The effect of the Patient Protection and Affordable Care Act (PPACA) on abortion has been the subject of much controversy, and pro-life members of Congress who voted for PPACA have received strong criticism as well as strong praise.  This memorandum has three purposes.  First, it provides a brief reminder that PPACA contains many provisions reflecting pro-life values and having pro-life effects.  Second, it assesses the two major criticisms of PPACA concerning abortion raised by the U.S. Conference of Catholic Bishops (USCCB).  Although the USCCB has been the most detailed and thoughtful critic of the statute on abortion-related matters, this memorandum concludes that there are convincing answers to the USCCB’s criticisms and thus it was eminently reasonable for pro-life legislators to support PPACA.

Finally, the memorandum concludes that it also makes perfect sense for a pro-life legislator to support further efforts to clarify restrictions on abortion funding and protections of religious conscience in the context of a stand-alone bill.  Unlike the context of the PPACA vote, enactment of stand-alone clarifications will not destroy health-reform legislation and its many positive pro-life features and effects.  But support for such further clarification should in no way be seized on as an admission that PPACA’s provisions against abortion funding were inadequate.

 A.  The Pro-Life Elements of PPACA

First, it is worth briefly remembering the numerous elements of PPACA that reflect pro-life values or will have pro-life effects.  These positive pro-life benefits would have been lost had the health-care reform effort failed.

PPACA enacts multiple forms of support for pregnant women and for childbirth, measures supported by the USCCB and other pro-life groups.[1]  For example, sections 10212 and 10213 provide funds to colleges for a variety of pregnancy and parenting resources for students—an important initiative, because one-fifth of abortions are performed on college students and because significant numbers of women give as reasons for having abortion that having a child would interfere with their education or would be unaffordable because they are students.[2]  The same sections also provide other funding for support for pregnant and parenting teens.  In addition, PPACA § 10909 expands the adoption tax credit and adoption assistance programs in order to make adoption a more attractive and available alternative to abortion.[3]

Indeed, the expansion of health-care access itself provides strong pro-life incentives, among its other benefits to the vulnerable in our society.  Studies indicate that inability to afford a child is a factor in three-quarters of abortions[4] and that women below or close to the poverty level have abortions at a dramatically higher rate than other women.[5]  Because health care is a major cost of child-bearing and child-rearing, access to affordable care reduces incentives for abortion.  As Basil Cardinal Hume, the leading Catholic prelate of England for many years, remarked concerning the positive effects of guaranteed health care in that country:  “‘If that frightened, unemployed 19-year-old knows that she and her child will have access to medical care whenever it’s needed, she’s more likely to carry the baby to term.  Isn’t it obvious?’”[6]

PPACA also contains a number of provisions to ensure that government support for afford health care does not support abortion.  As health-law expert Timothy Jost has noted, several of these provisions are identical to provision in the House version of the bill, which was supported by the USCCB.  Memorandum of Timothy Stoltzfus Jost, Washington and Lee University School of Law, at 3, http://law.wlu.edu/faculty/facultydocuments/jost/Jost_Response_to_Bishops_3.14.10.pdf (hereinafter “Jost Memo”).  PPACA also makes it explicit that states may discourage abortion by outlawing abortion coverage in any policy issued through the state’s exchange.  PPACA § 1303(a).  Within two months of passage, two states had already passed such bans, and up to six others may follow suit this year.  See Ricardo Alonso-Zaldivar, Abortion foes capitalize on health law they fought, Assoc. Press, May 17, 2010, available on Westlaw at 5/17/10 APDATASTREAM 01:31:09 (“Abortion rights supporters are concerned that the list [of states limiting private insurance coverage of abortion] is growing as a result of the new federal law.”).

 B.  The USCCB’s Major Criticisms of PPACA

The pro-life benefits that PPACA brings are important.  But if other parts of the statute gave significant support to abortion, those benefits would not be proportionate to justify its enactment.  The USCCB has argued that the statute will support abortion.  The USCCB’s criticisms deserve serious attention because they are thoughtfully made, and because it has worked over the years for broadened health-care access.  But there are strong answers to both of the USCCB’s major concerns—answers that justified pro-life Democrats voting for PPACA after they secured a clarification from the President that the law would not be used to fund abortions with federal tax dollars.

 1.  Funding of Community Health Centers

The first concern raised by the USCCB is that the statute directly authorizes, even mandates, funding for abortion through the increased funding for community health centers (CHCs) in section 10503.  As the USCCB recognizes, “CHCs have existed for a long time, and so far they have not provided abortions except in the narrow range of cases where Hyde has authorized them (rape, incest, and threat to maternal life).”  USCCB Memo of March 25, 2010, at 3, http://www.usccb.org/healthcare/03-25-10Memo-re-Executive-Order-Final.pdf (hereinafter “USCCB March 25 Memo”).  The USCCB also acknowledges that federal regulations prohibit abortion funding in “programs or projects for health services which are supported in whole or in part by Federal financial assistance . . . appropriated to the Department of Health and Human Services [(HHS)] and administered by the Public Health Service” (42 C.F.R. § 50.301)—and that CHCs have long been subject to these regulations because they are supported by HHS funds.[7]    But the USCCB objects that CHCs have only been denied funds “because all of their federal funding, at least so far, appears to have been made through annual appropriations bills that included the Hyde Amendment,” while PPACA § 10503 “makes a separate appropriation” without including Hyde Amendment language to restrict it.  USCCB March 25 Memo at 3 (emphasis in original).  For this reason, the USCCB claims, these regulations cannot validly be applied to funding appropriated under PPACA.  Id. at 4.

The USCCB’s analysis, however, has a crucial flaw: appropriations to CHC from PPACA cannot be segregated from the range of appropriated funds that have always been explicitly subject to the Hyde Amendment.  As Professor Jost notes, the new CHC funds “are explicitly enhanced funding that will flow into a pool of funding for these programs that is otherwise subject to the Hyde amendment.  Any community health center that attempted to use its funding to provide abortions would be in violation not just of the federal regulations, . . . but also of the Hyde amendment, as they would have no way to segregate the Hyde-appropriated funds from the funds appropriated by this Act.”  Jost Memo at 6.  The USCCB acknowledges that “PPACA appropriations may not be used for abortions in CHCs if they are commingled in a trust fund that is already Hyde-restricted” (USCCB March 25 Memo at 3 n.5), but it claims that PPACA places new CHC funding into a separate account and therefore the Hyde Amendment does not apply.  See id. (“PPACA creates a new fund [the CHC Fund] into which its new appropriations shall be placed”) (emphasis in original).

The USCCB overlooks, however, that payments to CHCs do not come directly from the new CHC Fund.  Rather, the statute directs that the Secretary of HHS “shall transfer amounts in the CHC Fund to accounts within the Department of Health and Human Services to increase funding, over the fiscal year 2008 level, for community health centers and the National Health Service Corps.”  PPACA § 10503(d).  By speaking of “accounts within” HHS and of “increasing” funding, the statute’s terms indicate that the mechanism is to make payments to CHCs from existing HHS accounts, which are subject to the Hyde Amendment, and in which Hyde-restricted money from the ordinary appropriations process would also be commingled.  The statutory text alone, therefore, strongly suggests that added CHC funds cannot be segregated in a way that would ever permit their use to fund abortions.

But if any ambiguity remained in the statute, it was eliminated by executive actions interpreting it.  First, the President’s Executive Order of March 24, 2010, states that the prohibitions on abortion funding from the Hyde Amendment and the longstanding HHS regulations “shall apply to the authorization and appropriation of funds for Community Health Centers under [PPACA]” and “direct[s]” HHS to ensure compliance with the prohibition.  Executive Order, § 3, http://www.whitehouse.gov/the-press-office/executive-order-patient-protection-and-affordable-care-acts-consistency-with-longst.  And HHS confirms, in a recent memorandum explaining the Executive Order, why “abortion funding policies for community health centers will not change.”[8]  The HHS memorandum makes clear that under the statute, the CHC Fund will provide added federal funds for services not under some new mechanism, but “under the existing CHC grants program administered by the Health Resources and Services Administration (HRSA), an agency within the Public Health Service (PHS)” (id.) and in turn within HHS.  The “existing CHC grants program” has long been subject not only to the regulations prohibiting abortion funding, but to the Hyde Amendment itself.  Thus to apply the funding-prohibition regulations here is consistent with and supported by the Hyde Amendment: contrary to the USCCB’s arguments, the application of the regulations to PPACA-based appropriations is supported by statutory authority.  Since the regulations “on their face would apply to these new funds” (HHS Memo), and that application is valid, CHCs cannot use PPACA’s added funds for abortions.[9]

The clarifications in both the Executive Order and the HHS memorandum are very likely to be upheld.  It is commonplace for presidents to issue executive orders directing agencies how to implement laws:  “‘The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the law which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone.’”  Myers v. United States, 272 U.S. 52, 135 (1926) (quoted in Building and Const. Trades Dept., AFL-CIO v. Allbaugh, 295 F.3d 28, 32 (D.C. Cir. 2002)).  An executive order, of course, cannot plainly contravene the statute on which it relies for authority.  But this order is consistent with the most sensible reading of PPACA, since the text of § 10503(d) appears to direct payments to CHCs through existing HHS accounts and programs whose funds are subject to the Hyde Amendment.  Moreover, if there is ambiguity in the statute, courts would have a powerful reason to defer to the executive branch’s construction, because the key issue here is the mechanism within HHS by which funding is implemented: that is, whether funds are distributed through accounts and programs that are Hyde-restricted.  On questions that involve the mechanism within an agency for implementing a statute, courts have strong reason to defer to the construction of the President and the agency, since they are most familiar with, and are charged with, such implementation.

For this reason, the executive-branch commitment, secured by pro-life Democrats, to administer PPACA so as to bar CHCs from using funding for abortions is significant.  The commitment does not contradict the statute; it coincides with the best reading of the text.  But it clarifies the text, on a matter particularly within executive-branch competence.

2.  Abortion and Health-Insurance Plans

The USCCB has also objected to provisions concerning abortion and qualified health-insurance plans participating in the exchange.  The objections arise from the fact that the House version of the bill would have excluded abortion-covering plans from participation in the exchange, requiring individuals seeking abortion coverage to purchase a supplemental plan, while the enacted statute permits abortion-covering plans to participate but requires that premiums covering abortion be made in a separate payment to ensure that no federal funds subsidize abortion.  See PPACA § 1303(b)(2)(B) (as amended in § 10104).

The USCCB’s first objection is that although PPACA “attempts to segregate funds within health plans in order” to ensure that no federal tax credits or other subsidies support funds “used for abortions,” nevertheless the subsidies “are still used to pay overall premiums for health plans covering abortions.”  USCCB March 25 Memo at 4.  At various times, opponents of the statute’s approach have dismissed it as an “accounting gimmick.”  But the statute pursues the financial separation consistently, requiring not only separate payments but also segregated funds and the application of accounting standards to ensure that federally funded payments to a plan cannot be used to cross-subsidize abortion coverage in the plan.   See PPACA § 1303(b)(2)(C).  The Executive Order, in § 2, describes these restrictions as “strict” and directs HHS to promulgate rules to ensure “[s]trict [c]ompliance” with them.

As long as the strict payment and accounting requirements are fully enforced, they will accomplish the key goal of prohibiting the use of federal funds for abortion.  Although the Hyde Amendment has taken the further step of barring plans covering abortion from receiving any Medicaid funding whatsoever, that approach is not followed in every situation concerning abortion.  As Professor Jost’s memo notes (at 5), “[f]ederal Medicare and Medicaid funds currently help to pay for hospitals that pay for abortion, but they [the funds] do not pay for abortions.”  The principle that government should refuse to fund not just a certain activity, but an entire entity if it engages in that activity in any of its operations, would mean barring religious organizations from government funding for the educational or social services they provide simply because they also teach religion (which the government cannot directly subsidize).  It is reasonable for the government not to carry a funding refusal that far, and instead to focus on strictly ensuring that federal funds do not directly subsidize, or cross-subsidize, abortion.

The small, separate premium paid by individuals to account for abortion coverage in private plans requires somewhat more discussion.  The USCCB warns that this provision would “impose a serious burden on the consciences of millions of Americans” because “[a]ny family having to buy such a subsidized plan—for example, because its coverage or provider network are necessary to meet the family’s health needs—will be forced by the Act to provide a separate payment, on a regular basis, solely to pay for other enrollees’ abortions. . . .  Thus, even if this mechanism succeeds in preventing taxpayers from being forced to pay for abortions through their federal taxes, it does so at the cost of forcing them to pay for abortions directly from their own pockets.”  USCCB March 25 Memo at 4 (emphasis in original).

There is a counterargument, however, that quite reasonably could persuade pro-life members of Congress voting for PPACA.  Many individuals are already paying premiums for abortion-covering plans in the private market—often without even knowing it[10]—and the requirements imposed by PPACA will make such plans less attractive, encouraging plenty of abortion-excluding plans.  The USCCB recognizes “the current injustice” that “when insurance companies and private employers choose the kind of health coverage they will offer, many of them choose to force people to purchase elective abortion coverage whether they want to or not.”  USCCB Secretariat of Pro-Life Activities, Issues of Life and Conscience in Health Care Reform: Analysis of the “Patient Protection and Affordable Care Act” of 2010, at 1-2 (May 24, 2010), http://www.usccb.org/healthcare/PPACA-Analysis-5-24-10.pdf (hereinafter “USCCB May 24 Memo”).  PPACA’s requirements will likely change this situation.  Once PPACA requires that the small premium share attributable to abortion become a separate payment, requiring a second check, many consumers will not wish to pay it and will demand abortion-excluding plans.  This includes both consumers who object to abortion and those who simply do not wish to pay for something they will not need.  Insurers will have strong incentives to offer abortion-excluding plans, both to meet consumer demand and to avoid the administrative costs of processing the separate abortion-allocated check.

When the segregation provision was added to the Senate bill, a prominent health-policy expert concluded that it “could be expected to chill issuers’ willingness to sell” plans covering abortions, because “[t]hey would have to comply with complex audit standards and more importantly, they would have to collect an additional fee from each member of their plan, a step that could be expected to encounter broad resistance.”[11]  See also Jost Memo at 4-5 (“[Plans] that do [offer abortion coverage] will invariably offer an identical plan without coverage for the majority of their market, which does not want to choose abortion coverage. . . .  Many plans currently offer abortion coverage, often without their enrollees knowing it, . . . because the insurers believe it will save them the costs of childbirths.  But once abortion becomes a separate service that must be fully paid for by a separate premium, coverage for it will likely become rare.”).  For precisely this reason, pro-abortion-funding groups excoriated PPACA’s restrictions as an “egregious . . . bureaucratic stigmatization” of abortion.  See NARAL Pro-Choice America, Statement on Health Reform (Mar. 21, 2010), http://www.prochoiceamerica.org/news/press-releases/2010/pr03212010-finalhousehcr.html.

In short, this change in payment structures not only will likely make many abortion-excluding plans available, but also could significantly reduce the “current injustice” (USCCB May 24 Memo at 1) of individuals paying for abortions in health plans without wishing to do so.

C.  Future Stand-Alone Bills Concerning Abortion Funding and Conscience Protection

New legislation has now been proposed aiming to make the abortion-funding prohibitions in PPACA even clearer and to strengthen protection for conscientious objections to abortion and other procedures.  See, e.g., H.R. 5111.  Such a stand-alone bill presents a very different situation than the one that pro-life members of Congress faced with PPACA.  There are reasons, of course, to make conscience protections and abortion-funding restrictions as clear as they possibly can be.  But when pro-life Democrats voted for PPACA in March, they did not face such a simple option.  If they withheld their vote, demanding such provisions, it would have meant only two things.  PPACA would have passed anyway without the additional safeguard against federal abortion funding provided by the Executive Order,[12] and the legislators simultaneously would have been voting against the many pro-life opportunities that PPACA offers: the explicit empowerment of states to restrict abortion-covering plans, the support for pregnant women and adoptions, and so forth, to say nothing of the other contributions the law will make to the common good.  In that context, pro-life Democrats were justified in focusing on whether the protections against abortion funding were strong and adequate, not whether they were perfect.

What is worrisome is the prospect that pro-life Democrats will be discouraged from voting for a stand-alone bill not because they doubt its substantive provisions, but because they know that their political opponents will seize on such a vote to allege that it shows the abortion-funding restrictions of PPACA were inadequate all along.  For opponents to use such a “gotcha” tactic would be terribly wrong.  It is perfectly sensible and logical (a) to conclude that the abortion restrictions in PPACA were strong and fully adequate, warranting a vote for a law that would serve pro-life values in other ways, and also (b) to vote later for a stand-alone bill that makes the restrictions and conscience protections even clearer and does no harm to those other values.  Critics who would use this pair of votes as a tactic against a sincere pro-life liberal would show that they cared more about partisan advantage than about strong pro-life policies.
[1] These measures were proposed in the Pregnant Women Support Act, authored by Democrats for Life of America and endorsed by the USCCB and other pro-life groups.  For fuller discussion of the pro-life benefits of these measures, see “The 95-10 Initiative,” http://www.democratsforlife.org/documents_etc/95-10/95-10%20Document%20_TCB_.pdf.
[2] In a 2004 study, 34 percent of women who had abortions gave as a reason that they “can’t afford a baby now” because they were “students or planning to study, and 38 percent said “having a baby would dramatically change my life” because it “would interfere with education.”  Lawrence B. Finer et al., “Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives,” Perspectives on Sexual and Reproductive Health, vol. 37, issue 3 (Sept. 2005), at Table 2, http://www.guttmacher.org/pubs/journals/3711005.html.
[3] Between 1973 and the late 1980s, the adoption rate plummeted—for example, from about one in five non-marital births to white women to one in 30—as the abortion rate skyrocketed.  National Council for Adoption, Adoption Factbook III, at 281 (1999), http://www.adoptioncouncil.org/docs/AdoptionFactbook.pdf.  Although the rise in abortion was fueled by other factors as well, including the legalization of abortion, the figures support the common-sense judgment that any measure that makes infant adoption more attractive will decrease the number of abortions.
[4] Finer et al., supra note 2.
[5] R.K. Jones et al., “Patterns in the socioeconomic characteristics of women obtaining abortions in 2000-2001,” Perspectives on Sexual and Reproductive Health, vol. 34, issue 5, at 226-35 (Sept./Oct. 2002), available at http://www.guttmacher.org/pubs/journals/3422602.pdf.
[6] Quoted in T.R. Reid, Universal health care tends to cut the abortion rate, Wash. Post, Mar. 14, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/03/12/AR2010031202287.html.
[7] See also 42 C.F.R. § 50.303 (“[f]ederal financial participation is not available for the performance of an abortion in programs or projects to which this subpart applies except” in cases of rape, incest, or danger to the mother’s life).
[8] http://motherjones.com/files/CHC_-_FINAL.pdf (hereinafter “HHS Memo”).
[9] Contrary to the USCCB’s assertion, some previous funding for CHCs has been appropriated outside the annual HHS process.  As the HHS memorandum notes, the regulations barring abortion funding “apply to the $2 billion that were appropriated for community health centers in the American Recovery and Reinvestment Act last year.”  Although that statute contains no explicit Hyde-Amendment language, no objections were raised to it, and CHCs have not been able to use its funds for abortions.
[10] As was the case, notably, with the Republican National Committee’s group health plan.
[11]http://www.gwumc.edu/sphhs/departments/healthpolicy/dhp_publications/pub_uploads/dhpPublication_B30C1DF2-5056-9D20-3D38915B18D7BAAF.pdf.
[12] As Rep. Stupak explained, “Once it was clear that the House leadership would eventually obtain the 216 votes necessary to pass health-care reform, I was left with a choice: Vote against the bill and watch it become law with no further protections for life or reach an agreement that prevents federal funding for abortions.”  Bart Stupak, Why I wrote the “Stupak Amendment” and voted for health care reform, Wash. Post, Mar. 27, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/03/26/AR2010032602921.html.