Thursday April 1, 2010

Comprehensive USCCB Memo again Concludes: Abortion Executive Order Meaningless

By Kathleen Gilbert and John Jalsevac

WASHINGTON, D.C., April 1, 2010 ( – A detailed legal analysis from the U.S. Conference of Catholic Bishops of the health care bill has reinforced the bishops’ conclusion that the Executive Order that Rep. Stupak obtained in exchange for his vote does little to nothing to solve the abortion-related problems in the bill.

The USCCB memo concludes that “the Executive Order cannot and does not fix the statutory problems of direct funding of abortion at CHCs (Community Health Centers), and of funding insurance plans that cover abortions; it cannot and does not make up for the absence of conscience protections that are missing from the statute; and it does not strengthen the conscience protections that are there, though it could have in certain limited ways.”

It also points out that, “Where the Order purports to fix a shortcoming of the Act in these areas, it is highly likely to be legally invalid; and where the Order is highly likely to be legally valid, it does nothing to fix those shortcomings.”

In reference to the funding of CHCs, the memo points out that the bill (referred to as the PPACA in the memo) appropriates billions of dollars for the CHCs that could potentially be used to fund abortions.

Up until the passage of the health bill, the funding for the CHCs was governed by the Hyde amendment, which prohibits federal funding of abortion except in cases of rape, incest or threat to the life of the mother. However, the Democrats’ health bill introduces a new stream of funds that is not governed by Hyde. For this reason, says the USCCB, the “courts are highly likely to read PPACA to require the funding of abortions at CHCs in the absence of a statutory correction.”

In terms of federal funding of abortion, the USCCB memo points out that the health bill does not uphold Hyde-amendment restrictions, since, under Section 1303 of the bill, “tax credits are still used to pay overall premiums for health plans covering elective abortions.” In addition, they say, “This part of PPACA would also impose a serious burden on the consciences of millions of Americans.”

“Any 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.”

Any efforts that President Obama’s executive order purports to make to solve these problems, says the USCCB, are ultimately doomed to be struck down in court since the president “may not amend or otherwise contradict the legislative mandates expressed by Congress in the form of statutory law.”

“Accordingly, if the President were to issue an Executive Order (and perhaps subsequent regulations) that purported to forbid the use of PPACA funds for abortions at CHCs, in a context where statutory terms like those describing the scope of CHC services have long been read by courts to require the use of the funds for that purpose, the Executive Order would almost certainly be struck down as exceeding the President’s authority,” states the memo.

In reference to conscience protections, the USCCB memo points out five striking deficiencies, including most prominently the fact that the PPACA does not include the Welden amendment, which “forbids the federal government, or any state or local government receiving appropriated funds, from discriminating against any health care entity based on its refusal to participate in abortion.”

Hence, “the omission of the Weldon Amendment means that PPACA does not restrain government from discriminating on that basis.”

The memo concludes, “Thus, the shortcomings of the Act remain, and correspondingly, the need for fixes remains. Only Congress, with the consent of the President, has the legal authority to make those fixes.

“Congress and the President should act promptly to do so; they should not await courts’ likely invalidation of the few provisions of the Executive Order that even purport to be fixes.”