Praising the Senate Health Bill: Worldly Wisdom or Nunsense?

Chuck Donovan /

As the beneficiary of 16 years of Catholic education, eight of them under the tutelage of the Sisters of Charity in Cincinnati, I am inclined by habit to nod in swift concurrence whenever the good sisters speak. Not today.

A letter released yesterday by 60 leaders of Catholic women’s religious orders argues that the Senate-passed version of health care reform does not provide for funding of elective abortion and is thus the “REAL [capitalization in original] pro-life” option. The Catholic bishops, the non-sectarian National Right to Life Committee and, this morning, the Council of Major Superiors of Women Religious strongly disagree.

The dispute has emerged with greater force after it became clear last week that any commitment by the Democratic leadership in Congress to “fix” the Senate bill’s defective abortion limitation language was unenforceable – a piecrust promise. Not only would the Senate’s traditionally stronger corps of anti-Hyde amendment votes ensure defeat of any abortion language fix, but 41 Republican senators signed a letter to oppose any policy-making on the reconciliation bill that would ferry the fix to enactment – a pledge that clearly would include the doomed abortion limitation.

As a consequence, the Senate bill’s multiple pathways to subsidize health plans that include elective abortion or to even fund abortion directly will become law once the House passes the Senate bill and sends it to President Obama. The women religious who have advocated this course are part of a small chorus of Catholic voices who argue that the Senate bill seals off taxpayer participation in abortion, and particularly that the community health services funding in the bill is covered by Department of Health and Human Services regulations that bar their use in any facility or program that provides elective abortion.

But the argument is circular. The regulations cited are based on the Hyde amendment itself, which applies to funds appropriated in the annual spending bill for HHS. The Senate health bill directly appropriates $8.5 billion over five years to HHS for community health centers, and if the Hyde amendment is to be construed as applicable to these funds it is clearly voluntary on HHS’s part. The case is strengthened by the fact that the Senate bill, H.R. 3590, explicitly applies an abortion funding exclusion to other new spending included in the Senate bill, for example, new money for school-based clinics.

The Senate bill contains no parallel exclusion for the community health centers. The White House and HHS officials contend that the existing Hyde Amendment regulations will be applied to these funds. House members inclined to disbelieve this pledge have evidence for their position. Within the past 14 months the Obama Administration has: 1) restored foreign assistance funds to family planning groups that provide and promote abortion overseas; 2) championed and achieved legislation for the District of Columbia to spend local government revenue on abortion even though the funds pass through the U.S. Treasury; and 3) rescinded regulations promulgated under the Bush administration to give teeth to statutory conscience rights that had hitherto lacked regulatory implementation. In short, regulatory interpretations and policies can change – and change overnight.

Moreover, fresh litigation from pro-choice groups over this issue is likely, as on many other provisions of the bill. Of the 17 states that currently provide public money for abortion under state insurance plans, 13 do so as a result of court decision.

The contention that the extant HHS regulations regarding the Hyde Amendment apply — when the Senate bill is silent on the matter, the Obama administration clearly favors the opposite outcome, and the issue is a primary stumbling block to passage of a bill strong majorities of Americans oppose on other grounds as well – is conveniently timed but ultimately unpersuasive, the good sisters notwithstanding.