Sunday, March 21, 2010

The Bishops, The Health Care Bill, and Misdirection

I may only be writing a slightly-advanced post-mortem regarding the so-called Health Care Reform bill that the House of Representatives is currently debating: Congressman Bart Stupak and his bloc of allied Democratic congressmen announced earlier today that they will now support the bill, based on a promise of an executive order from President Obama that will supposedly prevent federal funds from being used for abortion (more on that later). The turning of the "Stu-Packers" virtually guarantees passage of the bill.

But make no mistake, the Health Care Reform bill will inevitably lead to federal funding and provision of abortions under the new health care system. That is why Cardinal George and the US bishops have been so outspoken in opposing it. Cardinal George and the bishops have pointed out that the only thing that has thus far prevented federal funding of abortions is the Hyde amendment, a piece of legislation restricting the provision of abortion in federal social service spending since the 1970s. Absent the restriction of the Hyde amendment, the way is open to federal funding of abortion. That is why the CHA pronouncement in favor of Obamacare was mistaken: they said that the language of the bill was an "acceptable way" to limit abortion. But the bill has no Hyde-style language, and thus does not actually prevent federal funding of abortion.

Furthermore, it seems that the bishops have been given the "bait-and-switch". Cardinal George, in his statement of March 15, wrote:
The American people and the Catholic bishops have been promised that, in any final bill, no federal funds would be used for abortion and that the legal status quo would be respected.

However, the bishops were left disappointed and puzzled to learn that the basis for any vote on health care will be the Senate bill passed on Christmas Eve. Notwithstanding the denials and explanations of its supporters, and unlike the bill approved by the House of Representatives in November, the Senate bill deliberately excludes the language of the Hyde amendment. It expands federal funding and the role of the federal government in the provision of abortion procedures.

The President promised one thing, and in this health care bill, he is delivering something else. Did he change his mind, or was he never serious about the promise to begin with? Here's a hint: The President is a lawyer, and understands the careful parsing of words. Did he ever promise to include specifically Hyde-like language in the Health Care bill, or did he only make general "promises" like the ones the Cardinal described?

At the root of the matter is the question, "Does the Obama Health Care bill provide federal funding of abortions?"

President Obama, Nancy Pelosi, et al. have been saying "No." And, according to the barest, most legalistic interpretation possible, they're not lying. The bill does not have, anywhere in it, language saying "this legislation provides X billions of dollars to pay for abortions." Nor does it say, "doctors or hospitals under the federal plan must provide abortions according to scheme or formula Z."

OK, great! Right?

No, not so great. This bill doesn't say things like I wrote above because it doesn't need to, in order to open the way for federal funding of abortion. Remember the Hyde amendment, that prevents federal funds from going to abortion? Well, it only applies to annual appropriations in the Health and Human Services budget. And the Obamacare bill is not part of the HHS appropriation: It is separate legislation. So the Hyde amendment doesn't apply. That means that the door is wide open for funding abortion through the Obamacare system. Hence, the bishops' and Cardinal George's insistence that the bill have Hyde-equivalent language in it. Language that it doesn't have. Language that President Obama and Nancy Pelosi refused to include and that the Senate Democrats refused to adopt.

Not only does the Obamacare bill "open the way" to federal abortion funding, but, because of the way the bill is written, it mandates such funding. Why? Because it is a matter of settled constitutional law, since Roe v. Wade, that federal funds cannot be withheld for the provision of abortions unless there is specific legislation requiring such prohibition. In other words, unless Congress specifically forbids funding of abortion, the funding of abortion is required. That's why the Hyde amendment was necessary in the first place. And that's why such a provision was necessary in the Obamacare bill. The President and Mrs. Pelosi didn't need to include abortion funding language in the bill because they knew perfectly well that the settled legal precedents would do it for them in the absence of any Hyde-like language to the contrary.

Now, this isn't just my opinion. This has been the consistent warning of the USCCB. This was the warning of the US Bishops' legal analyst, Richard Doerflinger, who said, in response to HHS Secretary Kathleen Sebelius' assertion that the Obama administration didn't want to fund abortions: "Abortion has a court mandate unless Congress stops it specifically... The Hyde Amendment doesn’t cover this bill, so it is irrelevant." As I said, this is settled constitutional law: Even lawyers for the Bush administration, in examining the issue several years ago, agreed that the precedents were clear.

And if that wasn't enough, Congressman Stupak and the other "pro-life" Democrats had another warning delivered yesterday. Professor Robert Destro, a constitutional law scholar at the Catholic University of America, and expert in the law surrounding abortion, wrote a letter to Stupak on Saturday saying plainly regarding the question of abortion coverage in Obamacare:

It’s not even a close question. Abortions will be covered.

Professor Destro is the former dean of the Columbus School of Law at Catholic University, and has been involved in abortion related litigation for over 30 years. He wrote:
For nearly forty years, the courts have held that there are no medical or economic reasons to distinguish elective abortions from any other medical service. The basic argument is that health care coverage for women cannot be truly “comprehensive” unless – and until – elective abortions are covered just like any other medical procedure. Federal appeals courts have been unanimous in their holdings that when Congress provides funding for “comprehensive” services, it must explicitly prohibit the use of federal dollars to pay for abortions. If there is no explicit prohibition, the courts will order the federal government to pay.

In other words, as I wrote above, the funding of abortion will be required. There will be no choice in the matter, even if the Obama Administration wanted one. The courts must and will follow the legal precedents.

Professor Destro goes on to write:
This has been the law for over thirty years. In Beal v. Doe, 432 U.S. 438, 443 (1977), Pennsylvania women denied coverage for elective abortions under state law sued in federal court, arguing that “Title XIX [Medicaid] requires Pennsylvania to fund under its Medicaid program the cost of all abortions that are permissible under state law.” In Beal, the argument was that Congress’ failure to exclude abortion from the definition of “family planning services” in the 1972 amendments to Title XIX required the states to cover abortion. The courts have always assumed that, without the Hyde Amendment, federal law requires that the federal government must pay for abortions. Neither the argument and nor the precedents have changed. Read together with the case law and Section 1303 of the Senate Bill (which assumes that abortions are a part of a “comprehensive” health care insurance program), we can be virtually certain that the first lawsuit arguing that the Senate Bill requires funding for abortions under the CHC appropriation will be filed before the ink is dry on President
Obama’s signature.

And why is Destro so certain about this?
You may wonder why I am so certain about these conclusions. The answer is simple: I have been involved in the funding fights over abortion since 1977, and helped to write the amicus brief filed by 218 Members of the House of Representatives in Harris v. McRae.

Now it seems to me that there are two possibilities: Either the President, Nancy Pelosi, et al. have been proceeding in wide-eyed innocence and sincerity protesting that the Health Care bill will not fund abortions, in perfect ignorance of the legal ramifications involved, or, they have been engaging in a classic campaign of misdirection, pointing to the bill and its lack of overt funding provisions, all the while hoping you won't notice what constitutional law will mandate. Given the President's deliberate decision not to use Hyde language, his bait-and-switch tactics, and Nancy Pelosi's avid support for abortion-on-demand, I think the latter is far more plausible.

And there is one more piece of evidence: the behavior of the pro-choicers themselves. They have been rabidly hostile (from their point of view, understandably so) to any modification of the Obamacare bill which even approaches Hyde-like language. Just yesterday, Rep. Jan Schakowsky of Illinois reacted vehemently against even the hint that abortion restrictive language would be re-inserted to the Obamacare bill, vowing that 50 democrats would "walk away" if that happened. They wanted the existing language (that which is in the bill being debated now) to remain - a tacit admission that the existing language does open the way for federal funding of abortion. Federal funding of abortion has been the "golden ring" for pro-choicers for over 30 years. If this legislation didn't provide it, you can be assured they wouldn't be satisfied. Even the much-ballyhooed executive order supposedly preventing federal funding is another piece of kabuki-like misdirection: Rep. Diana DeGette, co-chair of the House Pro-Choice Caucus, agreed to the Executive Order "compromise". Why would the leader of the pro-choice caucus agree to something that appears to restrict abortion? Easy, because she and her allies know that, as Professor Destro said, the Health Care bill will end up funding abortions, executive order or no.

A lot of people have been misled by the President and Mrs. Pelosi's campaign of misdirection. It appears that, at best, the leadership of the CHA was bamboozled. Many on the Catholic left, such as many of the writers and readers over at Vox Nova, seem to have been fooled as well. It's understandable: the truth of the issue is buried beneath a deliberately-erected superstructure of obfuscation and outright deception. As his fans never tire of telling us, the President is very smart. It beggars belief to imagine that Mr. Obama didn't know exactly what he was planning to do to Cardinal George, the bishops and Catholics with his bait-and-switch, and what he has been doing of late.

But don't be fooled any longer. The Obamacare legislation will end up funding abortions. The settled law on the matter is clear: not that it could, or may, or might, but that it must.