Updated Again!: Factchecking Factcheck.org: No Abortions With the Health Care Reform Bill

(Who knew? A friendly little reminder that a factcheck.org piece is mistaken, and it turns into something of a war? Come on, guys… we all make mistakes; it's okay…)

Look; I like Factcheck.org. They perform an essential public service, and they are usually right about the facts, even when I disagree with their conclusions. But I got one in my e-mail on Friday that is absolutely WRONG. You can go here to read the whole article, but here's a summary:

Abortion: Which Side Is Fabricating?

Despite
what Obama said, the House bill would allow abortions to be covered by
a federal plan and by federally subsidized private plans.

August 21, 2009

Summary

Will health care legislation mean "government funding of abortion"?

President Obama said Wednesday that’s "not true" and among several
"fabrications" being spread by "people who are bearing false witness."
But abortion foes say it’s the president who’s making a false claim.
"President Obama today brazenly misrepresented the abortion-related
component" of health care legislation, said Douglas Johnson,
legislative director for the National Right to Life Committee. So which
side is right?

The truth is that bills now before Congress don’t require
federal money to be used for supporting abortion coverage. So the
president is right to that limited extent. But it’s equally true that
House and Senate legislation would allow a new "public"
insurance plan to cover abortions, despite language added to the House
bill that technically forbids using public funds to pay for them. Obama
has said in the past that "reproductive services" would be covered by
his public plan, so it’s likely that any new federal insurance plan
would cover abortion unless Congress expressly prohibits that. Low- and
moderate-income persons who would choose the "public plan" would
qualify for federal subsidies to purchase it. Private plans that cover
abortion also could be purchased with the help of federal subsidies.
Therefore, we judge that the president goes too far when he calls the
statements that government would be funding abortions "fabrications."

I urge everyone to go read the article in its entirety, and you'll note something missing in the analysis…

It's called the Hyde Amendment.

It's barely mentioned in this piece, but it is key to this entire argument. The Hyde Amendment is a rider that is attached to every annual Department of Labor and Department of Health and Human Services appropriations bill that prohibits the use of federal money appropriated under these two departments for abortions, other than those to save the life of the mother, rape or incest. To give you an indication, before the Hyde Amendment was enacted in the appropriations for fiscal year 1977, Medicaid paid for nearly 200,000 abortions. During fiscal year 2004, they paid for 159. 

Let me reiterate; it BANS the use of ANY appropriations to either Labor or HHS for abortions, except in those extremely limited circumstances. This is an important point, because HR 3200 puts the entire public health insurance system into the Departments of Labor and HHS. That includes, Medicaid and Medicare, but it's been expanded to include ANY health insurance plan that uses federal government money. Here is the current text of the Hyde Amendment, as was included in the Consolidated Appropriations Act 2008:

SEC. 507. (a) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are
appropriated under this Act, shall be expended for any abortion.
(b) None of the 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 health benefits coverage that includes coverage of abortion.
(c) The term ‘health benefits coverage’ means the package of services covered by a managed care provider
or organization pursuant to a contract or other arrangement.
SEC. 508. (a) The limitation established in the preceding section 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, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a
physician, place the woman in danger of death unless an abortion is performed.
(b) 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).
(c) Nothing in the preceding section shall be construed as restricting the ability of any managed care provider from offering abortion coverage or the ability of a state or locality to contract separately with such a provider for such coverage with State funds (other than a State’s or locality’s contribution of Medicaid matching funds).
(d) (1) None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discriminate on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.
(2) In this subsection, 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.

That's it. It is absolutely airtight, and does not allow the use of ANY money appropriated to the DOL or DHHS to be used for abortions.

HR 3200, which is the main health care bill from which all others have basically derived, puts the entire health insurance reform apparatus in the hands of the Department of Labor and the Department of Health and Human Services. In that bill, there is no mention of abortion, period. There is also no repeal of the Hyde Amendment anywhere in this bill, and it would take a two-thirds vote to remove it from an appropriations bill. Many women's rights groups have been trying to kill the Hyde Amendment for years, with absolutely no success; the Supreme Court has even ruled it constitutional. 

Exacerbating the problem for Factcheck in its analysis is something called the Capps Amendment. The Capps Amendment was passed by the House Energy and Commerce Committee, and specifically mirrors the Hyde Amendment. Its language makes clear that, if the abortion is prohibited under Medicare and Medicaid, it is also prohibited under the public health care plan.

I sent Factcheck a little note, expressing my surprise that they could get something so wrong. Here is the response I received, just minutes ago:

The Hyde Amendment applies only to the
appropriations bills to which it is regularly attached, and has no effect on
the House bill or any other health care legislation now before Congress.

 

The Hyde restrictions on Medicaid funding of
abortions would not in any way prevent Obama or his HHS secretary from ordering
that /all/ abortions be covered under a public plan, and it would not prevent
subsidies paid under the new health care legislation from being used by low-
and moderate-income families  to buy
private plans that cover all abortions.

 

Brooks Jackson

Director, FactCheck.org


All, I can say, Mr. Jackson, is that you are absolutely wrong. As you can see by the current incarnation of the Hyde Amendment, it is simply not possible for ANY money appropriated to either Labor or HHS to be used for abortions. The problem you suggest is possible was already addressed back in the late 1990s, when states started using Medicaid money to provide managed care plans to low-income families. So, the Hyde Amendment WOULD prevent subsidies to low- and moderate-income families. 

Now, can states offer abortions using STATE and PRIVATE money for abortions? Sure they can.  In fact, 17 states currently fund abortions through Medicaid programs; they just don't use federal funds. Can private insurers pay for abortions, even if they receive federal money? I suppose it's possible, but like the states, they would have to use their own money, and they would have to show that no federal money was used. And the Capps Amendment actually reiterates that the public plan cannot use federal money to pay for abortions that are not currently allowed under Medicaid. Without the repeal of the Hyde Amendment, which has been tried and failed many times over the last 33 years, it is simply not possible for anyone to get an abortion under public insurance, except in those rare exceptional cases mentioned above.

Therefore, the claim at the top of your post:

Despite
what Obama said, the House bill would allow abortions to be covered by
a federal plan and by federally subsidized private plans.

Is not factually accurate. It would NOT "allow" abortions. Only a repeal of the Hyde Amendment would "allow" abortions to be paid for with government money. And this bill does not repeal that.

Once more, I appreciate what Factcheck.org does, just as I appreciate what Media Matters does. But not even they are correct all of the time. We owe it to ourselves to check the facts, regardless of the source.

And just for the record, I would like to see an end to the Hyde Amendment. Forcing poor women who don't want them to have a child, anyway is just a recipe for disaster, and frankly, it's a violation of their rights. But that's an argument for another day; right now, we need to pass health insurance reform, and the distractions are becoming increasingly inane. Nothing in this bill repeals the Hyde Amendment, and without that repeal, NO federal funds can be used for abortions that do not fit into three very narrow categories.

————————————

UPDATE!!

I received another response in this morning's mail:

You're entitled to your opinion, but we disagree.

Hyde applies to "this Act," which is the HHS
apprpriations bill for FY 2009 (and, if renewed annually as it has been in the
past, to future appropriations bills.)

H.R. 3200 is a separate act, and it makes its own
appropriations. And Hyde doesn't cover those funds.

See  for example
SEC. 207. HEALTH INSURANCE EXCHANGE TRUST FUND on  p.

109, and the language on p. 120 that appropriates
"such funds as may be necessary" to finance the public option.  Those funds are not covered by the
appropriations bills to which Hyde is annually attached.

Brooks Jackson

Director, FactCheck.org

My response follows:

First of all, HR 3200 doesn't appropriate anything; it
can't. Appropriations is a separate process, requiring a separate bill or set
of bills. While HR 3200 directs certain amounts of money to certain functions, it
doesn't appropriate money, because it can't. For one thing, the bill directs
certain monies to be used over the course of ten years, and the Constitution
limits appropriations to two years.

I thought this was basic civics. First Congress passes a
bill, then the Executive Branch creates a budget, then Congress passes
appropriations to cover the activities that bill creates. HR 3200 doesn't
appropriate money. The Hyde Amendment has been attached to pretty much every
Appropriation for DOL and DHHS (or any of its various iterations) since FY 1977,
and it's not going away anytime soon.

Based on the language in the Hyde Amendment, it WOULD
cover HR 3200 if passed in roughly the same form as it has been for the last 12
fiscal years, because it covers ALL APPROPRIATIONS for both DHHS and DOL. It's
really that simple. Everything in this bill is administered by the Departments
of Labor and Health and Human Services. This is not "my opinion;" the
bill itself places the creation of the public insurance system and the
oversight of health insurance reform in the hands of those two departments. And
the Hyde Amendment, in plain language, covers every health care dollar appropriated
to both departments.

This is not "my opinion," these are facts. It's
clear from the language in both HR 3200 and the Hyde Amendment that it would be
impossible to use any of the funds generated by this bill for abortions UNLESS
there were major changes to the Hyde Amendment. I put the language of the Hyde
Amendment in my analysis; where's the exception that would allow the insurance
system created by HR 3200 to use money for abortion.

The Hyde Amendment to the Consolidated Appropriations Act
2008 states:

    SEC. 507. (a)
None of the funds appropriated in this Act, and none of the funds in any trust
fund to which funds are appropriated under this Act, shall be expended for any
abortion.

    (b) None of the
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 health benefits
coverage that includes coverage of abortion.

    (c) The term
‘health benefits coverage’ means the package of services covered by a managed
care provider or organization pursuant to a contract or other arrangement.

"None of the funds" is pretty clear. If the
Hyde Amendment doesn't change — and the language has been largely the same
since 2002, and had contained almost exactly the same language since 1998 —
there is no way the system created by HR 3200 could use public money for
abortions, except to save the life of the mother, rape and incest. It's just not
possible.

Therefore, it is not a factual statement to claim, as you
have:

"Despite what Obama said, the House bill would allow
abortions to be covered by a federal plan and by federally subsidized private
plans."

HR 3200 can't "allow" anything, if the use of
appropriated funds is prohibited. Again, that's not "my opinion."
There is no language in HR 3200 that repeals, alters or carves out an exception
to the Hyde Amendment, and unless the Hyde Amendment is repealed or altered
significantly, federal funds (and all funds generated by HR 3200 are, by
definition, federal funds) cannot be used for abortions.

Yours is a fine organization, but it's not perfect. No
one expects it to be. But there is only one set of facts. If the Hyde Amendment
continues to exist, there can be no federally funded elective abortions,
period. And despite your assertions, nothing in the language of HR 3200 alters
that reality. Therefore, your statement is not factual.

And that is not merely "my opinion." I just
proved it. For the second time. 

——————————-

An addendum to this…

Someone just pointed out to me that HR 3200 creates a trust fund, and therefore, most of its money will not come from appropriations. Well, here's the language from the bill that creates the trust fund:

SEC. 207. HEALTH INSURANCE EXCHANGE TRUST FUND.
(a) ESTABLISHMENT OF HEALTH INSURANCE EXCHANGE TRUST FUND.—There is created within the Treasury of the United States a trust fund to be known as the ‘‘Health Insurance Exchange Trust Fund’’ (in this section referred to as the ‘‘Trust Fund’’), consisting of such amounts as may be appropriated or credited to the Trust Fund under this section or any other provision of law.

Now, here's the Hyde Amendment (2008) again:

SEC. 507. (a)
None of the funds appropriated in this Act, and none of the funds in any trust
fund to which funds are appropriated under this Act, shall be expended for any
abortion.

    (b) None of the
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 health benefits
coverage that includes coverage of abortion.

    (c) The term
‘health benefits coverage’ means the package of services covered by a managed
care provider or organization pursuant to a contract or other arrangement.

Now, I challenge ANYONE to find an exception for that trust fund in the above passage from the Hyde Amendment. 

The government can't pay for elective abortions with appropriated money…

Government trust funds can't pay for elective abortions if any of their money is appropriated (and it's difficult to imagine that any public insurance program will be 100% self-sustaining; at the very least, they'll have to appropriate money for administration.)

And no private insurance company working within the exchange, and therefore gets subsidies of any kind from the federal government can pay for elective abortions. 

Therefore, it is simply NOT TRUE that anything in HR 3200 would "allow" the government to pay for elective abortions.

I would never claim to always be right.
But you apparently don’t even know what the Hyde Amendment is.
The Hyde Amendment is a rider that must attach to every appropriations bill that includes any appropriation for any sort of health care. Appropriations, not resolutions. Note the difference. It is not possible to appropriate money for the Departments of Labor and Health and Human Services without including the Hyde Amendment. Now, the Hyde Amendment is negotiated every year, and I guess it’s possible to completely gut it in the negotiations. But the genius at FactCheck is saying that THIS BILL (HR 3200) would “allow” money to be used for abortion, and it’s simply not true. It might be possible that the Hyde Amendment might be changed, altered or done away with, but so far, that hasn’t happened in 34 years. But THIS BILL doesn’t change the ability of the government to pay for abortion; the Hyde Amendment would prevent that.

You are free to insist upon any novel reading of the code you wish, but the Hyde amendment only applies to resolutions passed up until the time of passage of the Hyde amendment and to appropriations passed to finance those resolutions. Since nationalized health care is a new resolution the Hyde amendment does not apply unless it is specifically attached to the bill.
I appreciate your self confidence but you might take a moment out of your busy day and consider that you may be (and in fact are) occasionally wrong.
Kind Regards

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