion-reduction figure,
well over one million Americans are alive today because of the
Hyde Amendment.\7\
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\7\See ``Whose Choice? How the Hyde Amendment Harms Poor Women,''
Center for Reproductive Rights, 2010, at 4, available at http://
reproductiverights.org/en/feature/whose-choice-download-report (stating
that ``[b]ecause of the Hyde Amendment, more than a million women''
have not had abortions they may have had otherwise). See also The Heart
of the Matter: Public Funding Of Abortion for Poor Women in the United
States, by Heather D. Boonstra, Guttmacher Policy Review, Volume 10,
Number 1 (Winter 2007) (``Studies published over the course of two
decades looking at a number of states concluded that 18-35% of women
who would have had an abortion continued their pregnancies after
Medicaid funding was cut off.'').
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H.R. 3 IS WORKABLE
H.R. 3 will ensure that American taxpayers are not forced
to be involved in funding what many consider to be the
destruction of innocent human life through abortion on demand.
The ``No Taxpayer Funding for Abortion Act'' will establish a
government-wide statutory prohibition on funding abortion or
insurance coverage that includes abortion. This comprehensive
approach will reduce the need for the numerous separate
abortion-funding policies and ensure that no program or agency
is exempt from this important safeguard.
This comprehensive approach is administratively workable,
despite critics' claims. Insurers have been operating under the
limits of the Hyde Amendment and the Hyde-companion policy that
applies to the Federal Employee Health Benefits Program for
decades. As CQ recently reported, ``Most people with employer-
sponsored insurance also must pay for abortions out of their
own pocket. `Most insurers offer plans that include this
coverage, but most employers choose not to offer it as part of
their benefits package,' said Robert Zirkelbach, a spokesman
for America's Health Insurance Plans, the insurance industry's
trade association.''\8\
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\8\CQ Today (July 15, 2009).
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H.R. 3 CONTINUES LONG-STANDING FEDERAL POLICIES
H.R. 3 will make permanent the policies that have
previously been enacted on a case-by-case basis. Provisions
that currently rely on regular re-approval include:
1) Lthe Hyde amendment, which prohibits funding for
elective abortion coverage through any program funded
through the annual Labor, Health and Human Services
Appropriations Act;
2) Lthe Smith FEHBP amendment, which prohibits funding
for health plans that include elective abortion
coverage for Federal employees;
3) Lthe Dornan amendment, which prohibits use of
congressionally appropriated funds for abortion in the
District of Columbia; and
4) Lother policies such as the restrictions on elective
abortion funding through the Peace Corps and Federal
prisons.
H.R. 3 also codifies the Hyde-Weldon conscience clause that
has been part of the Hyde Amendment since 2004. The conscience
clause ensures that governmental recipients of Federal funding
do not discriminate against health-care providers, including
doctors, nurses and hospitals, because the providers do not
provide, pay for, provide coverage for, or refer for abortions.
THE PATIENT PROTECTION AND AFFORDABLE CARE ACT FAILS TO CONTAIN ANY
PROHIBITIONS ON THE USE OF TAXPAYER MONEY TO FUND ABORTIONS
During the debate last Congress on the Patient Protection
and Affordable Care Act (PPACA), Rep. Joe Pitts (R-PA) and
former Rep. Bart Stupak (D-MI) offered an amendment that would
have prohibited government funding of abortion had it been
included in the version of the health-care reform that became
law. The House-proposed health-care legislation, H.R. 3200,
America's Affordable Health Choices Act, radically departed
from the current Federal policy of not paying for elective
abortion or subsidizing plans that cover abortion. However, at
the last minute, the Democratic leadership permitted a vote on
the Stupak/Pitts amendment, which passed by a vote of 240-194.
The Senate then took up another bill (H.R. 3590) which did not
include the Stupak/Pitts amendment. Instead it contained
provisions designed to cloak the funding for abortion coverage.
The Senate bill was signed into law as P.L. 111-148. The law is
a drastic break from longstanding Federal policy. The Hyde
Amendment has, for more than 30 years, prevented programs
funded by the annual Health and Human Services Appropriations
bill from financing abortion.
The PPACA passed the House only after a handful of
Democrats, led by former Rep. Stupak, who claimed to oppose the
Senate bill's Federal funding of abortion, agreed to a deal in
which the text of the Senate bill would not change, but the
President would sign an executive order that would allegedly
negate the text of the Senate bill. It is black-letter
constitutional law, however, that executive order cannot trump
the text of legislation enacted by Congress.
In a recent interview with the Chicago Tribune editorial
board, the President's former chief of staff, Rahm Emanuel, was
asked questions about his commitment to the pro-abortion cause.
Mr. Emanuel emphasized that Executive Order 13535, the
Executive Order on abortion signed by President Obama in March
2010, ostensibly to eliminate the need for the pro-life Stupak
Amendment to be attached to PPACA, does not carry the force of
law, and as such, was approved by former House Speaker Nancy
Pelosi and others who oppose a ban on taxpayer funding of
abortion. Mr. Emanuel said ``I came up with an idea for an
executive order to allow the Stupak amendment not to exist in
law.''\9\ Clearly, then, the substance of the Stupak amendment
does not now exist in law, according to the person who served
as the chief of staff to President Obama at the time. Therefore
Congress needs to pass H.R. 3 to restore the long-standing ban
on taxpayer funding of abortions in law.
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\9\Chicago Tribune mayoral debate video (January 14, 2011),
available at http://www.wgntv.com/news/elections/mayor/editorial/(Pt.
10).
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FEDERAL FUNDING FOR ABORTION IN PPACA
The PPACA subsidizes abortion in private health plans and
can pay directly for abortion in new health programs.\10\ The
funds under that law are directly appropriated, not subject to
further appropriation through the HHS Appropriations bill, and
are therefore not subject to the Hyde Amendment's abortion
funding restriction.
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\10\For a chart of details of the various abortion funding
provisions in PPACA, see http://downloads.frcaction.org/EF/EF10C08.pdf.
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Here are some examples:
LPPACA appropriates $5 billion for high-risk
pool programs without a restriction on funding
abortion.\11\ The Pennsylvania, Maryland, and New
Mexico's high-risk pool plans approved by the Federal
Government did, in fact, contain coverage of elective
abortion. Only after the news of government-financed
abortions was reported in the press did the White House
tell these states to remove abortion from the list of
covered services.\12\
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\11\Patient Protection and Affordable Health Care Act (``PPACA''),
H.R. 3590, became P.L. 111-148, Section 1101.
\12\On July 14, 2010, HHS Spokesperson Jenny Backus issued a
statement saying that abortion would not be covered in the high risk
pool program in Pennsylvania. Then after other states approved abortion
funding, Nancy-Ann DeParle on July 29, 2010 blogged that abortion would
not be covered by the high risk pool program http://www.whitehouse.gov/
blog/2010/07/29/insurance-americans-with-pre-existing-conditions
LPPACA also authorized funding for community
health centers,\13\ and the enactment of the Health
Care and Education Reconciliation Act\14\ a week later
increased the amount of funding for these community
health centers to over $9 billion. The money
appropriated for community health centers can be used
to pay for elective abortions directly, as these funds
are not appropriated under the HHS Appropriations bill
and therefore is not subject to the Hyde Amendment.\15\
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\13\PPACA Section 10503.
\14\The Health Care and Education Reconciliation Act, 2010, H.R.
4872, became P.L. 111-152 on March 30, 2010 (``Reconciliation Act'').
\15\Reconciliation Act, Section 2303.
LPPACA appropriates $6 billion for loans and
grants for the creation of non-profit health co-
ops.\16\ Because the funds would not be appropriated by
the HHS Appropriations bill, they are not covered by
the Hyde Amendment and can be used to pay for elective
abortions.
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\16\PPACA, Section 1322.
LPPACA provides tax credits for qualified
health plans in each of the state exchanges.\17\
Section 1303, as amended, permits qualified health
plans to include coverage for elective abortions even
if they receive tax credits or cost-sharing
credits.\18\ This provision directly conflicts with the
principle of the Hyde Amendment and the restriction on
subsidizing health benefits plans that include abortion
through the Federal Employee Health Benefits Program
(FEHBP).\19\
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\17\PPACA, Section 1401 provides refundable tax credits and Section
1402 provides cost-sharing credits to purchase health plans.
\18\PPACA, Section 1303 as amended by Section 10104(c).
\19\Section 613, Division C of the Consolidated Appropriations Act,
2010 (P.L. 111-117).
LSection 1303, as amended, also permits
private insurance plans that receive Federal subsidies
to cover elective abortions. If the issuer of the plan
chooses to cover elective abortions and receive Federal
subsidies, then every individual who is part of that
plan is required to pay an abortion surcharge and the
insurance company will take that surcharge payment and
hold it in a special account. This gimmick does nothing
to cure the problem: it still allows Federal dollars to
be used to subsidize abortion coverage, and the Federal
Government still requires Americans enrolling in these
federally subsidized health plans to pay for other
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people's abortions.
LSecretary of Health and Human Services
Kathleen Sebelius said on December 22, 2009 said that
``everyone in the exchange would pay'' a ``portion of
their premium'' for ``abortion coverage.''\20\ (This
would not be the case for plans purchased without
abortion coverage.) The abortion surcharge is,
arguably, an even more egregious violation of the Hyde
Amendment principle.
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\20\See ``Sebelius Praises Abortion Accounting Trick in Senate
Bill,'' Real Clear Politics Video (last modified December 22,2009) in
which Secretary Sebelius states: ``That would be an accounting
procedure, but everybody in the exchange would do the same thing,
whether you're male or female, whether you're 75 or 25, you would all
set aside a portion of your premium that would go into a fund, and it
would not be earmarked for anything, it would be a separate account
that everyone in the exchange would pay. . . . [I]t's really an
accounting that would apply across the board and not just to women, and
certainly not just to women who want
to choose abortion coverage.'' http://www.realclearpolitics.com/video/
2009/12/22/sebelius_
praises_abortion_accounting_trick_in_senate_bill.html
LThe PPACA also created a new government-
controlled, multi-state plan to be run by the Director
of the Office of Personnel Management that can include
insurance plans with abortion coverage.\21\ This multi-
state plan is similar to the FEHBP for Federal
employees and will be operated by the Federal
Government, but without the FEHBP restriction on
coverage of elective abortion.
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\21\PPACA, Section 1334 as amended by Section 10104(q).
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THE PPACA PROVIDES FOR ACTUAL ``FEDERAL FUNDING'' OF ABORTIONS
The PPACA provides for actual ``federal funding'' of
abortions. Under the PPACA, tens of millions of Americans will
be eligible for Federal subsidies for private health plans, at
a projected total cost of $435 billion over 7 years (from 2014
through 2020). Without the enactment of H.R. 3, these Federal
subsidies will be used to pay for plans that cover abortion on
demand, in direct contradiction to the second principle of the
Hyde Amendment, which prohibits the use of funds to pay for
plans that cover elective abortion.
Although this Federal assistance is called a ``credit,'' it
is actually provided regardless of one's tax liability, so it
is akin to an entitlement program. An August 2010 chart by the
Congressional Budget Office evidences that 73% of the total
cost for the premium-assistance credits will be through direct
spending in excess of tax liability. In a separate publication,
CBO explains: ``PPACA, as amended, establishes new exchanges
for the purchase of health insurance and authorizes government
subsidies for such purchases for individuals and families who
meet income and other eligibility criteria. The subsidies for
health insurance premiums are structured as refundable tax
credits; the portions of such credits that exceed taxpayers'
liabilities are classified as outlays, while the portions that
reduce tax payments appear in the budget as reductions in
revenues.''\22\
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\22\CBO, ``The Budget and Economic Outlook: Fiscal Years 2011 to
2021, pp. 62-63 (January 2011).
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CBO projects that in year 2020, there will be $72.2 billion
in direct spending in premium-credit outlays, and $27.2 in
premium-credit revenue reductions. This means that 73% of the
total premium-assistance dollars will be in excess of
taxpayers' liabilities (72.2/99.4=73%).\23\
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\23\(When the projected $18.9 billion in direct spending on cost-
sharing subsidies (which are not a credit) is added to the $72.2
billion in direct spending for premium credit outlays, the resulting
$91.1 billion in direct spending equals 77% of the total dollars for
Exchange subsidies (91.1/118.3=77%).
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Moreover, these subsidies are advancable, meaning that
Federal monies will be sent by the Secretary of the Treasury on
a monthly basis directly to the health insurer to pay for the
subsidized plan, including plans that cover abortion on demand.
The PPACA integrates the U.S. Government into the process
of paying for health plans that cover abortion on demand.
Opponents are fighting so hard against H.R. 3 because they have
long opposed the Hyde Amendment's prohibition on Federal
funding of abortion, as well as funding of plans that cover
elective abortion. Now, opponents of H.R. 3 see the chance to
get billions of taxpayer dollars to start flowing to health
plans that cover abortion on demand. H.R. 3 will prevent that
from happening.
Hearings
The Judiciary Committee's Subcommittee on the Constitution
held 1 day of hearings on H.R. 3, the ``No Taxpayer Funding for
Abortion Act,'' on February 8, 2011. Testimony was received
from: Richard M. Doerflinger, Associate Director of the
Secretariat of Pro-Life Activities, United States Conference of
Catholic Bishops; Sara Rosenbaum, Harold and Jane Hirsh
Professor of Health Law and Policy and Chair of the Department
of Health Policy, The George Washington University School of
Public Health and Health Services; and Cathy Ruse, Senior
Fellow for Legal Studies, the Family Research Council.
Committee Consideration
On March 3, 2011, the Judiciary Committee met in open
session and ordered the bill H.R. 3 favorably reported, with an
amendment, by a rollcall vote of 23 to 14, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 3:
1. An amendment offered by Mr. Conyers to treat the
District of Columbia as a state for the purposes of the
provisions of the bill. Defeated 13 to 18.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
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Total....................................................... 13 18
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2. An amendment offered by Mr. Nadler to strike Section 303
of the bill. Defeated 14 to 20.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot...................................................... X
Mr. Issa........................................................
Mr. Pence....................................................... X
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 14 20
----------------------------------------------------------------------------------------------------------------
3. An en bloc vote on (a) an amendment offered by Ms.
Jackson Lee to provide a new Section 312 that states the bill
shall not take effect unless the Attorney General certifies to
Congress that it will not violate constitutionally guaranteed
rights, and (b) an amendment offered by Ms. Jackson Lee to
amend Section 309 to provide that the limitations in the bill
will not apply where continuing the pregnancy could result in
severe and long-lasting damage to a woman's health. Defeated 15
to 19.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot...................................................... X
Mr. Issa........................................................
Mr. Pence....................................................... X
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 15 19
----------------------------------------------------------------------------------------------------------------
4. An amendment offered by Mr. Nadler to condition the
effect of Section 303 on the President or his designee's
decision as to whether any individual, small business, or
employer taxes would be more than it would have been for such
taxable years had Section 303 not been in effect. Defeated 14
to 19.
ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren.....................................................
Mr. Chabot...................................................... X
Mr. Issa........................................................
Mr. Pence....................................................... X
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 14 19
----------------------------------------------------------------------------------------------------------------
5. An amendment offered by Mr. Nadler to provide that
Section 303 does not apply with respect to any health benefit
plan provided by or through an employer. Defeated 13 to 22.
ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot......................................................
Mr. Issa........................................................ X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch......................................................
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 13 22
----------------------------------------------------------------------------------------------------------------
6. An amendment offered by Mr. Nadler to provide that
Section 303 does not apply with respect to a taxpayer who is
self-employed. Defeated 13 to 22.
ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot......................................................
Mr. Issa........................................................ X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 13 22
----------------------------------------------------------------------------------------------------------------
7. An amendment offered by Mr. Nadler to amend Section 311
to provide protections for entities who provide, pay for,
provide coverage of, or refer for abortions. Defeated 13 to 19.
ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot......................................................
Mr. Issa........................................................ X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy.......................................................
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 13 19
----------------------------------------------------------------------------------------------------------------
8. An amendment offered by Mr. Johnson to amend Section 311
to provide the bill shall not take effect unless the Attorney
General submits a report to Congress setting forth the effect
of the bill on women's access to abortion and health benefits
coverage that includes coverage of abortion. Defeated 11 to 18.
ROLLCALL NO. 8
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 11 18
----------------------------------------------------------------------------------------------------------------
9. An amendment offered by Mr. Johnson to amend Section 303
to provide it does not apply in the case of a taxpayer who is
an individual, except to the extent that such amount is paid or
incurred in carrying on a trade or business. Defeated 14 to 19.
ROLLCALL NO. 9
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 14 19
----------------------------------------------------------------------------------------------------------------
10. An amendment offered by Mr. Quigley to amend Section
303 to apply only if the President or his designee submits to
Congress written certification that this section will not
affect the availability of abortion coverage offered by private
health insurance issuers or group health plans for individuals
who are not eligible for tax credits under title I of the
Patient Protection and Affordable Care Act of 2010. Defeated 12
to 21.
ROLLCALL NO. 10
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 12 21
----------------------------------------------------------------------------------------------------------------
11. An amendment offered by Ms. Chu to add new Section 312
that provides that nothing in the bill shall be construed to
relieve any health care provider from providing emergency
health care services as required by State or Federal law.
Defeated 14 to 21.
ROLLCALL NO. 11
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 14 21
----------------------------------------------------------------------------------------------------------------
12. An amendment offered by Ms. Wasserman Schultz to amend
Section 303 to provide that subsection (a) does not apply with
respect to a taxpayer who is a small business. Defeated 14 to
22.
ROLLCALL NO. 12
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 14 22
----------------------------------------------------------------------------------------------------------------
13. An amendment offered by Ms. Wasserman Schultz to amend
Section 309 to exclude abortions in the case of a woman with
cancer who needs a life saving treatment incompatible with
continuing the pregnancy. Defeated 15 to 21.
ROLLCALL NO. 13
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 15 21
----------------------------------------------------------------------------------------------------------------
14. To report H.R. 3 favorably. Passed 23 to 14.
ROLLCALL NO. 14
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Reed........................................................ X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
-----------------------------------------------
Total....................................................... 23 14
----------------------------------------------------------------------------------------------------------------
An amendment offered by Ms. Chu to add new Section 312 to
provide that the bill shall not restrict the ability of health
care providers to provide full disclosure of all relevant
information to patients making health care decisions or violate
the principles of informed consent and the ethical standards of
health care professionals was defeated by voice vote.
A manager's amendment was adopted by voice vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 3, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 15, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3, the ``No
Taxpayer Funding for Abortion Act.''
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 3--No Taxpayer Funding for Abortion Act.
H.R. 3 would amend Title 1 of the United States Code to
prohibit the use of Federal funds provided under Federal law to
pay for abortion services or for any health plan that provides
abortion services, except in cases of rape or incest, or when
the life of the pregnant woman is in danger. The bill would
prohibit any tax credit that results from amounts paid for
abortion services or, under certain circumstances, the costs of
a health benefits plan that includes coverage of abortion
services. Further, it would not allow the costs of abortion
services, other than under the excepted circumstances mentioned
above, to count as a deductible medical expense in determining
income tax liability. In addition, the bill would expand
nondiscrimination rules for health care providers that decline
to engage in abortion-related activities.
Enacting H.R. 3 could affect direct spending or revenues;
therefore, pay-as-you-go procedures apply. According to the
staff of the Joint Committee on Taxation, the bill would have
negligible effects on tax revenues. Similarly, CBO estimates
that any effects on direct spending would be negligible for
each year and over the 2011-2021 period.
H.R. 3 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on State, local, or tribal governments.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R. 3
prevents Federal taxpayer funds and other incentives from
supporting abortion.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 3 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following describes each section in H.R. 3. A manager's
amendment (an amendment in the nature of a substitute) was
offered by Rep. Trent Franks and adopted by the committee,
which makes several clarifying amendments to H.R. 3 which are
also described below.
Section 1. Provides the short title of the bill.
Section 2. Contains the following provisions prohibiting
taxpayer-funded abortions and providing conscience protections:
SECTION 301
Section 301. Prohibits Federal funding for abortion.
SECTION 302
Section 302. Prohibits funding for health benefits coverage
that includes coverage of abortion.
SECTION 303
Section 303. Clarifies, in Section 303(1), that the
prohibition on abortion and abortion coverage subsidies applies
to tax credits (a sum deducted from the total amount a taxpayer
owes) and, in Sections 303(2) and 303(3), ensures that abortion
is not incentivized through tax breaks in the form of itemized
deductions or pre-tax health accounts, such as health savings
accounts (HSAs), medical savings accounts (MSAs) or cafeteria
plans (company benefit programs that allow employees to use
pretax dollars to pay certain out-of-pocket expenses). Elective
abortions are not health care, and they should not be treated
as such by any Federal Government entity, including the I.R.S.
Federal tax policy should not incentivize abortion.
SECTION 303(1)
Section 303(1) provides that ``no credit shall be allowed
under the internal revenue laws with respect to amounts paid or
incurred for an abortion or with respect to amounts paid or
incurred for a health benefits plan (including premium
assistance) that includes coverage of abortion.''
The Patient Protection and Affordable Health Care Act
(``PPACA''), H.R. 3590, became P.L. 111-148. It is a radical
expansion of government involvement in health care, and as such
subsidies in the form of tax credits were included in the law
to help individuals and small businesses purchase health
insurance. These tax credits are a much more powerful incentive
because they are far more valuable than a tax deduction.
Whereas a tax deduction is a way to reduce your gross income
before determiningthe tax you owe, a tax credit is applied to
the actual amount of tax you owe. Had the Stupak-Pitts
amendment been included in the law, those tax credits would
have been prohibited from subsidizing insurance coverage that
included elective abortions. But the Stupak-Pitts amendment was
not enacted and instead PPACA contains provisions that result
in the largest deviation from the principles of the Hyde
Amendment in the 35 years since it was first enacted. Section
303 prohibits abortion coverage subsidies in the form of tax
credits and would also capture any other pre-existing tax
credits for health insurance that have gone previously
unnoticed and which are not covered by the Hyde Amendment. If
there is any doubt that these tax credits are actually
subsidies consider this. The CBO has indicated that by 2020 the
Federal Government will spend $72.2 billion in direct premium
credit outlays and $18.9 billion in direct spending for cost-
sharing subsidies.\24\
---------------------------------------------------------------------------
\24\Congressional Budget Office, CBO's August 2010 Baseline: Health
Insurance Exchanges (August 25, 2010), available at http://www.cbo.gov/
budget/factsheets/2010d/ExchangesAugust
2010FactSheet.pdf
---------------------------------------------------------------------------
Section 303(1) prevents tax credits for both abortion and
abortion coverage, because tax credits like those in PPACA, are
a dollar-for-dollar reduction in tax liability and are
therefore a form of subsidy. Individual premium assistance is
even paid when the individual has no tax liability at all. In
fact, according to the CBO by 2020, 73% of premium assistance
dollars made available under PPACA will be in the form of
direct spending, meaning that 73% of the dollars made available
as ``tax credits'' under PPACA law will actually be subsidies
over and above tax liability.\25\ This is the case because the
tax credits in PPACA are refundable, advancable tax credits
that are paid directly to the insurance company.
---------------------------------------------------------------------------
\25\Congressional Budget Office, CBO's August 2010 Baseline: Health
Insurance Exchanges (August 25, 2010), available at http://www.cbo.gov/
budget/factsheets/2010d/ExchangesAugust
2010FactSheet.pdf
---------------------------------------------------------------------------
Section 303(1) prohibits small business owners from
obtaining tax credits under PPACA for the cost of health care
plans which cover abortion.\26\ Under H.R. 3, individuals and
small businesses will be able to obtain tax credits on the
purchase of health plans that do not include abortion coverage.
---------------------------------------------------------------------------
\26\Patient Protection and Affordable Health Care Act (``PPACA''),
H.R. 3590, became P.L. 111-148. PPACA, Section 1421, as amended by
Section 10105(e), provides a small business tax credit for certain
employers to cover up to 35% of the cost health care plans from 2010
through 2013, and up to 50% of the cost of health plans after 2014 for
two consecutive years.
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SECTION 303(2)
Section 303(2) provides that ``for purposes of determining
any deduction for expenses paid for medical care of the
taxpayer or the taxpayer's spouse or dependents, amounts paid
or incurred for an abortion or for a health benefits plan that
includes coverage of abortion shall not be taken into
account.'' Tax deductions are amounts deducted from a person's
taxable income. Individuals who spend more than 7.5% of their
income on health costs are permitted to deduct those costs on
their individual tax return. The threshold for this
deductibility will soon increase to 10% under PPACA. Section
303(2) applies to tax deductions for abortion. The Internal
Revenue Code does not specify which expenses are eligible for
deduction, yet the IRS has, without congressional
authorization, listed ``abortion'' as a deductible medical
expense in its official publication on medical expenses.\27\
Section 303(2) would correct this abortion subsidy and prevent
deductions from an individual's tax return for abortions.
---------------------------------------------------------------------------
\27\Section 213(d) of the I.R.S. code allows individuals who
itemize to deduct medical expenses over 7.5% of their income, but does
not specify what services can be deducted. IRS Publication 502 for 2010
``Medical and Dental Expenses'' lists services which can be deducted
and includes ``abortion.'' See page 5 (http://www.irs.gov/pub/irs-pdf/
p502.pdf).
---------------------------------------------------------------------------
The manager's amendment struck the reference, in Section
303(2), to ``or for a health benefits plan that includes
coverage of abortion.'' The reason for that change is as
follows. Section 303(2) deals with tax deductions which reduce
a taxpayer's taxable income. The tax credits addressed in
Section 303(1) are a much more powerful incentive because they
are far more valuable than a tax deduction. Whereas a tax
deduction is a way to reduce your gross income before figuring
the tax you owe, a tax credit is applied to the actual amount
of tax you owe. This change will ensure that tax deductions are
not available for abortion, but will allow deductions for
employer-sponsored plans that cover abortion.\28\
---------------------------------------------------------------------------
\28\Because tax deductions are a much less powerful incentive than
tax credits, and because determining tax deduction eligibility is much
more complicated than determining tax credit eligibility, the manager's
amendment only covers tax credit eligibility as regards overall health
benefits plans that include abortion.
---------------------------------------------------------------------------
SECTION 303(3)
Section 303(3) provides that ``in the case of any tax-
preferred trust or account the purpose of which is to pay
medical expenses of the account beneficiary, any amount paid or
distributed from such an account for an abortion shall be
included in the gross income of such beneficiary.'' This
section involves the various tax-preferred savings accounts for
medical expenses. An individual's contributions to a tax-
preferred savings account sometimes are not included in
adjusted gross income, are not always deducted on a tax return,
and are often excluded from income by the employer. These tax-
preferred trusts or accounts include Health Savings Accounts
(HSAs), Medical Savings Accounts (MSAs) and Flexible Spending
Arrangements (FSAs) and other tax-favored health plans.\29\
Currently, I.R.S. Publication 969 specifies that qualified
medical expenses for these accounts include any deductable
medical expense listed in Publication 502, which lists
abortion, and so abortions are currently tax-preferred medical
expenses. If elective abortion is not health care, the I.R.S.
should not be giving tax-preferred status to the procedure and
Section 303(3) appropriately excludes abortion as a qualified
medical expense.
---------------------------------------------------------------------------
\29\See IRS Publication 969 for 2010 ``Health Savings Accounts and
Other Tax-Favored Health Plans,'' at 8 (http://www.irs.gov/pub/irs-pdf/
p969.pdf).
---------------------------------------------------------------------------
In sum, H.R. 3 prohibits the use of tax credits for
abortion or abortion coverage. It also prohibits individuals
from deducting the costs of abortion on their individual tax
returns. Finally, it prohibits the use of tax-preferred trusts
like flexible spending accounts (systems in which certain types
of expenses are not included in payroll or other taxes) and
health savings accounts (in which funds contributed to an
account are not subject to Federal income tax) to get a tax-
free abortion.
H.R. 3 does not affect the tax treatment of employer-
sponsored health insurance coverage as is permitted through the
general employer deduction and the employee exclusion. Employee
contributions to their premiums are taken out of their paycheck
as a pretax exclusion called the employer exclusion. Exclusions
for premiums are not addressed in H.R. 3. Employer-sponsored
plans consist of insurance provided by an employer in one of
two ways. One way allows the individual to exclude the cost of
premiums (either paid by themselves or by their employer) from
their gross income.\30\ This is a pre-tax benefit excluded from
income called the ``employee exclusion.'' H.R. 3 does not
affect exclusions for the cost of premiums. The second way
comes through the employer's general deduction which includes
deducting any costs associated with compensating employees.
Such deductions allow employers to deduct the cost of their
contributions to an employee's health insurance plan as a
business expense. Since Section 303(2) only ever applied to
deductions for expenses of taxpayers and their dependants, it
never captured employer deductions because those would not be
deductions for expenses of the taxpayer. However, with the
removal of the phrase ``health benefits plan that includes
coverage of abortion,'' Section 303(2) no longer addresses any
kind of deduction for the cost of health plans that include
abortion.
---------------------------------------------------------------------------
\30\The ``employer tax deduction'' found in IRS Code 162(a) allows
employers to write off the cost of their contribution to their
employees' health plans as well as other business expenses. The
``employee tax exclusion'' found in IRS Code 106(a) allows employees to
exclude from taxable income the amount their employer contributes to
their health care premiums.
---------------------------------------------------------------------------
Taken together, Sections 301, 302, and 303 of H.R. 3 will
stop government funding of abortions under PPACA, will prevent
tax credits for premiums paid to health plans that cover
abortions, and will prevent abortion from being given tax
preferred status. Direct payments for abortions under the high
risk pool program\31\ and in the community health centers will
be prohibited, and tax credits will not be given to subsidize
health plans with abortion coverage whether in private plans in
the state exchanges, in plans created under the co-op program,
or in the multi-state plan run by the government. These
Sections will also make permanent policies currently in place,
such as the Hyde amendment.
---------------------------------------------------------------------------
\31\Section 1101 of PPACA provides for the establishment of a
temporary high-risk insurance pool program for specified individuals
with preexisting conditions between the date on which the program is
established and January 1, 2014.
---------------------------------------------------------------------------
SECTION 304
Section 304. Prohibits abortion in Federal health
facilities (such as Department of Defense, Indian Health, and
Veterans Affairs hospitals) and ensures abortion is not
included in the services provided by individuals as a part of
their employment by the Federal Government. Under current law
these facilities do not provided abortions except in the cases
of rape, incest or to save the life of the mother. Section 304
codifies that policy.
SECTION 305
Section 305. Clarifies that the bill does not prohibit
individuals, entities, States or localities from purchasing
separate privately funded coverage that includes abortion.\32\
However, such coverage must be purchased using non-federal
funds and may not be purchased using matching funds required
for a federally subsidized program. For example, States may
provide abortion coverage to Medicaid participants, but may not
do so using Federal funds or State Medicaid matching funds, as
is the case under the Hyde Amendment today.
---------------------------------------------------------------------------
\32\Much of the mechanics of how health insurance will work under
PPACA will be worked out by Federal regulations and each state's unique
arrangements, but what follows is a typical example of how this
provision would work. A subsidy eligible individual goes to a health
exchange and chooses a plan that costs $300 a month for the premium. If
the plan does not include abortion they can use their subsidy of $200
(paid to the insurance company directly by the government), but they
are only covered if they also pay their share of the premium. In this
hypothetical, that's $100 a month. If they say ``no, I want the version
of the plan with abortion coverage,'' then they don't get the subsidy
(that is, the insurance company won't be able to get the $200 a month
from the government) and have to pay the full $300 themselves. Or, they
can take the subsidy for a non-abortion plan and only pay the $100,
with the government paying $200 a month, and then separately buy
another policy to cover abortion from the same company or from another
company. This option would be buying an abortion rider much like buying
dental or vision insurance separate from your health insurance. If
someone buys the abortion rider, they then pay the additional cost of
the rider separately. Individual subsidies may also vary based on
income level. If someone takes any subsidy, they have to go with a non-
abortion plan and none of their premium share can be used for abortion.
---------------------------------------------------------------------------
SECTION 306
Section 306. Clarifies that non-federal health insurance
providers may sell abortion coverage consistent with the
policies described in Section 305. Section 306 provides that
``Nothing in this chapter shall be construed as restricting the
ability of any non-Federal health benefits coverage provider
from offering abortion coverage, or the ability of a State or
locality to contract separately with such a provider for such
coverage, so long as only funds not authorized or appropriated
by Federal law are used and such coverage shall not be
purchased using matching funds required for a federally
subsidized program, including a State's or locality's
contribution of Medicaid matching funds.'' Section 306 makes
clear that the insurance industry may continue to provide
abortion coverage to those who purchase such coverage using
their own private money.
SECTION 307
Section 307. Clarifies that the bill preserves any stronger
abortion funding restrictions in existing law.
SECTION 308
Section 308. Clarifies that neither the bill nor any other
Federal law shall be used as a basis to require any State or
local government to provide or pay for abortion or abortion
coverage.
The manager's amendment strikes this section and replaces
it with another (described below). The manager's amendment
strikes this language because this provision is not included in
the current Hyde Amendment, and is seen as unnecessary in that
amendment. Like H.R. 3, the Hyde Amendment's effect on Federal
funding of abortion is to prohibit such funding; if it allows
(that is, fails to prohibit) funding of abortion in certain
rare cases, the issue of whether a state government or other
entity may have to provide funds for such an abortion is
determined by other laws.
The manager's amendment replaces section 308 with a new
section that states:
SEC. 308. CONSTRUCTION RELATING TO COMPLICATIONS
ARISING FROM ABORTION. Nothing in this chapter shall be
construed to apply to the treatment of any infection,
injury, disease, or disorder that has been caused by or
exacerbated by the performance of an abortion. This
rule of construction shall be applicable without regard
to whether the abortion was performed in accord with
Federal or state law, and without regard to whether
funding for the abortion is permissible under section
309 of this Act.
The manager's amendment adds a Section 308 to explain that
H.R. 3's restrictions on the use of Federal funds and tax
incentives for abortion do not apply to the treatment of
complications from abortion, regardless of whether the abortion
itself was illegal or ineligible for Federal funds. This
section is added because opponents of H.R. 3 have tried to
argue that the provisions in H.R. 3 would allow insurance
companies to refuse to provide treatment for post-abortion
complications. The Hyde Amendment and other Federal laws
regarding abortion funding have never prevented funding for
complications from an abortion. The performance of abortions is
clearly separate from the treatment of injuries resulting from
the performance of an abortion. The Hyde Amendment and other
longstanding restrictions on Federal funding of abortion have
not included this explicit rule of construction in the past,
because no case has been raised to indicate any problem of lack
of clarity in applying these laws. However, the distinction has
sometimes been explicit in foreign assistance applications.\33\
---------------------------------------------------------------------------
\33\For example, President Bush's 2001 memorandum reinstating the
``Mexico City Policy'' (a policy against disbursing population
assistance funds to non-governmental organizations that perform or
promote abortion in foreign countries) explicitly excluded from the
definition of abortion ``the treatment of injuries or illnesses caused
by legal or illegal abortions, for example, post-abortion care''
(Presidential Memorandum of March 28, 2001, ``Restoration of the Mexico
City Policy,'' 66 Fed. Reg. 17301-13 (March 29, 2001) at 17306 and
17311). The additional clarification in the manager's amendment's
Section 308 requires no change from the current understanding of
abortion limitations in domestic or foreign policy.
---------------------------------------------------------------------------
Moreover, while the Hyde Amendment has been in place,
nothing has prevented Medicaid from covering services for
complications following an abortion. The ``State Medicaid
Manual,'' which is the official guidance provided to states by
HHS, addresses this point explicitly. The manual, in Chapter 4,
says explicitly that Federal financial reimbursement is also
``available for the costs of certain specific services
associated with a non-Federally funded abortion,'' including
``charges for all services, tests and procedures performed
post-abortion for complications of a non-Federally funded
therapeutic abortion.''\34\
---------------------------------------------------------------------------
\34\From 4432 Federal Funding of Abortion Related Services, within
Chapter 4 of the State Medicaid Manual, which can be found at this
link: http://www.cms.gov/Manuals/PBM/item
detail.asp?filterType=none&filterByDID=-
99&sortByDID=1&sortOrder=ascending&itemID=CMS021927&intNumPerPage=10
---------------------------------------------------------------------------
SECTION 309
Section 309. Establishes an exception to the prohibitions
on abortion funding for cases of rape and incest, and when
necessary to save the life of the mother.\35\
---------------------------------------------------------------------------
\35\The Hyde Amendment does not contain a broader exception for the
``health'' of the mother. Such an exception would be easily abused on
the grounds that a federally-funded abortion is deemed necessary to
prevent the mother's ``emotional distress.'' A general ``health''
exception would consequently be bad policy, and the Supreme Court has
not required such an exception. The Supreme Court upheld the Hyde
Amendment of Fiscal Year 1977, which allowed Federal abortion funding
only in cases of danger to the life of the mother. See Harris v. McRae,
448 U.S. 297 (1980). Consequently, there is no constitutional
requirement that the Federal Government extend exceptions beyond the
life of the mother.
---------------------------------------------------------------------------
The manager's amendment will revert this section to the
language used in the Hyde Amendment, namely through references
to pregnancies that are ``the result of an act of rape or
incest.'' The references to ``pregnant female'' in Section
309(2) are also changed to ``woman,'' consistent with the
terminology used in the current Hyde Amendment.
Reverting to the original Hyde Amendment language should
not change longstanding policy. H.R. 3, with the Hyde Amendment
language, will still appropriately not allow the Federal
Government to subsidize abortions in cases of statutory rape.
The Hyde Amendment has not been construed to permit Federal
funding of abortion based solely on the youth of the mother,
nor has the Federal funding of abortions in such cases ever
been the practice.
SECTION 310
Section 310. Clarifies that the term ``funds appropriated
by Federal law'' includes funds appropriated by Congress for
the District of Columbia, and that standards set for the
Federal Government include the government of the District of
Columbia. Because H.R. 3 codifies the Hyde Amendment principle
as a matter of Federal law, it will affect funding in the
District of Columbia. Article 1 of the Constitution grants
Congress control over all District legislation, including
funding. Last year the Omnibus Appropriations Act\36\ which
allocates funds to the District removed the provision
restricting the funding of elective abortions, a provision
which had been renewed each year since 1996. Section 814 of
Division C changed this provision to prevent only ``Federal''
funds from being used for abortion, which is a bogus
distinction since all funds received and spent by the District
are appropriated by Congress. H.R. 3 would restore the
prohibition on taxpayer funding for elective abortion in
Washington, D.C.
---------------------------------------------------------------------------
\36\Section 814 of Division C of The Consolidated Appropriations
Act, 2010 (P.L. 111-117).
---------------------------------------------------------------------------
SECTION 311
Section 311. Ensures that the Federal Government, and any
State or local government that receives Federal funds, may not
discriminate against any individual or institutional health
care entity on the basis that the entity does not provide, pay
for, provide coverage of, or refer for abortions.
H.R. 3 makes permanent the conscience protection language
found in the Hyde-Weldon Amendment renewed each year in the
Labor-HHS appropriations bill, and applies this
nondiscrimination policy to other departments and agencies of
the Federal Government, as well as state and local governments
that receive Federal funds from these departments and agencies.
Since PPACA appropriates funds directly, bypassing the
Labor-HHS bill, these funds are not bound by the Hyde-Weldon
conscience protections. Moreover, PPACA included a weaker
nondiscrimination provision which only prevents health
``plans'' in the exchanges from discriminating against
``providers'' or ``facilities'' unwilling to participate in
abortion. It does not prevent the Federal Government, or state
or local governments, from committing such discrimination. H.R.
3 would codify the Hyde-Weldon provision, restoring conscience
protections for health care workers to the status quo.
Section 311 forbids government from discriminating against
any health care entity based on its declining to provide, pay
for, provide coverage of, or refer for abortions. Thus the
government may not penalize, deny a benefit or status to, or
deny participation in public benefits programs to health care
entities on this basis, whether the law or policy asserted by
the government as a justification specifically targets such
entities or is a law of general applicability.
In three respects Section 311 clarifies or improves the
language of the Hyde-Weldon amendment.
First, it clarifies that this policy governs a state or
local government that receives Federal financial assistance
``either directly or indirectly.'' Thus, for example, a local
governmental entity that has received Federal funds to help
implement health care reform legislation is covered by the
policy, even if those funds were channeled to the local
government through a state agency. Likewise, if a state
government receives Federal financial assistance, an agency of
that state government is covered by the policy regardless of
whether that particular agency is itself a direct recipient of
Federal funds.
Second, Section 311 provides for a private right of action
so that health care entities may directly file suit in Federal
court if their rights under this Section have been or are
threatened to be violated. This right of action belongs to any
health care entity that has standing under the general rules of
standing under Article III of the Constitution. This would
certainly include the entity whose rights are threatened, and
can also include an association of health care entities when
one or more of its members are threatened by a violation of the
law.\37\ This right of private action, and the process
discussed below for filing complaints with HHS for actual or
threatened violations of Section 311, are set forth as
concurrent and independent avenues for enforcement. Section 311
does not require, and should not be construed to require, that
an administrative complaint must be filed, or that an
investigation must be either initiated or concluded, before
suit may be filed in Federal court.
---------------------------------------------------------------------------
\37\See United Food & Commercial Workers Union v. Brown Group, 517
U.S. 544, 555-56 (1996).
---------------------------------------------------------------------------
Third, Section 311 designates the Office for Civil Rights
of the Department of Health and Human Services (HHS) to receive
complaints under this section. This designation parallels the
regulation recently issued by HHS regarding enforcement of
Federal conscience laws, including the Hyde-Weldon
Amendment.\38\ Because Section 311 applies to Federal agencies
and programs in addition to HHS, it instructs the HHS Office
for Civil Rights to investigate complaints or refer them to the
other agency or program, as appropriate.
---------------------------------------------------------------------------
\38\See Department of Health and Human Services, ``Regulation for
the Enforcement of Federal Health Care Provider Conscience Protection
Laws,'' 76 Fed. Reg. 9968-77 (February 23, 2011).
---------------------------------------------------------------------------
In an April 2009 survey by The Polling Company, Inc., 87%
of American adults believed it is important (and 65% saw it as
very important) to ``make sure that healthcare professionals in
America are not forced to participate in procedures and
practices to which they have moral objections.''\39\
---------------------------------------------------------------------------
\39\On the April 2009 survey, see www.freedom2care.org/docLib/
200905011_Pollingsummary
handout.pdf.
---------------------------------------------------------------------------
SECTION 312
Section 312. Defines the term health benefits coverage.
The manager's amendment strikes this definition, as it
could prove overly restrictive and exclude from coverage other
forms of health benefits coverage that may be created under
PPACA and other Federal legislation.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
TITLE 1, UNITED STATES CODE
TITLE 1--GENERAL PROVISIONS
Chap. Sec.
Rules of construction............................................1
* * * * * * *
Prohibiting taxpayer funded abortions and providing for conscience
protections..................................................301
* * * * * * *
CHAPTER 4--PROHIBITING TAXPAYER FUNDED ABORTIONS AND PROVIDING FOR
CONSCIENCE PROTECTIONS
Sec.
301. Prohibition on funding for abortions.
302. Prohibition on funding for health benefits plans that cover
abortion.
303. Prohibition on tax benefits relating to abortion.
304. Limitation on Federal facilities and employees.
305. Construction relating to separate coverage.
306. Construction relating to the use of non-Federal funds for health
coverage.
307. Non-preemption of other Federal laws.
308. Construction relating to complications arising from abortion.
309. Treatment of abortions related to rape, incest, or preserving the
life of the mother.
310. Application to District of Columbia.
311. No government discrimination against certain health care entities.
Sec. 301. Prohibition on funding for abortions
No funds authorized or appropriated by Federal law, and
none of the funds in any trust fund to which funds are
authorized or appropriated by Federal law, shall be expended
for any abortion.
Sec. 302. Prohibition on funding for health benefits plans that cover
abortion
None of the funds authorized or appropriated by Federal
law, and none of the funds in any trust fund to which funds are
authorized or appropriated by Federal law, shall be expended
for health benefits coverage that includes coverage of
abortion.
Sec. 303. Prohibition on tax benefits relating to abortion
For taxable years beginning after the date of the enactment
of this section--
(1) no credit shall be allowed under the internal
revenue laws with respect to amounts paid or incurred
for an abortion or with respect to amounts paid or
incurred for a health benefits plan (including premium
assistance) that includes coverage of abortion,
(2) for purposes of determining any deduction for
expenses paid for medical care of the taxpayer or the
taxpayer's spouse or dependents, amounts paid or
incurred for an abortion shall not be taken into
account, and
(3) in the case of any tax-preferred trust or
account the purpose of which is to pay medical expenses
of the account beneficiary, any amount paid or
distributed from such an account for an abortion shall
be included in the gross income of such beneficiary.
Sec. 304. Limitation on Federal facilities and employees
No health care service furnished--
(1) by or in a health care facility owned or
operated by the Federal Government; or
(2) by any physician or other individual employed
by the Federal Government to provide health care
services within the scope of the physician's or
individual's employment,
may include abortion.
Sec. 305. Construction relating to separate coverage
Nothing in this chapter shall be construed as prohibiting
any individual, entity, or State or locality from purchasing
separate abortion coverage or health benefits coverage that
includes abortion so long as such coverage is paid for entirely
using only funds not authorized or appropriated by Federal law
and such coverage shall not be purchased using matching funds
required for a federally subsidized program, including a
State's or locality's contribution of Medicaid matching funds.
Sec. 306. Construction relating to the use of non-Federal funds for
health coverage
Nothing in this chapter shall be construed as restricting
the ability of any non-Federal health benefits coverage
provider from offering abortion coverage, or the ability of a
State or locality to contract separately with such a provider
for such coverage, so long as only funds not authorized or
appropriated by Federal law are used and such coverage shall
not be purchased using matching funds required for a federally
subsidized program, including a State's or locality's
contribution of Medicaid matching funds.
Sec. 307. Non-preemption of other Federal laws
Nothing in this chapter shall repeal, amend, or have any
effect on any other Federal law to the extent such law imposes
any limitation on the use of funds for abortion or for health
benefits coverage that includes coverage of abortion, beyond
the limitations set forth in this chapter.
Sec. 308. Construction relating to complications arising from abortion
Nothing in this chapter shall be construed to apply to the
treatment of any infection, injury, disease, or disorder that
has been caused by or exacerbated by the performance of an
abortion. This rule of construction shall be applicable without
regard to whether the abortion was performed in accord with
Federal or State law, and without regard to whether funding for
the abortion is permissible under section 309 of this Act.
Sec. 309. Treatment of abortions related to rape, incest, or preserving
the life of the mother
The limitations established in sections 301, 302, 303, and
304 shall not apply to an abortion--
(1) if the pregnancy is the result of an act of
rape or incest; or
(2) in the case where a woman suffers from a
physical disorder, physical injury, or physical illness
that would, as certified by a physician, place the
woman in danger of death unless an abortion is
performed, including a life-endangering physical
condition caused by or arising from the pregnancy
itself.
Sec. 310. Application to District of Columbia
In this chapter:
(1) Any reference to funds appropriated by Federal
law shall be treated as including any amounts within
the budget of the District of Columbia that have been
approved by Act of Congress pursuant to section 446 of
the District of Columbia Home Rule Act (or any
applicable successor Federal law).
(2) The term ``Federal Government'' includes the
government of the District of Columbia.
Sec. 311. No government discrimination against certain health care
entities
(a) Nondiscrimination.--A Federal agency or program, and
any State or local government that receives Federal financial
assistance (either directly or indirectly), may not subject any
individual or institutional health care entity to
discrimination on the basis that the health care entity does
not provide, pay for, provide coverage of, or refer for
abortions.
(b) Health Care Entity Defined.--For purposes of this
section, the term ``health care entity'' includes an individual
physician or other health care professional, a hospital, a
provider-sponsored organization, a health maintenance
organization, a health insurance plan, or any other kind of
health care facility, organization, or plan.
(c) Remedies.--
(1) In general.--The courts of the United States
shall have jurisdiction to prevent and redress actual
or threatened violations of this section by issuing any
form of legal or equitable relief, including--
(A) injunctions prohibiting conduct that
violates this section; and
(B) orders preventing the disbursement of
all or a portion of Federal financial
assistance to a State or local government, or
to a specific offending agency or program of a
State or local government, until such time as
the conduct prohibited by this section has
ceased.
(2) Commencement of action.--An action under this
subsection may be instituted by--
(A) any health care entity that has
standing to complain of an actual or threatened
violation of this section; or
(B) the Attorney General of the United
States.
(d) Administration.--The Secretary of Health and Human
Services shall designate the Director of the Office for Civil
Rights of the Department of Health and Human Services--
(1) to receive complaints alleging a violation of
this section;
(2) subject to paragraph (3), to pursue the
investigation of such complaints in coordination with
the Attorney General; and
(3) in the case of a complaint related to a Federal
agency (other than with respect to the Department of
Health and Human Services) or program administered
through such other agency or any State or local
government receiving Federal financial assistance
through such other agency, to refer the complaint to
the appropriate office of such other agency.
Dissenting Views
Congress has prohibited the use of Federal funds for
abortion for more than three decades, and H.R. 3 is not needed
to achieve what has already been accomplished. Contrary to the
claims of its sponsors, H.R. 3 is not a ``just and widely
supported common sense approach'' to Federal funding\1\ but an
aggressive assault on women's health and the constitutionally
protected right to decide whether to carry a pregnancy to term.
If enacted, H.R. 3 would burden that right in a variety of ways
that have nothing to do with Federal funds. H.R. 3 is not just,
it is not common sense, and we adamantly oppose it.
---------------------------------------------------------------------------
\1\No Taxpayer Funding for Abortion Act: Markup of H.R. 3 Before
the H. Comm. on Judiciary, 112th Cong. 12 (2011) [hereinafter ``Markup
Transcript''] (opening statement of Rep. Trent Franks), available at
http://judiciary.house.gov/hearings/mark_03022011.html.
---------------------------------------------------------------------------
H.R. 3 is far more ambitious than a mere codification of
existing law. As originally introduced, it would have narrowed
already inadequate exceptions that allow funding for abortion
in cases of rape or incest by further limiting these hard-
fought protections to cases of ``forcible rape'' and incest
only when the victim is a minor. These cutbacks to existing law
were not an oversight. As explained by a witness invited to
testify by the Majority at the hearing on H.R. 3 held in the
Constitution Subcommittee, these changes were intended to
target and narrow protection for teenage girls.\2\ In response
to public outcry and anger, and perhaps realizing that this
particular overreach might cost passage of the bill,
Representative Trent Franks removed these limitations through a
manager's amendment offered at the Committee markup. H.R. 3's
sponsors may have retreated on this particular issue for now,
but they remain steadfast in their overarching goal.
---------------------------------------------------------------------------
\2\No Taxpayer Funding for Abortion Act: Hearing Before the
Subcomm. on Constitution of the H. Comm. on the Judiciary, 112th Cong.
(2011) [hereinafter ``Constitution Subcomm. Hearing''] (oral testimony
of Richard M. Doerflinger, unofficial transcript).
---------------------------------------------------------------------------
The goal of H.R. 3 is to make abortion completely
unavailable even when paid for with purely private, non-Federal
funds. H.R. 3 does this by, among other things, imposing an
unprecedented tax penalty on individuals and businesses who use
their own money to pay for abortion or to purchase insurance
that would cover abortion. To the extent that individuals and
businesses seek to avoid H.R. 3's penalty on insurance by
purchasing insurance that excludes abortion coverage, any
resulting costs for abortion-related medical care will be borne
entirely by women and their families out-of-pocket. This is not
codification of existing law, nor is it just another attempt to
enact the approach taken in the Stupak/Pitts Amendment to the
House-passed Affordable Health Care for America Act.\3\ H.R. 3
is a radical departure from current tax treatment of medical
expenses and insurance coverage; and it is not justifiable nor
necessary to prevent Federal funding of abortion.
---------------------------------------------------------------------------
\3\H.R. 3962, 111th Cong., Sec. 265 (as passed by House, Nov. 7,
2009).
---------------------------------------------------------------------------
H.R. 3 changes existing law in other ways that will further
harm women's health and place their lives at risk. For example,
as interpreted by its key sponsors, section 311 of the bill
would elevate a broad right to refuse to provide abortion-
related care above the fundamental obligation to provide life-
saving care. Current law is clear: no one has the right to
refuse to provide emergency care, even if that requires
performance of abortion. Rather than adhere to well-established
law in this regard, H.R. 3 seeks to upset it, while
simultaneously creating new and special rights for those who
refuse to provide abortion-related care.
H.R. 3 also seeks to extend funding restrictions that are
limited in time and scope and apply them to all Federal laws,
without any effort to determine how such a sweeping and
permanent expansion would impact American women and their
families.
I. OVERVIEW OF H.R. 3, THE
``NO TAXPAYER FUNDING FOR ABORTION ACT''
H.R. 3 seeks to amend Title I of the U.S. Code to add new
sections to Federal law, some of which have no corollary in
existing law. Section 303 of the bill, for example, seeks to
impose an unprecedented tax penalty on the use of purely
private funds for abortion. Other sections are similar--but not
identical to--restrictions that have been placed on Federal
funding through various amendments to annual appropriations
bills. The impact of these modified provisions on women and
their families is unclear, yet H.R. 3 nonetheless seeks to make
these restrictions permanent, and applicable to all Federal
laws, as outlined below.
Sections 301 and 302 would impose a permanent, blanket
restriction on funding. Sections 301 and 302 are modeled on the
Hyde Amendment. First enacted in 1976, the Hyde Amendment
prohibits the use of funds appropriated in particular laws
(e.g., annual appropriations for the Department of Health and
Human Services) from being used for abortion.\4\ But unlike the
Hyde Amendment, sections 301 and 302 would never expire and
would apply to all Federal funds, not just funds specifically
appropriated for a particular agency or purpose.
---------------------------------------------------------------------------
\4\See, e.g., P.L. 111-117, div. D, tit. II, Sec. 507(a), 123 Stat.
3034, 3280 (2009) (``None of the Federal funds appropriated in this
Act, and none of the funds in any trust fund to which funds are
appropriated in this Act, shall be expended for any abortion.'').
---------------------------------------------------------------------------
Section 303 would impose an unprecedented tax penalty on
private funding for abortion and for insurance coverage that
includes abortion. As described more fully below, section 303
imposes a tax on the use of private funds to pay for abortion
or for the purchase of insurance that covers abortion in many
circumstances. Section 303 has no corollary in existing law and
represents a novel, untested use of the Internal Revenue Code
to penalize a lawful and constitutionally protected health care
choice. To the extent individuals and businesses seek to avoid
section's 303's insurance penalty by purchasing insurance that
excludes abortion, women and their families will bear the costs
of any abortion-related medical care out-of-pocket.
Section 304 would ban abortion services in Federal health
care facilities or by any Federal employee. Section 304 imposes
a sweeping prohibition on the inclusion of abortion as part of
any health care service furnished in a health care facility
``owned or operated'' by the Federal government or by any
Federal employee. Congress previously has prohibited abortion
services in prisons (though requiring transportation from
prison when necessary)\5\ and in Department of Defense
facilities,\6\ but H.R. 3 now seeks to impose this ban on all
Federal facilities and all Federal employees. The ban would not
apply in cases of rape, incest, or where the woman's life is in
danger (by virtue of Section 309).
---------------------------------------------------------------------------
\5\See, e.g., P.L. 111-117, div. B, tit. II, Sec. Sec. 203-04, 123
Stat. 3034, 3139 (2009).
\6\See, e.g., 18 U.S.C. Sec. 1093(b) (prohibiting the performance
of abortions in Department of Defense facilities).
---------------------------------------------------------------------------
Section 305 would narrow the Hyde Amendment's broad right
to use non-Federal funds. The Hyde Amendment recognizes and
preserves a broad right to use private funds, without
specifying or limiting items that may be purchased with those
funds.\7\ Rather than mirroring this language exactly, section
305 protects only the purchase of ``separate abortion coverage
or health benefits coverage that includes abortion'' with non-
Federal funds. The impact of limiting a broad, unspecified
right is unclear but notably places the use of funds for
abortion (as compared to funds used to pay for insurance
coverage) at risk, particularly when coupled with section 303's
unprecedented tax penalties on private payments for abortion.
As described more fully below, those penalties may make the
right allegedly protected by section 305 purely symbolic for
many women and their families.
---------------------------------------------------------------------------
\7\See, e.g., P.L. 111-117, div. D, tit. II, Sec. 508(b), 123 Stat.
3034, 3280 (2009) (``Nothing in the preceding section shall be
construed as prohibiting the expenditure by a State, locality, entity,
or private person of State, local, or private funds (other than a
State's or locality's contribution of Medicaid matching funds).'').
---------------------------------------------------------------------------
Section 306 would alter Hyde Amendment protections for
providers who offer abortion coverage. The Hyde Amendment
broadly preserves the right for ``any'' managed care provider
to offer abortion coverage,\8\ while section 306 protects only
the right of a ``non-Federal'' health benefits plan provider to
offer coverage that includes abortion. It is not clear who
might fall in or outside this category, and whether any insurer
who participates in an exchange established under the
Affordable Care Act might be considered a Federal provider for
purposes of H.R. 3.
---------------------------------------------------------------------------
\8\See, e.g., P.L. 111-117, div. D, tit. II, Sec. 508(c), 123 Stat.
3034, 3280.
---------------------------------------------------------------------------
Section 307 would preserve only those Federal laws that
impose greater restrictions on access to abortion. Section 307
makes clear that H.R. 3 would supersede any law that does not
impose equal or greater restrictions on access to abortion.
Section 307 leaves Congress no discretion or flexibility to,
for example, provide greater protections for a woman's health
in a particular setting or circumstance.
Section 308 would allow funding for treatments of
complications that might arise from abortion. This section was
added by the manager's amendment offered at Committee markup
and appears intended to protect women against wrongful denials
of coverage by clarifying that funding restrictions do not
apply to treatment for complications that might arise from an
abortion. It is unclear whether section 308 will be sufficient
to overcome the chilling effect of section 303 on insurers'
coverage decisions.
Section 309 would adopt the Hyde Amendment exceptions for
cases of rape, incest, or where a woman's life is endangered.
As originally introduced, H.R. 3 sought to narrow Hyde
Amendment exceptions by allowing funding only in cases of
``forcible rape'' and incest only with a minor. In response to
justifiable outrage, these further limits were removed at
markup, leaving in place the Hyde Amendment restrictions that
provide only limited safeguards for a woman's health.
Section 310 would reinstate and make permanent restrictions
on funding for the District of Columbia. While some Congresses
have restricted the District's use of its own funds, other
Congresses have afforded it the same right as the states to use
local, non-Federal funds for abortion-related services. Section
310 would impose a permanent ban on the District's use of local
funds for abortion-related services.
Section 311 would provide unprecedented protection for
anyone who refuses to provide abortion-related care and would
elevate the right to refuse care over the obligation to provide
life-saving care. Section 311 broadly protects any health care
entity from government discrimination for refusing to provide
abortion-related services, and creates a new private cause for
enforcing this right. Unlike existing conscience protections,
Section 311 protects anyone who faces even a threat of
discrimination, regardless of whether actual discrimination
ever occurs. Because section 311 does not define
``discrimination,'' it is unclear what types of state actions
might leave states at risk of a lawsuit and loss of Federal
funding. Section 311, as interpreted by its key sponsors, also
seeks to upset well-established law that requires the provision
of life-saving care, even when that care requires the
performance of an abortion.
A number of organizations oppose H.R. 3, including:
Abortion Care Network, Advocates for Youth, Alliance for
Justice, American Nurses Association (ANA), American Civil
Liberties Union, American Congress of Obstetricians and
Gynecologists, American Humanist Association, American Medical
Student Association (AMSA), American Medical Women's
Association, American Public Health Association, Asian &
Pacific Islander American Health Forum, Association of American
Women (AAUW), Association of Reproductive Health Professionals
(ARHP), Black Women's Health Imperative, Catholics for Choice,
Center for American Progress Action Fund, Center for Health and
Gender Equity (CHANGE), Center for Reproductive Rights, Center
for Women Policy Studies, EngenderHealth, EQUAL Health Network,
Feminist Majority Foundation, Guttmacher Institute, Human
Rights Campaign, International Planned Parenthood Federation--
Western Hemisphere Region, Ipas, Law Students for Reproductive
Justice, Medical Students for Choice, NARAL Pro-Choice America,
National Abortion Federation, National Asian Pacific American
Women's Forum (NAPAWF), National Association of Nurse
Practitioners in Women's Health (NPWH), National Association of
Social Workers (NASW), National Council of Jewish Women,
National Family Planning and Reproductive Health Association,
National Health Law Program, National Institute for
Reproductive Health, National Latina Institute for Reproductive
Health, National Network of Abortion Funds, National
Organization for Women, National Partnership for Women &
Families, National Women's Conference Committee, National
Women's Health Network, National Women's Law Center, People For
the American Way, Physicians for Reproductive Choice and
Health, Planned Parenthood Federation of America, Population
Connection, Raising Women's Voices for the Health Care We Need,
Religious Coalition for Reproductive Choice, Religious
Institute, Reproductive Health Technologies Project, Sexuality
Information and Education Council of the U.S. (SIECUS), Third
Way, Union for Reform Judaism,United Church of Christ, Justice
and Witness Ministries, United Methodist Church, General Board
of Church & Society, Women of Reform Judaism, YWCA USA.
II. H.R. 3 IMPOSES UNPRECEDENTED TAX PENALTIES ON PRIVATE FUNDS AND
WILL INCREASE TAXES AND IMPERIL EXISTING INSURANCE COVERAGE FOR
AMERICAN WOMEN, FAMILIES, AND BUSINESSES.
Section 303 of the bill will impose an unprecedented
penalty--in the form of a tax increase--on the use of private
money to pay for abortion or insurance that would cover
abortion. Section 303 is not about Federal money. It is about
the Federal Government penalizing individuals, families, and
businesses when they make a particular, constitutionally
protected, health care choice that some Members of Congress
oppose.
Section 303 of H.R. 3 has absolutely no corollary in
existing law. It is a completely novel and untested use of the
Internal Revenue Code, and the claim that section 303 is needed
to prevent Federal funding for abortion represents a radical
view that is at-odds with our longstanding treatment of private
contributions in countless other circumstances. The politically
convenient fiction that the money in an individual's own pocket
is converted into Federal funds any time the government elects
not to tax that money should be rejected.
A. LSection 303 Increases Taxes, Endangers Existing Insurance Coverage,
and Creates Uncertainty.
Exactly how far section 303 sweeps, and what expenses it
may penalize, is unclear. How much it will increase taxes, and
exactly whose taxes will increase, is also unclear. Its impact
on current comprehensive insurance coverage that American
families now have, and rely upon to safeguard their physical
and financial health, is similarly unknown.
Indeed, while a Constitution Subcommittee hearing and the
markup of H.R. 3 provide a general sense of the minimum reach
of section 303's novel tax penalty provision, no one has been
able to explain its maximum impact and when, if ever, insurance
coverage that includes abortion is beyond its scope. This
uncertainty will necessarily cause individuals, businesses and
insurers to drop anything that might be construed as abortion
coverage, if only to avoid the catastrophic financial
consequences of an adverse tax ruling in the future. To the
extent that individuals, businesses, and insurers do so,
medical expenses incurred as a result of the loss of coverage
for abortion-related care will be shifted to women and their
families. These increased costs, which will not be reflected in
estimates regarding H.R. 3's impact on Federal tax revenues,
place women and families at considerable financial risk.
1. LEven if limited to its minimum potential applications,
section 303 will increase taxes of millions of
small businesses, workers, and their families.
At a minimum, section 303 will reach any private funds paid
out-of-pocket for abortion services and private funds used to
purchase insurance that includes coverage for abortion in many
circumstances, including in the following ways.
(a) Section 303(1) of H.R. 3 bars any ``credit'' under the
Internal Revenue Code for any amounts paid for abortion or for
health benefit plans that include coverage for abortion. This
provision is intended to and likely would reach: (1) any small
business that helps pay for insurance for its employees; and
(2) any individual who qualifies for a credit under the
Affordable Care Act or any other law, if the insurance
purchased through private funds that make these businesses and
individuals eligible for the relevant credit covers
abortion.\9\
---------------------------------------------------------------------------
\9\Constitution Subcomm. Hearing, supra note 2 (written testimony
of Cathy Cleaver Ruse, at 8; written testimony of Sara Rosenbaum, at
3).
---------------------------------------------------------------------------
The Council of Economic Advisors estimates that 4 million
small businesses are eligible for a tax credit under the
Affordable Care Act if they provide health care to their
workers, and that ``millions of workers at small firms and
their families would be eligible for their own tax credits to
purchase coverage through the Exchange if their firms did not
offer coverage.''\10\ All of these businesses, individuals, and
families would lose their tax credits under section 303(1) if
their insurance covers abortion, thus raising taxes on
potentially millions of small businesses and their workers.
---------------------------------------------------------------------------
\10\Christina Romer & Mark Duggan, Council of Econ. Advisors,
Health Insurance Reform Will Help Small Businesses (Feb. 26, 2010),
www.whitehouse.gov/blog/2010/02/26/health-insurance-reform-will-help-
small-businesses. Appointed by the President with the advice and
consent of the Senate, the Council of Economic Advisors offers the
President objective economic advice on foreign and domestic economic
policy.
---------------------------------------------------------------------------
While the bill's sponsors claim that sections 305 and 306
of the bill will preserve the right to use one's own funds to
contract for and purchase insurance that covers abortion,
section 303(1) would make it impossible for many women,
families, and businesses to do so.
For example, a single mother with two children who earns
$24,000 a year becomes eligible in 2014 to purchase insurance
through an exchange under the Affordable Care Act. If the
family's health insurance plan includes coverage for abortion,
section 303(1) requires them to forfeit the premium assistance
credit that makes it possible to purchase this insurance. This
effectively forces them to purchase insurance that excludes
abortion coverage, making the right allegedly protected by
sections 305 and 306 purely symbolic for this mother and her
family.
(b) Section 303(2) of H.R. 3 taxes any private funds paid
out-of-pocket for abortion services by making these medical
expenses ineligible for tax deduction. This will increase taxes
on women and families who use their own money to pay for
abortion services or where privately-purchased health insurance
requires an out-of-pocket co-payment.
As introduced, section 303(2) would also have disallowed
tax deductions for any amounts paid for health benefit plans
that include coverage of abortion. During the Constitution
Subcommittee hearing, witnesses took decidedly different
positions on whether section 303(2) would reach employer-
provided health insurance plans.\11\
---------------------------------------------------------------------------
\11\Constitution Subcomm. Hearing, supra note 2 (written testimony
of Cathy Cleaver Ruse, at 8; written testimony of Sara Rosenbaum, at
3).
---------------------------------------------------------------------------
In an apparent effort to clarify that section 303(2) should
not be interpreted to apply to employer-provided plans,
Representative Trent Franks offered a manager's amendment to
H.R. 3 that struck the portion of section 303(2) referencing
funds used to purchase health benefit plans that cover
abortion.\12\ Though Representative Franks expressed his belief
that section 303, as amended, should not be interpreted to
reach employer-provided plans, he nonetheless objected to an
amendment offered by Representative Jerrold Nadler that would
have ensured that employer-provided plans are exempt from
section 303.\13\ That amendment was not agreed to.
---------------------------------------------------------------------------
\12\H.R. 3's sponsors may also have made this change to blunt the
justifiable concern and criticism that, if interpreted to reach
employer-provided plans, section 303 would immediately alter insurance
coverage for the vast majority of American workers who receive coverage
through their employers. However, as explained in Sec. I.(A)(3), even
if section 303 does not itself reach employer-provided plans, there
will be a spillover effect (as companies redesign insurance products
for use in multiple markets) that will impact coverage under employer-
provided plans regardless. For a further explanation of the industry-
wide impact, and how insurance product design responds to broad
regulatory intervention aimed at reshaping product content, see also
Sara Rosenbaum et al., George Washington Univ. Med. Ctr., An Analysis
of the Implications of the Stupak/Pitts Amendment for Coverage of
Medically-Indicated Abortions (Nov. 16, 2009), http://www.gwumc.edu/
sphhs/departments/healthpolicy/dhp_publications/pub_uploads/
dhpPublication_FED314C4-5056-9D20-3DBE77EF6ABF0FED.pdf.
\13\Markup Transcript, supra note 1, at 106-07.
---------------------------------------------------------------------------
(c) Section 303(3) of H.R. 3 would penalize individuals
with tax-preferred savings accounts any time they use their
funds to pay for abortion services. Section 303(3) applies to
individuals who set up health savings accounts or similar
trusts through an employer or on their own, and requires that
any personal funds paid for abortion be counted as taxable
income.\14\
---------------------------------------------------------------------------
\14\Constitution Subcomm. Hearing, supra note 2 (prepared statement
of Cathy Cleaver Ruse, at 8; prepared statement of Sara Rosenbaum, at
3).
---------------------------------------------------------------------------
An estimated 30 million Americans currently use flexible
spending accounts to set aside pre-tax money to pay for medical
expenses,\15\ and approximately 10 million are enrolled in
health savings accounts.\16\ Section 303 would increase taxes
for these individuals and families if they use the money that
they have set aside to cover medical expenses to pay for
abortion.
---------------------------------------------------------------------------
\15\Jordan Rau, Kaiser Health News, Defending the Flex Spending
Accounts (Feb. 2, 2011), http://www.politico.com/news/stories/0211/
48627.html.
\16\America's Health Insurance Plans, January 2010 Census Shows 10
Million People Covered by HSA Qualified High-Deductible Health Plans
(2010), http://www.ahipresearch.com/hsacensus.html.
---------------------------------------------------------------------------
2. LSection 303's maximum reach is uncertain, with key
sponsors seeking to penalize any insurance with a
``federal nexus,'' possibly including all plans
purchased through an exchange.
Minority Committee Members were unable to clarify section
303's scope during the Committee's markup of H.R. 3 despite
several efforts to do so. Indeed, several Members questioned
Representative Franks about how his manager's amendment would
work. Representative Franks' explanations only led to further
confusion.
For example, Representative Nadler sought to clarify the
impact of the bill on an individual's use of her own funds to
purchase insurance from a private company through the following
colloquy:
Mr. Nadler. If the only activity of the government,
Federal Government or State government, in the given
situation is that they have set up the exchange, that
the administrative costs of the exchange are being
borne by either the State or the Federal government,
and an individual goes to this exchange and, getting no
tax credit, buys an insurance policy from some private
company but does so on an exchange that is maintained
by the government, does [this bill] affect that?
Mr. Franks. Well, once again, it depends on whether
there is any Federal nexus of financing and whether the
plan offers abortion or it does not. If it does not
offer abortion, of course, it is unaffected. If it
does, if there is any Federal nexus, whether it is this
tax credit again that makes the furniture float in the
room -
Mr. Nadler. I thank the gentleman and I remain almost
as confused as I was before.\17\
---------------------------------------------------------------------------
\17\Markup Transcript, supra note 1, at 32.
The question of whether section 303 reaches any plan
offered through an exchange is a significant one. The
Congressional Budget Office estimates that within six years of
implementation, 30 million people will get their health
insurance through an exchange, including 3 million who will
receive no Federal subsidy for doing so and another 9 million
who will receive exchange-based insurance through an
employer.\18\ Taxes will be increased, and coverage for
millions of Americans placed at risk if, as its key sponsors
have indicated it might, section 303 reaches any plan purchased
through an exchange.
---------------------------------------------------------------------------
\18\Letter from Douglas W. Elmendorf, Director, Congressional
Budget Office, to Hon. John D. Dingell, U.S. House of Representatives
(Nov. 6, 2009), http://www.cbo.gov/ftpdocs/107xx/doc10710/
hr3962Dingell_mgr_Amendment_update.pdf.
---------------------------------------------------------------------------
During Committee markup, several Minority Members tried to
limit section 303's scope and mitigate resulting tax increases
by offering a series of amendments to the tax penalty
provision. Representative Nadler offered an initial amendment
to strike section 303 in its entirety, arguing that the
provision reaches and penalizes private, not Federal, funds. He
explained:
My colleagues insist that this bill merely codifies
existing law and is needed to ensure that no Federal
funds are spent for abortion. But section 303 is not a
mere codification of existing law. It is completely
new. This provision would penalize the use of private
funds and impose a tax increase on anyone who used
their own money for abortion or abortion coverage. The
American people should not be fooled into thinking that
this is what happens now.
Section 303 is not needed to prevent spending Federal
funds on abortion. Current law already prevents that.
And the funds reached in section 303 are not Federal
funds. And as the discussion of this committee in the
last 20 minutes has shown, the sponsors cannot even
tell us what this section covers and what this section
does not cover.\19\
---------------------------------------------------------------------------
\19\Markup Transcript, supra note 1, at 51.
When that amendment failed, Representative Nadler offered
an amendment that would have stayed enforcement of the law
pending a determination that section 303 will not increase
taxes. As he explained: ``Unless it is the sponsor's intent to
use tax penalties to impose a massive tax increase on Americans
who choose to exercise their own private choices about their
own health care and health care coverage, using their own
money, every member should be able to support this
amendment.''\20\ The amendment was not agreed to, nor were
additional amendments offered by Representative Nadler to
exempt employers and the self-employed from section 303's tax
penalty provision.
---------------------------------------------------------------------------
\20\Id. at 90.
---------------------------------------------------------------------------
Also seeking to mitigate the harm caused by section 303,
Representative Henry ``Hank'' Johnson, Jr. offered an amendment
to exempt individuals from its tax penalties. As he explained,
section 303 would place at risk American workers who lose their
jobs and women at all income levels:
Under current law, certain workers who lose their
jobs as a result of outsourcing to foreign countries
may be eligible for a health coverage tax credit. The
health coverage tax credit pays 80 percent of the cost
of a qualified health plan premium for eligible
workers.
LH.R. 3 makes any insurance plan that includes coverage
of abortion ineligible for the health coverage tax
credit, thereby raising taxes on potentially thousands
of displaced workers. H.R. 3 would also increase taxes
on women who use their tax-preferred savings accounts,
such as flexible spending or health savings accounts,
their own money, to pay for abortion care. . . .
. . . Further, this bill would penalize low-and-
middle income people [who would lose eligibility for a
tax credit to purchase insurance under the Affordable
Care Act].
. . . [I]n every way, this bill tells the American
taxpayer if you buy legal constitutionally protected
medical services that some members, mostly males, of
Congress don't like, then we're going to raise your
taxes. That's wrong. We have absolutely no business
doing that.\21\
---------------------------------------------------------------------------
\21\Id. at 149-50.
Representative Johnson's amendment was not agreed to, nor
was an amendment offered by Representative Debbie Wasserman
Schultz that would have protected small businesses from section
303's tax penalties. As Representative Wasserman Schultz
explained, application of section 303 to small businesses
would--for an average small business with twelve employees,
whose healthcare costs totaled approximately $90,000--raise the
taxes of that small business by nearly $15,000.\22\
---------------------------------------------------------------------------
\22\Id. at 184.
---------------------------------------------------------------------------
Without the benefit of any of the clarifying and narrowing
amendments offered by Minority Members, the potential reach of
H.R. 3's tax penalty provision remains unclear and, even
limited to its minimal applications, section 303 will raise the
taxes of millions of American women, workers, businesses, and
families.
3. LSection 303 also endangers insurance coverage that
millions of American women and their families
currently rely upon to secure their physical and
financial health.
Regardless of its exact scope, the goal of section 303 is
to drive insurance companies that provide coverage that
includes abortion out of the private insurance market.
Testifying before the Constitution Subcommittee, Professor
Sara Rosenbaum explained that, if enacted, section 303 would
cause '' a complete exodus of health plans from the market of
abortion coverage.''\23\ In order to avoid the loss of
favorable tax treatment, insurance companies will alter product
design to exclude abortion coverage and deny coverage for any
medical procedures that might possibly qualify as abortion-
related coverage. As Professor Rosenbaum observed:
---------------------------------------------------------------------------
\23\Constitution Subcomm. Hearing, supra note 2 (oral testimony of
Sara Rosenbaum, unofficial transcript).
Because products that violate the [abortion] exclusion
would no longer qualify for favorable tax treatment,
the industry can be expected to scramble quickly to
come into compliance. Where the exclusion is as complex
and fact-driven as that laid out in H.R. 3, compliance
poses great difficulties. . . .
. . . [A] far easier and completely legal strategy
for private insurers and plan administrators could be
simply to exclude coverage of all abortions from their
coverage products, whatever the clinical or factual
evidence, rather than risk a violation of the Federal
exclusion that in turn would result in the loss of tax-
favored treatment for the entire product.\24\
---------------------------------------------------------------------------
\24\Id. (written testimony of Sara Rosenbaum, at 4).
As Professor Rosenbaum's testimony makes clear, section 303
will have a chilling effect on insurance coverage for medical
expenses incurred by millions of American women.\25\
---------------------------------------------------------------------------
\25\Inclusion of a new section 308 in Representative Franks'
managers amendment, which allows coverage for medical care needed to
treat possible complications ``caused by or exacerbated by the
performance of an abortion'' does not mitigate this chilling effect. A
decision to provide coverage will remain subject to review and, as
Professor Rosenbaum testified, the safest and easiest route for
insurers will still be denial of all coverage requests. Since another
provision of H.R. 3 (section 311) provides insurers with a broad right
to refuse coverage, any claim that section 308 sufficiently safeguards
women's health is, at best, mistaken.
---------------------------------------------------------------------------
A Majority witness at the hearing, Richard Doerflinger,
frankly acknowledged the likelihood that the bill will alter
existing insurance coverage:
[T]he new legislation when combined with existing laws
may produce a `tipping point' where coverage without
abortion becomes the usual norm for health insurance;
coverage that includes abortion will be permitted but
rare.\26\
---------------------------------------------------------------------------
\26\Constitution Subcomm. Hearing, supra note 2 (written testimony
of Richard M. Doerflinger, at 9).
Mr. Doerflinger expressed no concern for the millions of
American women and families whose current insurance coverage
would be changed: ``My response to this is that I hope it is
correct.''\27\
---------------------------------------------------------------------------
\27\Id.
---------------------------------------------------------------------------
Congress should not embrace such cavalier disregard for the
well-being of millions of American women and their families who
currently have insurance that covers abortion services.\28\
Indeed, to the extent the H.R. 3 achieves this goal of making
insurance that includes abortion coverage unavailable, medical
expenses incurred as a result of that loss of coverage will be
shifted entirely to women and their families. These increased
costs, which will not be reflected in estimates regarding H.R.
3's impact on Federal tax revenues, place women and families at
considerable financial risk.
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\28\A federally supported study conducted by the Guttmacher
Institute found that 87% of typical employer-based insurance plans
covered abortion, and a 2003 survey by the Kaiser Family Foundation
found that 46% of insured workers had coverage for abortion. See
Guttmacher Institute, Memo on Insurance Coverage of Abortion (updated
Sept. 18, 2009), http://www.guttmacher.org/media/inthenews/2009/07/22/
index.html.
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Seeking to mitigate the resulting risk to women and their
families, Minority Members of the Committee fought hard to
safeguard current insurance coverage through an amendment
offered by Representative Mike Quigley.
Representative Quigley's amendment would have protected
current coverage by requiring certification that H.R. 3's
untested tax penalty provision would not impair coverage in
plans that millions of American women and families rely upon
for comprehensive medical care. As he explained:
I also want to be clear on what this attempt to
eliminate insurance coverage of abortion would actually
mean for millions of families across the country. . . .
if the intent of this bill succeeds, women who never
thought they would need an abortion will be endangered
when they are without coverage for an abortion and even
when an abortion is necessary to preserve a woman's
health.
[T]he true ramifications of this bill will likely
eliminate private insurance coverage of abortions,
stripping away the comprehensive coverage that millions
of women currently have, need, and deserve.\29\
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\29\Markup Transcript, supra note 1, at 162.
Representative Quigley's amendment to safeguard existing
coverage was not agreed to, placing at risk current coverage
that American women and their families pay for with their own
funds and that ensures comprehensive coverage for unforeseen
medical needs.
B. LAccepting the Fiction that Section 303 Targets Federal Funding is
At-Odds with Congress's Longstanding Tax Treatment of Private
Funds in Other Circumstances.
There is no precedent for the position that the tax
treatment of private funds--whether through exemption,
deduction, credit or any other favorable treatment--converts
money that the government has decided not to collect from
individual taxpayers or businesses into Federal funds. That
position, adopted to justify H.R. 3's tax penalty on the purely
private funding of abortion, directly conflicts with Congress's
and the courts' longstanding view of the tax treatment of
private funds.
Under this theory, for example, favorable tax treatment for
religious organizations or for individual contributions to
religious organizations would qualify as Federal funding of
religion, raising First Amendment Establishment Clause
concerns. Of course, the Supreme Court has never considered the
favorable tax treatment of private funds to constitute Federal
funding in that context:
The grant of a tax exemption is not sponsorship since
the government does not transfer part of its revenue to
churches but simply abstains from demanding that the
church support the state. No one has ever suggested
that tax exemption has converted libraries, art
galleries, or hospitals into arms of the state or put
employees ``on the public payroll.'' There is no
genuine nexus between tax exemption and establishment
of religion.\30\
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\30\Walz v. Tax Commission of City of New York, 397 U.S. 664, 675
(1970) (upholding property tax exemptions for religious organizations).
Just as favorable tax treatment does not convert private
funds paid to religious organizations into Federal funding of
religion, allowing private funds paid for abortion-related
services to be treated as permissible medical expenses under
the Internal Revenue Code does not convert those private funds
into Federal funding of abortion. Section 303 does not target
Federal funds but, instead, targets and penalizes the use of
private funds. H.R. 3 is a radical departure from current tax
treatment of medical expenses and insurance coverage; and it is
not justifiable nor necessary to prevent Federal funding of
abortion.
III. H.R. 3 SEEKS TO ELEVATE THE RIGHT TO REFUSE CARE ABOVE THE
OBLIGATION TO PROVIDE LIFE-SAVING CARE AND GRANTS UNPRECEDENTED SPECIAL
RIGHTS TO THOSE WHO REFUSE TO PROVIDE ABORTION-RELATED CARE.
As originally enacted, conscience-clause provisions
protected a provider's right to refuse or to provide abortion-
related care, and linked the right to refuse to provide care to
religious beliefs or moral convictions.\31\ Starting in 2005,
however, the right to refuse to provide care has been greatly
expanded in certain appropriations bills, granting anyone who
qualifies as a ``health care entity'' the right to refuse to
provide abortion-related services for any reason
whatsoever.\32\ Thus, while H.R. 3's sponsors claim that
section 311 is needed to protect rights of conscience, citing a
desire to protect religiously affiliated hospitals and
individual health care workers, the broad right they seek to
enshrine in Federal law lacks any connection to conscience-
based reasons for refusing care and is not limited to
individuals or faith-based providers.
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\31\See, e.g., P.L. 93-45, Sec. 401, codified at 42 U.S.C.
Sec. 300a-7 (the ``Church Amendment,'' named for its principal sponsor,
Senator Frank Church, and first enacted in 1973).
\32\See section 311 of H.R. 3; see also P.L. 111-117, div. D, tit.
II, Sec. 508(d)(2) (``health care entity'' includes ``an individual
physician or other health care professional, a hospital, a provider-
sponsored organization, a health maintenance organization, a health
insurance plan, or any other kind of health are facility, organization,
or plan.'').
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Representative Nadler explained the breadth and impact of
section 311's refusal right during the markup of H.R. 3:
Under section 311, for example, a state that requires
an insurance company to provide coverage for an
abortion, made necessary because a woman needs to start
immediate cancer treatment, could not be enforced
against any insurance company that chose not to provide
that coverage, regardless of the reason for doing so.
So we are not talking, necessarily, about a right of
conscience. If the insurance company came out and said,
we don't want to obey the State law that requires us to
pay for an abortion made necessary by a woman's cancer,
because we don't want to spend the money, we have no
ethical or moral or conscience objection, we just don't
want to spend the money, section 311 would trump the
State law that was enacted to protect the woman's
health in that case.\33\
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\33\Markup Transcript, supra note 1, at 122.
Seeking to at least ensure equal protection for those who
provide medical care, Representative Nadler offered an
amendment that would provide this reciprocal right, including
the new private right of action created by section 311. That
amendment was not agreed to, with Representative Franks
expressing concern that the amendment would undermine
government efforts to restrict women's access to abortion
services.\34\ Majority Committee Members expressed no
equivalent concern for women in need of care, also rejecting
several other amendments offered to safeguard women's
health.\35\
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\34\Id. at 124.
\35\Majority members of the Committee would not agree to several
amendments that would have provided funding or coverage where an
abortion is necessary to preserve a woman's health, including a
specific amendment offered by Representative Wasserman Schultz to
protect the health of women with cancer. Majority members also would
not agree to an amendment offered by Representative Sheila Jackson Lee
that would restore language previously include in the Hyde Amendment
that allows funding where continuing a pregnancy could cause ``severe
and long-lasting'' damage to a woman's health.
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Representative Franks opposed these amendments as
unwarranted departures from current law\36\ while
characterizing H.R. 3 as codifying existing refusal rights.\37\
But section 311 departs from current law in at least two
critically important respects.
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\36\See, e.g., Markup Transcript, supra note 1, at 72
(Representative Franks opposed Representative Jackson Lee's amendment
to allow abortion where continuing a pregnancy could cause ``severe and
long-lasting damage to a woman's health'' on the ground that ``[t]he
Hyde Amendment does not contain a broader exception for health, and
there is no reason to add one here. Such language has never been part
of the Hyde Amendment. . . .''). As Representative Nadler pointed out,
however,''[t]he health exception was in the Hyde Amendment for many
years. . . .'' Id. at 73.
\37\Id. at 13 (``Both the funding policies and the conscience
protections of this bill have been Federal law for decades. . . .'').
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First, as interpreted by its key sponsors, section 311 does
not respect well-established law requiring life-saving care.
Current law on this point is clear: no one has the right to
refuse to provide emergency life-saving care, even if that
requires performance of an abortion. Indeed, Representative
David Weldon, the original author of the refusal language
included in H.R. 3, made clear that his nondiscrimination
language ``simply prohibits coercion in nonlife-threatening
situations.''\38\
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\38\151 Cong. Rec. H177 (daily ed. Jan 25, 2005) (statement of Rep.
David Weldon).
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Seeking to clarify that current law on this point will be
respected, Representative Judy Chu offered an amendment to
confirm that the right to life-saving care would survive H.R.
3's enactment. As Representative Chu explained:
I hope that no one here would suggest that this bill
allows women coming into a hospital for life or death
care would be provided with anything less than the best
and fullest care. In fact, I fully expect my colleagues
on the other side to tell me that this amendment isn't
needed because the bill doesn't affect EMTALA
[Emergency Medical Treatment and Active Labor Act]
provisions, but I am very, very concerned that the
language in the Manager's Amendment regarding refusal
is broad enough and vague enough that some providers
may not understand that what we here in this room all
agree, which is that EMTALA supersedes refusal
provisions.\39\
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\39\Markup Transcript, supra note 1, at 172-73.
However, rather than confirm an intent to respect current
law, Representative Franks objected to the amendment, arguing
that it ``would gut the conscience provision,'' and Majority
Members of the Committee voted it down.\40\ This departure from
existing law finds no support from its original author,
Representative Weldon, who described the provision as applying
to ``non-life threatening situations'' and took the unequivocal
position that ``in situations where a mother's life is in
danger a health care provider must act to protect the mother's
life.''\41\ It is also at-odds with the position of the
Catholic Health Association (CHA), the national leadership
organization of more than 2,000 Catholic health care entities.
While CHA supports the Weldon nondiscrimination language, it
does not seek to elevate the right of refusal over the
obligation to provide life-saving care: ``CHA member hospitals
have been providing compassionate, quality care under both
EMTALA and the `Weldon Amendment,' without conflict since the
enactment of these provisions. Accordingly, CHA does not
believe that there is a need for the provider nondiscrimination
section to apply to EMTALA.''\42\
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\40\Id. at 175. An amendment offered by Representative Chu to
ensure that nothing in H.R. 3 deprives women of the right to get full
and accurate information about their medical condition and care also
was not agreed to.
\41\151 Cong. Rec. H177 (daily ed. Jan 25, 2005) (statement of Rep.
David Weldon).
\42\Letter from Sr. Carol Keehan, President and CEO, Catholic
Health Association of the United States, to Joseph R. Pitts, Chairman,
House Energy and Commerce Subcommittee on Health, U.S. House of
Representatives (Feb. 9, 2011) (emphasis in original) (submitted for
the record of the Constitution Subcomm. Hearing, supra note 2).
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Section 311 also departs from existing law by creating an
unprecedented private cause of action any time there is ``an
actual or threatened violation'' of its non-discrimination
requirement. Thus, for example, a health care entity might sue
a state under section 311 for requiring emergency care as a
condition of state licensing, regardless of whether actual
discrimination ever occurs. In fact, the mere existence of a
state law requiring an insurance company to provide coverage
for abortion in cases where a woman has cancer and needs to
start treatment immediately, or in other cases where a woman's
health is in serious danger, might entitle the entire universe
of ``health care entities'' to sue the state for money damages.
This unprecedented special right to receive compensation
absent actual discrimination does not exist in other contexts.
It is remarkable that, under the guise of preventing taxpayer
funding of abortion, H.R. 3 seeks an entitlement to damages for
an unlimited universe of individuals and organizations who have
suffered no actual harm.
IV. H.R. 3 SINGLES OUT WOMEN AND FAMILIES IN THE DISTRICT OF COLUMBIA
FOR PARTICULAR HARM, UNJUSTIFIABLY RESTRICTING THE DISTRICT'S USE OF
LOCAL FUNDS.
Section 310 of H.R. 3 singles out the District of Columbia
and places additional limits on the District's use of its own,
non-Federal funds for abortion-related care or coverage.
Because of H.R.3's unprecedented impact on her district,
Representative Eleanor Holmes Norton asked to testify before
the Constitution Subcommittee. Breaking with the Committee's
past practice of granting other Members with a particular
interest in a bill or issue the opportunity to testify, the
Majority refused our colleagues' request.
Having been denied the opportunity to appear,
Representative Norton submitted a prepared statement,
explaining among other things, how H.R. 3 represents a radical
departure from Congress's historic consideration of the
District:
H.R. 3, however, not only seeks to re-impose the ban on
the District's use of its local funds for abortion, but
also to make it permanent. This bill presents a new and
expanded way to deny the residents of the District of
Columbia their democratic rights. Unlike the prior
prohibitions on the District's use of its local funds,
section 310 states that the ``term `Federal Government'
includes the government of the District of Columbia.''
Declaring that the District is a part of the Federal
Government for the purpose of abortion is an
unprecedented violation of the District's right to
self-government.\43\
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\43\Constitution Subcomm. Hearing, supra note 2 (written testimony
of Hon. Eleanor Holmes Norton, at 2).
As Representative Norton's testimony makes clear, some
Congresses have restricted the District's use of its own funds,
but others have accorded the District the same respect afforded
to the states with regard to decisions about the use of local
funds. If H.R. 3 should become law, the District's discretion
to make the funding decisions that best serve the needs of its
residents will be permanently restricted.
During Committee markup of H.R. 3, Ranking Member John
Conyers, Jr. offered an amendment to prevent imposition of this
permanent restriction. Echoing his prior disappointment that
the Committee had not honored Representative Norton's request
to testify, Ranking Member Conyers sought to ensure that, as
with constituents in other Members' districts, the women and
families who reside in the District of Columbia should have the
same assurance that their elected representatives can spend
local funds to serve their best interests, not those of certain
Members of Congress:
Given the unique impact the bill has on the District
of Columbia, I offer this amendment that would ensure
that, like citizens elsewhere in the country, the
citizens of the District would be able to use their own
money, not Federal funds, but money from the District's
own general revenue fund that comes from District
residents.\44\
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\44\Markup Transcript, supra note 1, at 34.
Committee Chairman Lamar Smith responded that, by virtue of
Congress's unique relationship with the District, whereby
Congress approves all District funding and technically
appropriates those funds, the funds in the District's general
revenue are converted to Federal funds. Despite Ranking Member
Conyers' efforts ``to make sure that you heard this part of my
comment, that there are monies that come into the treasury of
the District of Columbia that are not Federal monies,''\45\
Majority Members of the Committee would not agree to the
amendment.
---------------------------------------------------------------------------
\45\Id. at 36.
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As with the fiction created to justify section 303 of the
bill, this politically convenient funding fiction, used here to
justify restrictions on the District's use of its own local
funds, should be rejected. Women and families who live in the
District should not be subject to additional harm simply
because of where they live. They deserve the same guarantee
afforded to constituents elsewhere: the fundamental assurance
that their local elected representatives will act in their best
interests or answer to the democratic process. We would never
tolerate Congress treating our own constituents this way; we
should show the same regard for the Americans who live in the
Nation's Capitol.
CONCLUSION
H.R. 3 is not a modest effort to codify existing
restrictions on Federal funding of abortion but part of an
aggressive campaign to roll back women's rights, without regard
for the impact on women's health, lives, or families. H.R. 3's
aggressive tax provision has no corollary in existing law. It
is an untested and unjustifiable penalty on privately funded
health care choices that some Members of Congress oppose.
Through Federal funding restrictions that have been in
place for more than three decades, Congress has used economic
coercion in an effort to limit women's access to abortion.
Until now, that coercion has been directed against the poor and
women dependent on the Federal Government for health care. Now,
all women and their families have been targeted.
Women in America have the fundamental right--guaranteed by
the Constitution that we take an oath to support and defend--to
make the profound and deeply personal decision of whether to
carry a pregnancy to term. H.R. 3 burdens that right in a
variety of ways that have nothing to do with Federal funding of
abortion. Accordingly, we adamantly oppose this bill.
John Conyers, Jr.
Howard L. Berman.
Jerrold Nadler.
Robert C. ``Bobby'' Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
Steve Cohen.
Henry C. ``Hank'' Johnson, Jr.
Mike Quigley.
Judy Chu.
Ted Deutch.
Linda T. Sanchez.
Debbie Wasserman Schultz.