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Sunday, March 21, 2010

Inside story from Capitol Hill on Obama exec. order on abortion

President Obama has gained the votes of some pro-life Democrats through an executive order on abortion and conscience rights.
That means the pro-life Democrats have gained a temporary document stating the personal policy of this President for this moment. An executive order can be changed tomorrow by this President, or later by any subsequent President, with the stroke of a pen. The healthcare bill, however, becomes permanent law.
The executive order also adds little, if anything, to what is already in the healthcare bill.
On conscience rights, the Obama executive order (pasted below) offers absolutely nothing whatsoever beyond what already exists in federal law. Moreover, the administration is loath to enforce existing conscience-protecting law, having announced plans to rescind the only federal regulation enforcing those laws.
The executive order asserts that “new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.” However, that statement only reveals half the reality. The weak Senate bill conscience language prohibits discrimination by health plans but does not prohibit governments from discriminating against pro-life healthcare professionals.
This just received from a trusted colleague inside the House of Representatives:
Rep. Bart Stupak (D-MI) and an unspecified group of his block of pro-life Democrats have announced their intention to vote for the Senate health care bill despite provisions that allow funding for abortion and abortion coverage.  They have made this decision based on an agreement with the President who has promised to issue the Executive Order pasted below. 
As you can see, the Executive Order does not apply the principles of the Hyde amendment.  Instead it reiterates the Senate language that allows subsidies for insurance policies that cover abortion by collecting a special abortion fee from every person who enrolls in a plan that covers abortion.  This approach is contrary to the clear language of the Hyde amendment which states, no taxpayer funds “shall be expended for health benefits coverage that includes coverage of abortion.” 
By providing abortion coverage to millions of Americans who currently do not have such coverage, the pending legislation will contribute to an increase in the number of abortions.  Even Alan Guttmacher Institute research demonstrates that when abortion funding is made available the number of abortions increase by roughly 25% for the covered population. 
Even if the text of the Executive Order were to effectively apply the Hyde amendment to the Senate health care bill (which it does not), it would still be ineffective because Executive Orders cannot overturn statutory law.  Even pro-abortion Representative Debbie Wasserman Schultz (D-FL) speaking on this abortion Executive Order has said that it cannot change the law.
Text of the Executive Order
The White House
Office of the Press Secretary
For Immediate Release
March 21, 2010
Statement from Communications Director Dan Pfeiffer
Today, the President announced that he will be issuing an executive order after the passage of the health insurance reform law that will reaffirm its consistency with longstanding restrictions on the use of federal funds for abortion.

While the legislation as written maintains current law, the executive order provides additional safeguards to ensure that the status quo is upheld and enforced, and that the health care legislation’s restrictions against the public funding of abortions cannot be circumvented.

The President has said from the start that this health insurance reform should not be the forum to upset longstanding precedent.  The health care legislation and this executive order are consistent with this principle.

The President is grateful for the tireless efforts of leaders on both sides of this issue to craft a consensus approach that allows the bill to move forward.

A text of the pending executive order follows:

EXECUTIVE ORDER

- - - - - - -

ENSURING ENFORCEMENT AND IMPLEMENTATION OF ABORTION RESTRICTIONS IN THE PATIENT PROTECTION AND AFFORDABLE CARE ACT

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the “Patient Protection and Affordable Care Act” (approved March __, 2010), I hereby order as follows:

Section 1.  Policy. Following the recent passage of the Patient Protection and Affordable Care Act (“the Act”), it is necessary to establish an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment.   The purpose of this Executive Order is to establish a comprehensive, government-wide set of policies and procedures to achieve this goal and to make certain that all relevant actors—Federal officials, state officials (including insurance regulators) and health care providers—are aware of their responsibilities, new and old.

The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly-created health insurance exchanges.  Under the Act, longstanding Federal laws to protect conscience (such as the Church Amendment, 42 U.S.C. §300a-7, and the Weldon Amendment, Pub. L. No. 111-8, §508(d)(1) (2009)) remain intact and new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.

Numerous executive agencies have a role in ensuring that these restrictions are enforced, including the Department of Health and Human Services (HHS), the Office of Management and Budget (OMB), and the Office of Personnel Management (OPM). 

Section 2.  Strict Compliance with Prohibitions on Abortion Funding in Health Insurance Exchanges.  The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014.  The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered) and requires state health insurance commissioners to ensure that exchange plan funds are segregated by insurance companies in accordance with generally accepted accounting principles, OMB funds management circulars, and accounting guidance provided by the Government Accountability Office. 
I hereby direct the Director of OMB and the Secretary of HHS to develop, within 180 days of the date of this Executive Order, a model set of segregation guidelines for state health insurance commissioners to use when determining whether exchange plans are complying with the Act’s segregation requirements, established in Section 1303 of the Act, for enrollees receiving Federal financial assistance.  The guidelines shall also offer technical information that states should follow to conduct independent regular audits of insurance companies that participate in the health insurance exchanges.  In developing these model guidelines, the Director of OMB and the Secretary of HHS shall consult with executive agencies and offices that have relevant expertise in accounting principles, including, but not limited to, the Department of the Treasury, and with the Government Accountability Office.  Upon completion of those model guidelines, the Secretary of HHS should promptly initiate a rulemaking to issue regulations, which will have the force of law, to interpret the Act’s segregation requirements, and shall provide guidance to state health insurance commissioners on how to comply with the model guidelines.

Section 3.  Community Health Center Program.  The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program.  Existing law prohibits these centers from using federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language.  Under the Act, the Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers under section 10503 and all other relevant provisions.  I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law.  Such actions should include, but are not limited to, updating Grant Policy Statements that accompany CHC grants and issuing new interpretive rules.

Section 4.  General Provisions.  (a) Nothing in this Executive Order shall be construed to impair or otherwise affect:  (i) authority granted by law or presidential directive to an agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This Executive Order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This Executive Order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees or agents, or any other person.

THE WHITE HOUSE,

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