Thursday April 1, 2010

ObamaCare Lowdown: What Exactly Will the Health Reform Bill Do?

By Kathleen Gilbert and Peter J. Smith

WASHINGTON, D.C., April 1, 2010 ( – Now that President Obama has signed the Senate health care bill into law, pro-lifers and conservatives may still be wondering exactly what this massive piece of legislation will mean, not only for abortion, but other issues such as health care rationing, government expansion, a new health insurance mandate, and heavy taxation, including what amounts to a penalty for married couples. Following is a list of top concerns over the law as it stands.

Abortion Funding:

As compiled and explained by the National Right to Life Committee, several provisions in the bill present a major threat to the unborn through the expansion of funding for abortion.

Separate funding stream bypasses Hyde amendment protections, Executive Order notwithstanding:

Backers of the Senate health care bill introduced to the House, H.R. 3590, have frequently dismissed pro-lifers’ concerns over abortion funding in general. They have insisted that the current Hyde amendment, which bans Health and Human Services (HHS) funding of abortion except in cases of rape or threat to a mother’s life, also applies.

Yet the language of the bill, as NRLC legal analysis points out, bypasses Hyde by creating a new direct-appropriation funding pipeline that lies outside of the annual appropriations process for the HHS Department.

Lawmakers’ attempts to include explicit Hyde-like bans (Stupak amendment) were shot down repeatedly both in committee and the Senate floor. The Stupak-Pitts amendment sought to prevent federal subsidies from going to health plans that cover abortions, except in cases of rape, incest, and the life of the mother.

Current restrictions in the health care bill say that federal funds cannot be used directly to pay for abortions; however that does not prevent federal dollars from propping up the bottom-line of insurance companies that can re-allocate private dollars to pay for abortions.

Although the Executive Order Obama signed following the bill’s passage purports to apply the Hyde amendment to the bill, the White House’s Robert Gibbs admitted that the president’s directive, revealingly titled “Patient Protection and Affordable Care Act’s Consistency with Longstanding Restrictions on the Use of Federal Funds for Abortion,” merely “reiterates” what is already in the bill, and does not address its inherent flaws.

Direct funding of abortion through the Community Health Centers program: The new law directly appropriates $7 billion for Community Health Centers (CHCs) into a separate fund. Since the funding does not fall under annual HHS appropriations, it is therefore unconnected to any restriction on the use of these funds for abortion.

Some backers of H.R. 3590 have asserted that none of the 1,250 federally funded CHCs provide abortions; yet, the website of the Reproductive Health Access Project strongly assures CHC operators that offering abortions is not only possible, but “important for the health of your patient.”

The President himself defended “reproductive care” – a term typically used to imply abortion services – as “essential care.” Without a legislative statute to the contrary, it is possible that a court challenge launched by pro-abortion groups could open up CHCs to provide abortion.

Other direct appropriations not covered by abortion restrictions: The Senate bill contains additional pools of directly appropriated funds that are not covered by any limitations regarding abortion, including $5 billion for a temporary high-risk health insurance pool program (Sec. 1101 on pages 45-52) and $6 billion in grants and loans for health co-ops (Sec. 1322, pp. 169-180). Only bill-wide, permanent language, such as the Stupak-Pitts Amendment, could have ensured that none of these funds are tapped by pro-abortion political appointees and bureaucrats to pay for abortion.

Federally administered abortion plans: The bill would create a new program under which the federal Office of Personnel Management (OPM) would administer two or more national (“multi-state”) insurance plans. (See Section 1334.)

The bill provides that “at least one” such plan would be subject to limitations on abortion coverage. This implies that other federally administered plans could cover elective abortions, or perhaps even be required to do so by the federal administrator. This is a sharp break from longstanding federal policy, adopted by Congress, under which plans that participate in the OPM-administered Federal Employees Health Benefits (FEHB) program are prohibited from covering elective abortions.

Also, even the purported requirement (pages 2087-2088) that the OPM program offer one pro-life plan is rigged to expire each year; this requirement will remain in force only if pro-life forces prevail annually in preserving pro-life language on an unrelated annual appropriations bill.

The “abortion surcharge”: Section 1303, page 2069 of the bill contains the objectionable “Nelson-Boxer language,” under which private plans that cover elective abortion would qualify for the federal subsidy. However each enrollee in those plans that include abortion coverage would have to pay an “abortion surcharge” of at least one dollar per month. These funds would be used to pay for abortions.

This requirement applies to anyone who enrolls – or may have to enroll – in a subsidized plan that covers elective abortions. This will certainly include many people who would learn of the abortion surcharge only after enrolling, but who would also have no choice other than to pay the abortion surcharge, or see their entire health coverage lapse.

Authorities for pro-abortion mandates: The new law contains a bewildering array of provisions that grant authority to the Secretary of Health and Human Services and other federal entities to issue binding regulations on various matters.

Some of these provisions could be employed in the future as carte blanche for the HHS to issue pro-abortion mandates, requiring health plans to cover abortion and/or provide expanded access to abortion, unless there is clear language to prevent it. For example, under the Mikulski Amendment (Section 1001, pp. 20-21), the HHS could force every private health plan to cover elective abortions merely by placing abortion on a list of “preventive” services.

While the Senate bill does contain some anti-mandate provisions, NRLC’s analysis finds that these clauses are worded in such a way that they control only specific provisions of the bill (e.g., the reference to “essential health benefits” on page 2070), or are ambiguous in their scope.

Open door to future abortion funding in Indian health programs: The Senate-passed health bill revamps and reauthorizes all Indian health programs. In the House bill, these programs were permanently barred from providing elective abortions by the Stupak-Pitts Amendment. But in the Senate bill, no such prohibition exists, other than a mere policy-neutral clause (Section 10221, pp. 2175-2176) that “punts” the abortion policy, requiring that it be set annually on an appropriations bill.

The Senate omitted the necessary pro-life language even though a permanent Hyde Amendment had won approval by the Senate the last time that the Indian health reauthorization (S. 1200) was on the Senate floor in amendable form. (The House never acted on S. 1200.)

Missing abortion conscience language: The House-passed bill contained a codification of the “Hyde-Weldon” language (H.R. 3962, Section 259), which would prevent government actors from penalizing health care providers who refuse to participate in providing abortions.

However pro-abortion senators blocked its inclusion in the Senate bill. The so-called conscience protections in H.R. 3590 (e.g., on page 123) are exceedingly narrow.

Other issues:

Health care rationing: NRLC’s health care blog points out that “Section 3209 of the health care bill … effectively allows federal bureaucrats at the Centers for Medicaid and Medicare Services (CMS) of the federal Department of Health and Human Services (HHS) to bar senior citizens from adding their own money, if they choose, to the government contribution in order to get private-fee-for-service Medicare Advantage (MA) plans less likely to ration life-saving treatment.”

What this amounts to, according to NRLC, is that “doctors, hospitals, and other health care providers will be told by Washington just what diagnostic tests and medical care is considered to meet ‘quality’ and ‘efficiency’ standards – not only for federally funded health care programs like Medicare, but also for health care paid for by private citizens and their nongovernmental health insurance.”

“Treatment that a doctor and patient in consultation deem needed or advisable to save that patient’s life or preserve or improve the patient’s health but which the government decides is too costly – even if the patient is willing and able to pay for it – will run afoul of the imposed standards. In effect, there will be one uniform national standard of care, established by Washington bureaucrats and set with a view to limiting what private citizens are allowed to spend on saving their own lives.” Read more from the NRLC on health care rationing in H.R. 3590 here.

Setup for government-run health insurance: The National Review’s Veronique de Rugy posits a simple scenario of how the ObamaCare health insurance mandate could quickly dissolve into a single-payer system. Despite repeated denials, Obama declared support for single-payer in a 2003 speech to the AFL-CIO.

De Rugy points out that citizens, faced with a choice between expensive health insurance and a cheaper fine for failing to buy it, will “just get insurance once they need it, since people who are sick can no longer be denied health-care coverage.”

Health insurance companies would, in turn, quickly buckle under the weight of the health needs of new customers – revenue would continue to dry up when newly-recovered patients simply drop the insurance again. “In this worst-case scenario, the government will use the opportunity, or as Rahm Emanuel likes to say, won’t let the crisis go to waste, and will likely jump in and take over the insurance business,” she writes.

Health insurance mandate: At least 14 state attorneys general have filed suit against the federal government for a provision in the new law that mandates U.S. citizens to buy health insurance – or face a fine. Many believe the provision to be patently unconstitutional, as the Commerce clause in the U.S. Constitution has never been used to regulate “economic inactivity” by forcing people to buy a product. Some analysts say that if that premise is accepted, then Congress can theoretically force individuals to buy other products as well.

Widescale job loss effective immediately: Several news outlets are already reporting that the new taxes imposed by the health care reform law are forcing companies to slash health care plans or raise premiums on their workers.

According to the National Center for Policy Analysis, many S&P 500 businesses announced this week that health care legislation was forcing them to declare $4.5 billion in lost earnings.

Since taxes kicked in the first quarter, companies have had to adjust revenue earnings in order to pay for the health care bill’s new taxes that go into effect. AT&T reported a $1 billion tax hike, John Deere reported $150 million, and Caterpillar recorded $100 million.

The reason for this is that the government previously offered a tax refund of about $650 per retiree in order to keep Medicare Part D costs down. The new law, while it continues federal subsidies for Part D, does not allow companies to write off the cost as tax free anymore.

The marriage penalty: A Wall Street Journal column pointed out in January that both the House and Senate versions of the health care reform legislation would force married couples to pay “thousands of dollars more for the same health insurance coverage as unmarried people living together.” The penalty results from the fact that guidelines for qualifying for health insurance subsidies rely on federal poverty guidelines; therefore, married couples would be at a disadvantage for receiving subsidies due to their combined income.

In effect, the law helps make pre-marital co-habitation look financially more attractive than marriage.


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