[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
H.R. ___, A BILL TO AMEND THE PATIENT PROTECTION AND AFFORDABLE CARE
ACT TO MODIFY SPECIAL RULES RELATING TO COVERAGE OF ABORTION SERVICES
UNDER SUCH ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON HEALTH
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
FEBRUARY 9, 2011
__________
Serial No. 112-3
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
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COMMITTEE ON ENERGY AND COMMERCE
FRED UPTON, Michigan HENRY A. WAXMAN, California
Chairman Ranking Member
JOE BARTON, Texas JOHN D. DINGELL, Michigan
Chairman Emeritus EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida EDOLPHUS TOWNS, New York
ED WHITFIELD, Kentucky FRANK PALLONE, Jr., New Jersey
JOHN SHIMKUS, Illinois BOBBY L. RUSH, Illinois
JOSEPH R. PITTS, Pennsylvania ANNA G. ESHOO, California
MARY BONO MACK, California ELIOT L. ENGEL, New York
GREG WALDEN, Oregon GENE GREEN, Texas
LEE TERRY, Nebraska DIANA DeGETTE, Colorado
MIKE ROGERS, Michigan LOIS CAPPS, California
SUE WILKINS MYRICK, North Carolina MICHAEL F. DOYLE, Pennsylvania
Vice Chair JANICE D. SCHAKOWSKY, Illinois
JOHN SULLIVAN, Oklahoma CHARLES A. GONZALEZ, Texas
TIM MURPHY, Pennsylvania JAY INSLEE, Washington
MICHAEL C. BURGESS, Texas TAMMY BALDWIN, Wisconsin
MARSHA BLACKBURN, Tennessee MIKE ROSS, Arkansas
BRIAN P. BILBRAY, California ANTHONY D. WEINER, New York
CHARLES F. BASS, New Hampshire JIM MATHESON, Utah
PHIL GINGREY, Georgia G.K. BUTTERFIELD, North Carolina
STEVE SCALISE, Louisiana JOHN BARROW, Georgia
ROBERT E. LATTA, Ohio DORIS O. MATSUI, California
CATHY McMORRIS RODGERS, Washington
GREGG HARPER, Mississippi
LEONARD LANCE, New Jersey
BILL CASSIDY, Louisiana
BRETT GUTHRIE, Kentucky
PETE OLSON, Texas
DAVID P. McKINLEY, West Virginia
CORY GARDNER, Colorado
MIKE POMPEO, Kansas
ADAM KINZINGER, Illinois
H. MORGAN GRIFFITH, Virginia
(ii)
Subcommittee on Health
JOSEPH R. PITTS, Pennsylvania
Chairman
MICHAEL C. BURGESS, Texas FRANK PALLONE, Jr., New Jersey
Vice Chairman Ranking Member
ED WHITFIELD, Kentucky JOHN D. DINGELL, Michigan
JOHN SHIMKUS, Illinois EDOLPHUS TOWNS, New York
MIKE ROGERS, Michigan ELIOT L. ENGEL, New York
SUE WILKINS MYRICK, North Carolina LOIS CAPPS, California
TIM MURPHY, Pennsylvania JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee CHARLES A. GONZALEZ, Texas
PHIL GINGREY, Georgia TAMMY BALDWIN, Wisconsin
ROBERT E. LATTA, Ohio MIKE ROSS, Arkansas
CATHY McMORRIS RODGERS, Washington ANTHONY D. WEINER, New York
LEONARD LANCE, New Jersey HENRY A. WAXMAN, California
BILL CASSIDY, Louisiana
BRETT GUTHRIE, Kentucky
JOE BARTON, Texas
FRED UPTON, Michigan (ex officio)
C O N T E N T S
----------
Page
Hon. Joseph R. Pitts, a Representative in Congress from the
Commonwealth of Pennsylvania, opening statement................ 1
Prepared statement........................................... 3
Hon. Lois Capps, a Representative in Congress from the State of
California, prepared statement................................. 5
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, prepared statement................................... 7
Hon. Henry A. Waxman, a Representative in Congress from the State
of California, opening statement............................... 9
Hon. Joe Barton, a Representative in Congress from the State of
Texas, prepared statement...................................... 116
Hon. Marsha Blackburn, a Representative in Congress from the
State of Tennessee, prepared statement......................... 117
Hon. John D. Dingell, a Representative in Congress from the State
of Michigan, prepared statement................................ 118
Hon. Edolphus Towns, a Representative in Congress from the State
of New York, prepared statement................................ 119
Witnesses
Helen M. Alvare, Associate Professor of Law, George Mason
University School of Law....................................... 11
Prepared statement........................................... 13
Sara Rosenbaum, J.D., Hirsh Professor and Chair, Department of
Health Policy, School of Public Health and Health Services, The
George Washington University................................... 24
Prepared statement........................................... 26
Douglas Johnson, Legislative Director, National Right to Life
Committee...................................................... 33
Prepared statement........................................... 35
Submitted Material
Letter of February 8, 2011, from National Health Law Program to
Members of the Subcommittee, submitted by Ms. Schakowsky....... 120
Statement of NARAL, Pro-Choice America Foundation, submitted by
Mrs. Capps..................................................... 123
Letter of February 9, 2011, from National Asian Pacific American
American Women's Forum to Members of the Subcommittee,
submitted by Mr. Engel......................................... 130
.................................................................
H.R. ------, A BILL TO AMEND THE PATIENT PROTECTION AND AFFORDABLE CARE
ACT TO MODIFY SPECIAL RULES RELATING TO COVERAGE OF ABORTION SERVICES
UNDER SUCH ACT
----------
WEDNESDAY, FEBRUARY 9, 2011
House of Representatives,
Subcommittee on Health,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 1:06 p.m., in
room 2322 of the Rayburn House Office Building, Hon. Joseph R.
Pitts (chairman of the subcommittee) presiding.
Members present: Representatives Pitts, Burgess, Shimkus,
Myrick, Murphy, Blackburn, Gingrey, Latta, McMorris Rodgers,
Lance, Cassidy, Guthrie, Upton, Pallone, Dingell, Towns, Engel,
Capps, Schakowsky, Gonzalez, Baldwin, Weiner, and Waxman (ex
officio).
Also present: Representative DeGette.
Staff present: Gary Andres, Staff Director; Jim Barnette,
General Counsel; Michael Beckerman, Deputy Staff Director;
Alison Busbee, Legislative Clerk; Howard Cohen, Chief Health
Counsel; Marty Dannenfelser, Senior Advisor, Health Policy &
Coalitions; Julie Goon, Health Policy Advisor; Peter Kielty,
Senior Legislative Analyst; Ryan Long, Chief Counsel, Health;
Jeff Mortier, Professional Staff Member; Katie Novaria,
Legislative Clerk; Heidi Stirrup; Lyn Walker, Coordinator,
Admin/Human Resources; Karen Nelson, Deputy Democratic Staff
Director for Health; Ruth Katz, Chief Public Health Counsel;
Steve Cha, MD, Professional Staff; Phil Barnette, Democratic
Staff Director; Karen Lightfoot, Communications Director; Alli
Corr, Special Assistant for Health; and Mitch Smiley, Associate
Clerk.
Mr. Pitts. The subcommittee will come to order. The chair
will recognize himself for an opening statement.
OPENING STATEMENT OF HON. JOSEPH PITTS, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA
Mr. Pitts. First, I would like to thank my colleagues on
both sides of the aisle for being here today for what promises
to be a very interesting hearing. The new Republican Majority
has stated its commitment to an open and fair legislative
process, and that will be reflected in this subcommittee. I ask
all of my colleagues and our audience to treat each other and
our witnesses with civility and respect. This hearing is an
important part of the legislative process and we will conduct
it accordingly. I would also like to acknowledge my friend, the
Ranking Member, Mr. Pallone of New Jersey. Pennsylvania and New
Jersey are as close together as the Phillies and the Yankees
are far apart. This Phillies fan intends to work as closely as
possible with Mr. Pallone, the Yankees notwithstanding.
I believe there are a great many things we can work on
together for the good of this country, and I look forward to
cooperating with you this year. When we disagree I hope we will
always do so with dignity and respect, treating those who may
disagree with dignity and respect. And I promise to do that on
my part.
Pursuant to committee rules, I intend to make an opening
statement of not more than 5 minutes and will then recognize
the ranking member, Mr. Pallone, for an opening statement. The
chairman of the Committee, Mr. Upton, will then have a chance
to give an opening statement followed finally by the ranking
member of the Committee, Mr. Waxman.
Today we will hear testimony from one panel of three
witnesses, two invited by the majority, and one invited by the
minority. All sides of the debate will be heard today and every
member will have a chance to question each of the witnesses.
The testimony we will hear today regards the prohibition of
taxpayer funding of abortion and abortion coverage. For decades
there has been a clear prohibition against the use of federal
dollars to pay for abortion. The Patient Protection and
Affordable Care Act opened the door, for the first time in
decades, to government financing of abortion. My colleagues
will recall that the House acted affirmatively to fix this in a
strongly bipartisan vote of 240 to 194 to 1. We are all aware
that abortion itself can be a controversial subject. What is
far less controversial is the question of whether the taxpayers
should be financing it. The so-called Stupak-Pitts amendment
last session affirmed the view of 60 to 70 percent of Americans
that government taxpayer money should not be involved in
abortion. Unfortunately, the Senate did not see fit to include
the House prohibition in its version of the bill and it was the
Senate Bill that became law.
We need to be clear about some things as we start. The
government does not finance abortions and has not done so for
decades thanks to the Hyde amendment. Moreover, the government
has never told any medical professional or medical institution
that it must perform abortions. This bill seeks to clarify
these policies and give them permanence.
The President has on at least two occasions affirmed what
we are doing her today. In his 2009 speech to a joint session
of Congress, the President said, and I quote: ``Under our plan
no federal dollars will be used to fund abortions and federal
conscience laws will remain in place.'' A year later in his
Executive order, the President clearly endorsed the principle
of no government funds going to abortion and again, clearly
endorsed the principle of not forcing health care professions
to act against the dictates of conscience. But an Executive
order is not law. It can be rescinded at any time by this or
any future president. It can be overturned by a judge or simply
ignored.
If we wish to respect the views of those who do not want
their money used to finance abortion, if we wish to follow the
wishes of 60 to 70 percent of Americans who believe the
government should not pay for the procedure, then Congress
should send this bill to President in short order. The
President is clearly on record supporting the principles in the
bill and when it gets to his desk, I hope he will sign it.
I think I have how much time--40 seconds. I will yield the
remainder of my time to gentleman from Ohio, Mr. Latta.
[The prepared statement of Mr. Pitts follows:]
Prepared Statement of Hon. Joseph R. Pitts
The Chair will recognize himself for an opening
statement.I'd like to thank my colleagues-on both sides of the
aisle-for being here today for what promises to be a very
interesting hearing.
The new Republican Majority has stated its commitment to an
open and fair legislative process, and that will be reflected
in this subcommittee. I ask all of my colleagues and our
audience to treat each other and our witnesses with civility
and respect. This hearing is an important part of the
legislative process and we will conduct it accordingly.
I'd also like to acknowledge my friend, the Ranking Member,
Mr. Pallone of New Jersey. Pennsylvania and New Jersey are as
close together as the Phillies and the Yankees are far apart.
This Phillies fan intends to work as closely as possible with
Mr. Pallone, the Yankees notwithstanding.
I believe there are a great many things we can work on
together for the good of this country. I look forward to
cooperating with you this year.
When we disagree, I hope we will always do so without being
disagreeable. I promise to do my part.
Pursuant to committee rules, I intend to make an opening
statement-of not more than five minutes-and will then recognize
the Ranking Member, Mr. Pallone, for an opening statement. The
Chairman of the Committee, Mr. Upton, will then have a chance
to give an opening statement-followed, finally, by the Ranking
Member of the Committee, Mr. Waxman.
Today, we will hear testimony from one panel of three
witnesses-two invited by the majority and one invited by the
minority. All sides of the debate will be heard today and every
Member will have a chance to question each of the witnesses.
The testimony we will hear today regards the prohibition of
taxpayer funding of abortion and abortion coverage. For
decades, there has been a clear prohibition against the use of
federal dollars to pay for abortion. The Patient Protection and
Affordable Care Act opened the door, for the first time in
decades, to government financing of abortion.
My colleagues will recall that the House acted
affirmatively to fix this, in a strongly bipartisan vote of 240
to 194.
We are all aware that abortion itself can be a
controversial subject. What is far less controversial is the
question of whether the taxpayers should be financing it. The
Stupak-Pitts Amendment affirmed the view of 60 to 70 percent of
Americans that government taxpayer money should not be involved
in abortion.
Unfortunately, the Senate did not see fit to include the
House's prohibition in its version of the bill, and it was the
Senate bill that became law.
We need to be clear about some things as we start. The
government does not finance abortions and has not done so for
decades - thanks to the Hyde amendment. Moreover, the
government has never told any medical professional or medical
institution that it must perform abortions.
This bill seeks to clarify these policies and give them
permanence.
The President has on at least two occasions affirmed what
we are doing here today. In his 2009 speech to a joint session
of Congress, the president said, and I quote: ``under our plan,
no federal dollars will be used to fund abortions, and federal
conscience laws will remain in place.''
A year later, in his Executive order, the president clearly
endorsed the principle of no government funds going to abortion
and-again-clearly endorsed the principle of not forcing
healthcare professionals to act against the dictates of
conscience.
But an executive order is not law. It can be rescinded at
any time by this or any future president. It can be overturned
by a judge, or simply ignored.
If we wish to respect the views of those who don't want
their money used to finance abortion, if we wish to follow the
wishes of the 60 to 70 percent of Americans who believe the
government should not pay for the procedure-then Congress
should send this bill to the President in short order.
The President is clearly on record supporting the
principles in this bill. When it gets to his desk, I believe he
will sign it.
The gentleman from New Jersey, the Ranking Member, Mr.
Pallone, is now recognized for five minutes for an opening
statement.
The Chairman of the full committee, Mr. Upton, is now
recognized for an opening statement.
The Ranking Member, Mr. Waxman, is now recognized for an
opening statement.
Mr. Latta. I thank you, chairman, for yielding and for
holding this very important hearing on the Protect Life Act.
And as the chairman designated in his opening remark stating
that the majority of Americans are opposed to the Federal
Government funding abortion. And the question, of course, came
up during the bill, the ``Obamacare'' legislation as to the use
of federal taxpayer dollars to allow that coverage and also for
the Stupak-Pitts amendment that was first supported, and then
unfortunately we did not have, and then, of course, the
Executive order.
So I would just like to say, Mr. Chairman, that we have to
be vigilant in our defense of human life and work past the
Protect Life Act so that the government funding is not used to
pay for abortions through the Federal Government. The Anti-life
policies cannot be tolerated and it is because it is absolutely
morally wrong and opposed by again as I said the majority of
tax payers. The passage of the Protect Life is the first step
towards putting an end once and for all for all taxpayer
funding of abortion as well as fixing a deeply flawed health
care bill. And I look forward to the hearing and when the bill
becomes law. I yield back.
Mr. Pitts. The gentleman's time has expired. The gentleman
from New Jersey, the Ranking Member Mr. Pallone is now
recognized for 5 minutes for an opening statement.
Mr. Pallone. Thank you, Chairman Pitts. I look forward to
working alongside you as well and the subcommittee and it is my
hope that we can meet some common ground during this Congress.
And I appreciate the comments you made in that regard. I just
wanted to say briefly I remember the time when you--I told you
I was going to the University of Pennsylvania farm in your
district and I had a grand old time there with the pigs and the
cows and all the other farm animals. And you still represent a
good part of Lancaster County----
Mr. Pitts. All of Lancaster.
Mr. Pallone [continuing]. Which is a wonderful, peaceful,
quiet place--the Amish, and it is just a nice place, so let us
work together. I definitely think we can.
Regardless of any one person's views, though, on the topic
today, I want to stress the current law is clear. No government
funding can be used for abortion under the Affordable Care Act
except in cases of rape, incest, and to save the life of the
woman. And today is not about public funding in my opinion.
Today is an attempt by my colleagues on the other side of the
aisle to reopen the contentious issue of abortion and dismantle
the landmark healthcare law. The bill before us in my opinion
is too extreme. It is a massive overreach from what was
delicately negotiated during health reform and it extensively
restricts women's access to reproductive health services and
life saving care. Its language does more than prevent federal
funds from going to abortions. It is a step towards eliminating
a choice that our Supreme Court has deemed legal and remains
legal to this day. Religious and personal views should not put
women's lives at risk.
Under current law, health care providers are obligated to
provide emergency services, otherwise stabilize a patient, and
make available the transfer to another facility should they
take issue with performing abortion procedures. This bill
eliminates these minimum moral obligations even to save a
woman's life. The bill in my opinion is not pro-life. It is
anti-woman. The same members of this committee who voted to
repeal the Affordable Care Act last month charged that it will
interfere with the doctor/patient relationship. And I can't
think of a policy that is more intrusive of a doctor/patient
relationship than the one before us today.
I strongly believe women need and are entitled to safe,
affordable health care options and this bill only serves to
create health and financial challenges that may be impossible
to overcome. Now I--whatever time I have left, Mr. Chairman, I
would like to yield a minute each to Ms. Capps, Ms. Baldwin,
and Ms. Schakowsky in that order. We will see if we can
accommodate all three in my time and so start with Ms. Capps.
Mrs. Capps. Thank you, Mr. Pallone. As you just stated, the
notion that the Affordable Care Act allows for funding of
elective abortion is false. So I must ask with national
unemployment at 9 percent and the potential that we have right
here in this subcommittee to create and strengthen a critical
work--health care work force of the jobs there, why are we here
debating this extreme legislation that would instead take
reproductive rights away from women. Mr. Chairman, the debate
today isn't about tax dollars or provider conscience. Instead
it is about chipping away at the legal rights of women,
including the right to receive life saving treatment or
referrals from a hospital emergency room. Not even the Stupak
Amendment we fought over last year tried to change this.
It is disappointing that this committee, one that is so
important to job creation and the economy is wasting our time
on this extreme legislation. And it is downright appalling that
we are spending our first hours as a subcommittee in this
Congress trying to restrict a woman's right. Now, instead--
rights--instead of rehashing the culture wars we should be
using our time in this subcommittee doing what the American
people really want us to do, strengthen the economy and create
jobs. And I yield to my colleague, Ms. Baldwin.
[The prepared statement of Mrs. Capps follows:]
Prepared Statement of Hon. Lois Capps
Thank you, Mr. Chairman.I am troubled that we are here,
rehashing the phony debate that the Affordable Care Act will
become some sort of conduit for abortion payments.
This is false.
The non-partisan ``fact-check.org'' website makes it clear:
the new law does not provide direct federal funding for
abortion, except in cases of rape or incest, or to save the
life of the pregnant woman.
In fact, the new health care reform law goes further.
It states specifically that federal funds are not to be
used for coverage of any other kinds of abortions.
Add to this the existing Hyde Amendment, which has
continuously been in law since the 1970s.
And the President's Executive Order specifically
reaffirming that the provisions in the Hyde Amendment carry
over to the new health care law.
So, I must ask, with national unemployment at 9 percent,
and the potential that we have-right here in this committee-to
create and strengthen healthcare workforce jobs, why are we
here debating this extreme legislation that would take
reproductive rights away from women, again?
Mr. Chairman, the debate today isn't about tax dollars,
instead it is about chipping away at the legal rights of women,
one extreme provisions at a time.
Perhaps Henry Hyde's own words describe the intent of those
who support this extreme legislation best:
He proclaimed: ``I would certainly like to prevent, if I
could legally, anybody having an abortion, a rich woman, a
middle class woman, or a poor woman.''
A careful read of the text shows that this bill does not
just ``codify Hyde.''
Instead it goes far beyond:
Original text of the bill-language signed on to by 173
anti-choice members of Congress would have limited rape and
incest provisions to levels never before seen-``no means no''
would not have been enough.
After public outcry, this language has been changed, but
another, extreme, life-threatening provision has been added.
Specifically, the bill includes language to exempt
hospitals from EMTALA requirements to treat or provide
referrals to women in need of life-saving emergency abortion
care, even if they will die without it.
Not even the Stupak amendment we fought over last year
tried to change this.
This bill's name is misleading-it does not protect life-
instead it puts women and their families in danger.
It is not a so-called protection of tax dollars-it is a
not-so-veiled attempt to roll back the rights of all women by
infringing on the way they spend their own money and the
decisions they make for themselves.
It is disappointing that this Committee, one that is so
important to job creation and the economy is wasting our time
here today.
And it is downright appalling that we are spending our
first hours as a subcommittee on legislation that is all about
restricting women's rights.
Instead of rehashing the culture wars, we should be using
our time in this subcommittee to do what the American people
really want-strengthen the economy and create jobs.
I yield back.
Ms. Baldwin. Thank you. I share your concern that the very
first hearing that we are having in this Congress isn't about
creating jobs or bolstering our economy or helping families get
health care coverage. Instead the majority has demonstrated
that its top priority is attacking women's rights. This
legislation takes away a woman's ability to make their own
important life decisions about their reproductive health. And
for--and this bill gives the government and insurance companies
new power to make these decisions for them. And for that reason
I think this legislation is extreme. This legislation is an
unprecedented display of lack of respect for American women and
for our safety. The bill would cut off millions of women from
the private care that they have today. It would deny individual
decision making by giving insurance companies more power and it
would allow public hospitals to deny life saving care and
dictate what women can do with their own health care dollars.
With that I yield time to Jan Schakowsky.
Ms. Schakowsky. I would like to use that time to ask the
chairman if I could offer for the record from the Catholic
Health Association a letter which takes exception with some of
the provisions--one of the provisions of the bill and also from
the National Partnership for Women and Families, and the
National Health Law Program.
Mr. Pitts. Without objection it will be added to the
record.
[The information appears at the conclusion of the hearing.]
Mr. Pitts. All right, the gentleman's time is expired.
Thanks. Thank you to those who made statements and now the
chair would recognize the chairman of the Full Committee, Mr.
Upton, for 5 minutes or such a time as he may consume.
Mr. Upton. Thank you, Mr. Chairman. I intend to use 1
minute and then yield 2 minutes to Dr. Burgess, a minute to the
vice chair Sue Myrick, and a minute to Cathy McMorris Rodgers.
So in my minute I want to again thank you, Mr. Chairman. The
discussion draft before us closely tracks the Stupak-Pitts
amendment that the house adopted by a strong bipartisan
majority in the last Congress. This includes the Hyde amendment
language that has continuously been adopted by Congress since
1993. Unfortunately the massive health care plan that was
ultimately enacted by Congress contains numerous loop holes
that allow federal subsidies to be used to purchase plans that
pay for abortions.
This bipartisan legislation today proposed by Chairman
Pitts amends the health bill to clearly and statutorily prevent
federal funding for abortion or abortion coverage through
government exchanges, community health centers, or any other
program funded or created by the new law. Additionally the bill
protects the right of the conscience for health care
professionals and assures that private insurance companies are
not forced to cover abortion. I ask unanimous consent that my
full statement be part of the record. I now yield to Dr.
Burgess.
[The prepared statement of Mr. Upton follows:]
Prepared Statement of Hon. Fred Upton
Thank you Mr. Chairman, the Discussion Draft before us
closely tracks the Stupak-Pitts amendment that the House
adopted by a strong bipartisan majority during the 111th
Congress. This includes the Hyde amendment language that has
continuously been adopted by Congress since 1993.
Unfortunately, the massive health care plan that was
ultimately enacted by Congress contains numerous loopholes that
allow federal subsidies to be used to purchase plans that pay
for abortions. This legislation proposed by Chairman Pitts
amends the health bill to clearly prevent federal funding for
abortion or abortion coverage through government exchanges,
community health centers, or any other program funded or
created by the new law. Additionally, this bill protects the
right of conscience for health care professionals and ensures
that private insurance companies are not forced to cover
abortion.
Those of us who support the Hyde amendment are encouraged
by the fact that its enactment has contributed to a reduction
in the number of abortions and saved the lives of thousands of
unborn children. A clear majority of Americans share our view
that taxpayers' dollars should not be used to pay for elective
abortions. President Obama, among others, says that he wants to
make abortion ``rare''. Let's find common ground on this
legislation by acknowledging that abortion is not health care
and conscientiously opposed taxpayers should not be forced to
subsidize abortion.
Mr. Pitts. Without objection so ordered.
Mr. Burgess. I thank the gentleman for yielding and just a
couple of observations as we take up this legislation today.
The Protect Life Act is not applying anything new. It is not
applying restrictions. It merely extends the status quo, that
taxpayer dollars will not be used to subsidize elective
abortions, and that is it. Similar language has been--is found
in the Hyde amendment, that was passed in 1976, and has been
reauthorized in each Congress throughout the appropriations
process. H.R. 358 is only preserving language that Congress and
doctors and patients have relied upon for decades. It does not
change or alter the practice of medicine or the responsibility
of physicians in any way. Past and present the Congress has
said we will not pay for elective abortions. That does not
change in this legislation.
Now, in my prior life I was a doctor. I am a doctor. I am
an OB/GYN and I do value the sanctity of human life. I do
believe that it is a miracle that it can even occur and for us
to interfere in a harmful way is something that as an OB/GYN I
think it wrong. But I understand that some people do feel
differently. I think it is important to codify with this
language that we are responsible for the judicious use of
taxpayer dollars. Now as a doctor, I am sworn to aid those in
need and I reject when people say this legislation would
prevent doctors from providing care in times of need. Integrity
and the relationship with patients upholding the oath that we
all take as physicians are fundamentals. Arguments that people
will be harmed, let alone left to die at the door, are just
simply not true. There is a suspension of belief required to
think that elective abortions versus medically necessary
procedures are--can in fact be comingled. I see my time is at
an end. I will yield to the----
Mr. Upton. Vice Chairman.
Mr. Burgess [continuing]. Vice Chairman.
Mr. Upton. Sue Myrick.
Mrs. Myrick. Thank you, Mr. Chairman. I am pleased to speak
on behalf of this bill and I believe it represents a necessary
improvement to the Patient Protection and Affordable Care Act
that was signed into law last year. Americans broadly agree
that taxpayer money should not subsidize elective abortions.
This bill doesn't affect the legality of abortion services for
American women. It is not a sea change from current policy. In
fact, it merely carries forth what is already true for federal
health programs such as the Federal Employee Health Benefit
Program, Medicaid, SCHIP, and the Indian Health Service. To my
knowledge there is no evidence that prohibition of coverage for
elective abortions in these programs has negatively impacted
women's health. I look forward to the testimony from our
witnesses and I yield back.
Mr. Upton. And the chair recognizes Cathy McMorris Rodgers.
Ms. McMorris Rodgers. Thank you, Mr. Chairman. I, too, want
to speak in support of the legislation. If we are committed to
health care reform for everyone including women and children
then health care protections for children should start at the
moment their lives begin. We agree to allow children to stay on
health care plans until age 26. We agree to provide our
children's coverage for pre-existing conditions, and eliminate
annual and lifetime caps, but what does it all mean if we are
not going to protect them at the moment their lives begin? Two
thirds of women polled during the health care debate
representing all parties, races, marital statuses objected to
the Federal Government paying for abortions. I would urge all
of my colleagues to join in supporting the Protect Life Act and
I yield back the balance of my time.
Mr. Pitts. The chair thanks the members for their
statements. The ranking member of the Full Committee, Mr.
Waxman is now recognized for 5 minutes for an opening
statement.
OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Waxman. Thank you very much, Mr. Chairman. I think we
have to put this legislation in the context of this bill and
other bills that are also moving in other committees on this
very subject of abortion. Let there be no doubt about it. The
objective is not to say the taxpayer's funds cannot be used for
paying for a termination of a pregnancy. The objective of all
this legislation is to say no woman will be able to buy
insurance in this country that will cover a necessary medical
procedure involving the termination of a pregnancy. Even though
it is legal and it is a medical decision now will be taken over
by the Congress to be made for the women involved.
The Affordable Care Act had a very sensitive, delicate
balance and it was drafted in the Senate by Senator Nelson,
whose pro-life record speaks for itself. That law prohibits the
use of federal funds for abortion, keeps state and federal
abortion related laws in place, it would not allow government
tax credits to be used to pay for abortion services, but this
bill goes beyond that. It would provide that there would in
reality be no insurance policy for anybody buying in an
exchange for health insurance to get a policy that would cover
the termination of a pregnancy, even when it is medically
necessary. This is an assault on women's reproductive health
and their constitutional rights to choose when to bear
children. Mr. Chairman, I would like to ask unanimous consent
that I be able to yield 2 minutes of my time to Ms. DeGette,
who is not a member of this subcommittee, but a member of the
Full Committee.
Mr. Pitts. Without objection.
Ms. DeGette. Thank you very much, Mr. Chairman. There are
some days in Congress I feel like I am in Alice in Wonderland
where everything is upside down and today is certainly one of
those days. The extreme legislation that we are considering
today is not just simply saying that there shall be no public
funds for abortion. That is already the law. That is the Hyde
amendment. I disagree with the Hyde amendment, but in the
annual HHS Appropriations Bill every year it says no federal
funds shall be used for abortion. This was also protected in
the health care legislation last year.
Let us be clear about what this extreme bill does. What
this bill says is first of all it does codify Hyde, which is
far beyond current law. But secondly, it says that anybody who
purchases an insurance policy--an employer, or any American,
male or female who purchases an insurance policy that covers
all legal reproductive services now cannot have any kind of tax
relief. So it is not about direct federal funding of abortion.
We don't have that. We don't have that. What it is about is
saying these indirect tax credits now will be interpreted as
federal funding. That is the most vast restriction of a woman's
right to choose that any of us will ever see in our lifetimes
and what it would lead to if it became law is that no
individual in this country or business in this country could
purchase an insurance policy that covered the full range of
legal reproductive services unless they suffered essentially a
tax increase.
Mr. Waxman. Thank you, Ms. DeGette.
Ms. DeGette. It is wrong. It is intrusive. And we just need
to call it what it is. Thank you, Mr. Chairman.
Mr. Waxman. I yield the rest of my time to Ms. Schakowsky.
Ms. Schakowsky. Thank you, Mr. Waxman. Republicans ran on
the promise of smaller government, but in fact it looks as if
they want to reduce the size of government to make it just
small enough so that it can fit in our bedrooms. This extreme
legislation is an unconscionable intrusion into the important,
and often wrenching, and often devastating life decisions of
American women and their families. Not a single American
woman's rights are safe under this extreme bill. Already the
Hyde amendment unfortunately makes sure that poor women and
federal employees and military women can't get the full
benefits under the federal plans. But what this says is that
women with their own money will be restricted from purchasing
full reproductive services, including the right to terminate a
pregnancy. It does raise taxes on businesses and individuals.
One hundred sixty-three Republicans wanted to change the
definition of rape. I think that is out of that bill now saying
it can only be forcible. You have to prove that you were beat
up I guess. And this can deny emergency care to save a woman's
life. Let us do what the American people want. Let us create
jobs. Let us get to the business of the economy and start
limiting the rights of women in America.
Mr. Pitts. The chair thanks the members for their
statements and we will now turn to our witnesses. Each of you
has prepared statements that will be a part of the record, but
I ask that you summarize your prepared statements in 5 minutes.
Our first witness is an Associate Professor of Law at
George Mason University School of Law, Helen Alvare. Professor
Alvare received her law degree at Cornell University in 1984
and a Master's Degree in Systematic Theology from the Catholic
University of America in 1989. She has practiced law with the
Philadelphia firm of Stradley Ronan Stevens & Young
specializing in commercial litigation and free exercise of
religion matters. She also worked for the National Conference
of Catholic Bishops drafting amicus briefs on abortion and a
variety of U.S. Supreme Court cases.
Next, we will hear from Professor Sara Rosenbaum, a
Department of Health Policy Chair from George Washington
University. Professor Rosenbaum received her Jurist Doctorate
from Boston University Law School and has focused her career on
health care access for low income, minority, and medically
underserved populations. She also worked for the White House
Domestic Policy Council during the Clinton Administration where
she directed the drafting of the Health Security Act. While
serving on numerous national organizational boards, she has
also co-authored a help law textbook ``Law and the American
Health Care System''.
Finally, we will hear from Douglas Johnson, Federal
Legislative Director from the National Right to Life Committee,
who will offer his testimony. Mr. Johnson has served as the
Legislative Director of the NRLC since 1981. Over the past
several years, Mr. Johnson has written extensively on the
abortion related issues raised by various bills to restructure
the health care system including the Patient Protect and
Affordable Care Act. He has also published extensively on other
right to life issues, including partial birth abortion, fetal
homicide, and human cloning, as well as on issues relating to
restrictions on political free speech and critiques of how the
news media covers some of these issues. So at this point I will
recognize Ms. Alvare.
STATEMENTS OF HELEN M. ALVARE, ASSOCIATE PROFESSOR OF LAW,
GEORGE MASON UNIVERSITY SCHOOL OF LAW; SARA ROSENBAUM, J.D.,
HIRSH PROFESSOR AND CHAIR, DEPARTMENT OF HEALTH POLICY, SCHOOL
OF PUBLIC HEALTH AND HEALTH SERVICES, THE GEORGE WASHINGTON
UNIVERSITY; AND DOUGLAS JOHNSON, LEGISLATIVE DIRECTOR, NATIONAL
RIGHT TO LIFE COMMITTEE
STATEMENT OF HELEN M. ALVARE
Ms. Alvare. Thank you, Mr. Chairman. Good afternoon and
thank you for this opportunity. My testimony today will address
conscience protection in health care under the Protect Life
Act. Initially I want to say that there is no need for us to
view the matter of conscience protection as a zero-sum game
between conscience-driven health care providers and the
patients they serve particularly the most vulnerable. Opponents
of conscience protection are portraying the situation this way
but the opposite is true. It is by protecting conscience and
elevating respect for life in health care that we are likely as
a Nation to serve and reflect the values of most Americans
particularly the vulnerable.
This can be understood from several angles. First, less
privileged women are less likely to support abortion or
abortion funding then their more privileged sisters or than
men. They are also less likely to abort their nonmarital
pregnancies than more privileged women. Second, abortion has
not mainstreamed into American health care even 38 years after
Roe. It remains, in the words of the New York Times ``at the
margins of medical practice''. This, I believe, is why
opponents of conscience want to force the government and
conscience-driven providers to give them what the market has
steadfastly refused--dispersed sources for abortions in
hygienic medical settings.
Instead, today we have this: 87 percent of counties with no
abortion provider, a small percentage of doctors willing to
perform it according to the Guttmacher Institute because of
stigma issues. Ninety-five percent of abortions delivered in
clinics and not hospitals or doctor's offices. Just recently
even an affiliate of Planned Parenthood, our largest abortion
provider quit the national organization over its insistence
they provide abortions. Finally, there are the regular reports
of unhygienic or even horrific conditions at abortion clinics.
In recent weeks we can't have missed the reports about
Planned Parenthood employees offering to cooperate with someone
posing as a sex trafficking ring director of minor girls as
young as 13. Planned Parenthood has acknowledged it needs
nationwide retraining. Third, there's an emerging scientific
and cultural willingness to conclude that abortion is killing
and not health care for women. Not only is this the word used
by a majority of our Supreme Court, but abortion providers and
supporters of abortion rights are using it regularly. More
broadly, and I think this is new with respect to women's
flourishing, there is emerging a critical mass of evidence from
respected scholars and peer review journals that more easily
available abortion is associated with women's what they are
calling ``immiseration'', that is, making them miserable not
their flourishing. Associate, that is, with creating a market
for sex and mating that demands more uncommitted sexual
encounters contrary to women's empirically demonstrated
preferences thereby producing more sexually transmitted
diseases, more nonmarital pregnancies, more single parenting,
more abortions, more poverty.
Women of color, immigrants, and poor women are suffering
the most from this. If opponents of conscience protection want
to encourage high quality health care for women, they couldn't
do better than ally themselves with supporters of conscience.
These are the kinds of providers and institutions with a thick
sense of vocation and a record particularly of assisting
vulnerable women. These are not the providers we want to drive
out of health care.
The Protect Life Act will assure that conscience-driven
providers remain in this marketplace. It adds protections for
them which reinstate the status quo but were not present in the
Affordable Health Care Act. It adds protections regarding
training for abortion and protects health care entities and
providers against discrimination by governments and federally
funded institutions--an important oversight. It explicitly
protects existing state conscience protections from federal
preemption. The Affordable Care Act also lacks sufficient
enforcement mechanisms in connection with the limited
conscience protections it did offer.
In conclusion, the freedom of religion and moral conscience
is enshrined in the universal declaration of human rights. Our
own President Obama has urged ``secularists are wrong when they
ask believers to leave religion at the door before entering the
public square.'' Our founders understood that human beings
require respect for conscience as a condition for living in
freedom and integrity. Our founders knew and we know and we can
ever measure it today, the relationship between the flourishing
of religion and moral conscience and a good society. When it
comes to abortion, conscience protection in some form has been
the common ground between all sides of the debate even before
Roe. Even when abortion was legal before Roe, conscience
protections were attached to it. Our Supreme Court called them
in Doe v. Bolton ``appropriate''. So it is contrary today to
common sense those insisting that health care providers check
their consciences at the door. This should be recognized for
the marginal and dangerous opinion that it is. Thank you.
[The prepared statement of Ms. Alvare follows:]
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Mr. Pitts. Thank you.
Please pardon the interruption to the witnesses, but a vote
has been called on the floor. There are two votes, so the
committee will stand in recess for votes and reconvene 15
minutes after the last vote to resume the hearing. Thank you.
Committee's in recess.
[Recess.]
Mr. Pitts. The meeting will come to order. Thank you for
your patience to the witnesses as the members were called to
the floor for a vote. We have heard from Professor Alvare. Next
we will hear from Professor Sarah Rosenbaum. Welcome.
STATEMENT OF SARA ROSENBAUM
Ms. Rosenbaum. Thank you very much Mr. Chairman and members
of the Committee for providing me with the opportunity to speak
before you today. The Hyde amendment and existing conscience
protections both were expressly incorporated into the
Affordable Care Act through section 1303 in order to ensure the
preservation of conscience and to protect against public
funding for abortions. The Protect Life Act would dramatically
expand the reach of abortion prohibitions beyond the furthest
limits of the Hyde amendment by incorporating its prohibitions
direction into the Internal Revenue Code. The bill would
achieve this result by amending the ACA to bar the use of
premium tax credits, even though these credits must in many
cases be repaid from personal income, if earnings increase for
privately purchased health insurance products, if those
products cover medically indicated abortions for which federal
funding is barred, and even if the abortion coverage is paid
for out of private income. This would be an enormous break from
the existing provisions of law which allow tax credits to be
used for products even if those products cover medically
indicated abortions so long as that component of the product is
purchased with private funding.
This change would produce three results. For the first
time, the IRS would be required to assume major policy making
and enforcement responsibility where federal abortion policy is
concerned. Among its responsibilities the agency would be
obligated to develop implementing policies that define critical
terms. The IRS would have to define abortion in order to
separate allowable claims such as claims related to spontaneous
abortions and miscarriages from prohibited claims for induced
abortions that fall outside allowable federal legal parameters.
The IRS would have to define rape. It would have to define
incest. It would have to define what is ``a physical disorder,
physical injury, or physical illness'' that would as certified
by a physician place the female in danger of death. The IRS
would also need to establish a plan certification system to
assure front end compliance as well as medical audit procedures
for measuring corporate compliance.
Second, health plans could be expected to exit this
optional coverage market entirely rather than expose themselves
to IRS standards, audits, disallowances, and exposure for
potential legal violation. The law would continue to permit but
of course not require a plan to cover certain distinct types of
abortions, but the consequences of crossing the line for a plan
would be potentially so severe, i.e., loss of the right to sell
qualified products in exchange, that there is really no
business reason to risk this kind of corporate exposure. This
is particularly true given the weak market for this kind of a
product that is a supplemental product in view of the modest
income of so many people who will be buying their coverage
through exchanges.
Women also conceivably could risk loss of coverage of
abortion of important health care if they abortion supplements
ironically. A health plan could deny claims that in the plan's
view fall within what the plan would consider an abortion
related exclusion as defined by the plan. Clearly such an
exclusion would apply to treatment of the after affects of a
medically indicated abortion whose aim is to restore a woman's
health in childbearing. So, for example, if an abortion
undertaken for physical health reasons resulted in sepsis, the
plan would potentially exclude treatment of sepsis and
aftercare for sepsis because it is related to the abortion.
Another example would be following up on treatment for
stroke level blood pressure triggered by a pregnancy that is
terminated for health endangerment reasons. The plan
conceivably could deny ongoing treatment because the blood
pressure was a condition brought on by a pregnancy that ended
in an excluded abortion. While such a decision may be reversed
on appeal, critical care could be lost.
Finally, the conscience clause provisions bear focus. They
accomplish three goals. First, they explicitly strip legal
protections from entities that are the subject of
discrimination because of their willingness to provide lawful
abortions. Second, the provisions create an expressed private
right of action for both money damages and injunctive relief
against State and Federal Governments for ``actual'' or
``threatened'' violations of the law without definition. Third,
the nondiscrimination provision raises great uncertainty around
EMTALA. While uniform enforcement of EMTALA screening,
stabilization, and medical transfer requirements against
federally obligated hospitals constitutes anything but
discrimination, in my view if you are enforcing the law
uniformly you are not discriminating. The fact is that the
newly recodified provisions without clarifying language raise
troubling questions for administrative and judicial
enforcement. I have the utmost respect for religious healthcare
institutions, but the literature including articles published
in the peer review literature demonstrate instances in which
crucial treatment involving pregnant women was withheld or
delayed over what is termed conscience. EMTALA is a paramount
protection unique in all of health law and in my view Congress
should take no action that begins for any reason the long
unraveling of its absolute safeguards.
[The prepared statement of Ms. Rosenbaum follows:]
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Mr. Pitts. Chair thanks the gentlelady and now for the
final witness, Mr. Douglas Johnson.
STATEMENT OF DOUGLAS JOHNSON
Mr. Johnson. Mr. Chairman, before I begin I would just like
to note that we are not getting any time information. This
device is not working, so if you could give me some sort of 90
second warning.
Mr. Pitts. So sorry--we will correct that.
Mr. Johnson. I would appreciate it. Chairman Pitts,
distinguished members of the subcommittee, I am Douglas
Johnson, Federal Legislative Director for the National Right to
Life Committee or NRLC. NRLC is the Federation of State Right
to Life organizations nationwide. NRLC supports the Protect
Life Act as well as the more comprehensive government wide
approach incorporated in the No Taxpayer Funding for Abortion
Act, H.R. 3.
The Protect Life Act could correct the new abortion
expanding provisions that became law as part of the so called
Patient Protection and Affordable Care Act or PPACA. That law
contains multiple provisions that authorized subsidies for
abortion as well as provisions that could be employed for
abortion expanding administrative mandates. Some of these
objectionable provisions are entirely untouched by any
limitation on abortion. While others are subject only to
limitations that are temporary, contingent, and/or riddled with
loopholes. Federal funding of abortion became an issue soon
after the U.S. Supreme Court decision Roe v. Wade and by 1976
the federal Medicaid program was paying for 300,000 elective
abortions annually. If a woman or girl was Medicaid eligible
and wanted an abortion then abortion was deemed to be
``medically necessary'' and was federally reimbursable.
Unfortunately that pattern was generally replicated in other
federal health programs.And so beginning in the late 1970's
Congress applied restrictions to nearly all of them but this
was done in a piecemeal, patchwork fashion. And many of these
protections were achieved through limitations amendments to
annual appropriation bills. This is a disfavored form of
legislation. For one thing, the limitation amendments expire
with the term of each appropriation bill which is never more
than 1 year. Some of the pro-life policies have in fact been
lost for varying periods of time because of their transient
nature. For example, because of the actions of the 111th
Congress and the Obama White House, today congressionally
appropriated funds may be used for abortion for any reason at
any point in pregnancy right here in the Nation's capitol. And
that is being done, as reported in today's Washington's Post.
We believe that when Congress creates or reauthorizes or
expends a health insurance program it should write the
appropriate abortion policy into the law as was done with the
SCHIP program when it was created in 1997. During the 111th
Congress we strongly advocated that all programs created or
modified by the health care bill should be governed by explicit
permanent language to apply the principles of the Hyde
amendment to the new programs.
I wish to underscore here what many have tried to obscure.
The language of the Hyde amendment prohibits not only direct
federal funding of abortion, but also funding of plans that
include abortion. I would refer to my written testimony in
footnote 10 for the full text of the Hyde amendment and you
will see that it refers to funds that go to any trust fund from
which includes coverage of abortion. And this is explicitly
defined to include the ``package of services covered by a
managed care provider or organization pursuant to a contract or
other arrangement.'' Very similar language is found in the
abortion related provisions that govern other federal health
programs, for example, SCHIP and the Federal Employee's Health
Benefits Program. This exact language is in footnote 12 of my
written testimony.
I have also submitted to the Committee a 24-page affidavit
that I executed that explains four of the major components of
the PPACA that authorized subsidies for elective abortion. Its
focus is primarily on 1, the pre-existing condition insurance
program; 2, the federal tax credit subsidies for private health
plans that cover elective abortion; 3, authorization for
funding of abortion through community health centers; and 4,
authorization for inclusion of abortion in health plans
administered by the federal office of personnel management. And
Mr. Chairman, it is not an exhaustive list.
To summarize, in the PPACA there is nothing on the way that
remotely resembles the Stupak-Pitts amendment. Instead of bill
wide language to permanently apply the Hyde amendment
principles we find a hodgepodge of artful exercises and
misdirection, bookkeeping gimmicks, loopholes, ultra-narrow
provisions that were designed to be ineffective, and provisions
that are rigged to expire. We find abortion authorizations that
are permanent and limitations that expire.
As to President Obama's Executive order it is a hollow
political construct. As discussed further in my written
testimony and in the affidavit, it consists mostly of
rhetorical red herrings, exercises in misdirection, and was
characterized by the president of Planned Parenthood as a
symbolic gesture.
[The prepared statement of Mr. Johnson follows:]
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Mr. Pitts. Thank you. Chair thanks the witnesses for their
statements. Your entire written testimony will be made a part
of the record and at this time we will go to questioning for
the members of the committee. Chair recognizes himself for 5
minutes for questions. First for Professor Alvare. If Catholic
hospitals were to lose their tax exemptions and have to close
their doors because they refuse to perform abortions what would
be the impact on the playing----
Ms. Alvare. Can't claim to be representative of Catholic
hospitals. I do know that there is information that you can
easily access regarding their services in poor areas. Just as
one example that I brought with me today. One, the third
largest Catholic hospital system in the United States, its
statistics alone 19 States, 73 hospitals, 900--excuse me, $590
million in charity care and a great deal of loss as a result of
that. Because of the charity care it is nonprofit and they
regard themselves as having a particular commitment to the
poor, to free clinics, to education, and research. These
hospitals have empirically demonstrated that they provide the
kinds of services to women and the poor in particular that are
exemplary and are thought to be superior in many ways to other
kinds of hospital systems.
Mr. Pitts. Thank you. Mr. Johnson, in your testimony you
estimated that more than one million Americans are alive today
because of the Hyde amendment limitations on government funding
of abortions. What would be the effect of authorizing
government funding of abortion nationwide as a routine method
of healthcare?
Mr. Johnson. Mr. Chairman, this estimate is based on
studies done by the Guttmacher Institute and other critics of
the Hyde amendment and they have given figures. The lowest
figure being the reduction of abortions among Medicaid eligible
population has been on the order of one in four. There have
been some estimates as high as one in two, that if one takes
even the lowest estimate, the 25 percent figure and
extrapolates that over the life of the Hyde amendment there are
indeed more than one million Americans alive today because of
that policy. So we have heard President Obama speak about his
desire for abortion reduction. We believe the Hyde amendment
has proven itself to be the greatest domestic abortion
reduction policy ever enacted by Congress and yet it has been
characterized by in a 19--rather a 2007 Guttmacher Institute
monograph as a ``tragic result of the Hyde amendment'' these
one million births. Mr. Chairman, we think it stands to reason
that if the Hyde amendment is overturned or effectively
circumvented by these mechanisms in the PPACA, the effect is
going to be more abortions, not abortion reduction. We think
that anyone who thinks that the million plus Americans who walk
among us today because of the Hyde amendment constitute a
tragic result should vote against your bill. But those who
believe otherwise we respectfully submit should vote for it.
Mr. Pitts. To follow on, Mr. Johnson, given that President
Obama and the 111th Congress greatly expanded the role of
government in the private insurance market does it seem
reasonable that Congress would correspondingly try to extend
the Hyde amendment and similar measures to prevent taxpayer
subsidies for elective abortions?
Mr. Johnson. These principles have been in place with
respect not only to the Health and Human Services Appropriation
Bill and Medicaid, but in a great many other programs as well
including as I mentioned the Federal Employees Health Benefits
Program which of course covers most members of Congress and
their staffs, and about eight million others. For most with one
brief interruption for the last 24 years, the 200 plus private
plans that participate in that program have been required as a
condition of participation not to cover any abortions except
life of the mother, rape, and incest. It is not a bookkeeping
scheme like you find in PPACA. It doesn't say they can--no, it
says they can't participate in the program if they cover any
abortions. And you know, the scenarios that we have heard spun
out about how it is impossible for insurers to handle this, the
IRS will never be able to administer it--the experience of the
Federal Employees Health Benefits Program itself I think
disproves these sorts of fanciful scenarios.
Mr. Pitts. In other words under the Federal Employee Health
Benefits Plan--Program now, you can purchase abortion coverage
with your own money. Is that correct?
Mr. Johnson. Within the program itself there is no abortion
coverage. It is prohibited by the limitation on the Annual
Appropriation Bill. Insurers are not required to cover any
abortions to participate in the programs, but they are
forbidden to cover any other than life of the mother, rape, and
incest and that has been the case for almost a quarter of a
century. Now, there is nothing of course to stop any private
individual from going out and purchasing abortion coverage with
their own resources on the private market if they choose to do
so. I suspect from the data we have seen that very few people
do that.
Mr. Pitts. Thank you. Chair thanks gentleman, and now
recognizes the ranking member Mr. Pallone for 5 minutes for
questioning.
Mr. Pallone. Thank you. I want to ask each of the panelists
just a yes or no answer. There is a lot of frustration by
myself and on the democratic side of the aisle that you know we
are in the midst of a recession, maybe we are getting out of it
hopefully, but it is still out there, and that we should be
spending our time focused on the economy and on jobs. And in
all honesty just like the Health Care Repeal, I don't see that
even if this bill passes the House it has any chance of
garnering 60 votes in the Senate or being approved by the
President. So I just wanted to ask you, is there anything in
this legislation that creates jobs? Just a yes or no and then I
will move on. Start with Mr. Johnson. Yes, or no, does this
legislation in any way created jobs?
Mr. Johnson. Mr. Pallone, I have no competence to answer
that question.
Mr. Pallone. All right, Ms.----
Mr. Johnson. I would be----
Mr. Pallone. Alvare? I will just move on.
Ms. Alvare. Nor do I. I am here to testify on conscience.
Mr. Pallone. OK. And Ms. Rosenbaum?
Ms. Rosenbaum. It doesn't appear to me that it does.
Mr. Pallone. All right, thank you. Now let me ask--is it
Alvare? Is that how you pronounce it? Now, I am sorry, this is
for Dr. Rosenbaum and I am going to come to you if I have time.
The EMTALA statute prohibits hospitals from dumping a patient
who is medically unstable. If a patient arrives in a life
threatening situation the hospital must treat them until her
life is no longer in danger. The Health Reform Law made clear
that the conscience protections that were written into law did
not repeal or amend the basic EMTALA provisions requiring
hospitals to treat a patient until she is stable. Now the Pitts
legislation changes that. It says that EMTALA is subject to the
abortion provisions. So Dr. Rosenbaum, what does that do? Does
that mean if a pregnant woman's life is in danger and the
medically indicated response is to terminate the pregnancy to
save her life that the hospital can refuse her emergency care
or refuse to transfer her to another facility that would
perform such a life saving procedure?
Ms. Rosenbaum. As long as the later amendment, this
amendment is unclear, the impact of EMTALA, the impact of the
amendment on EMTALA is similarly immeasurable at this point. To
the extent that the statute raises questions about whether or
not EMTALA applies, and also creates a federal right of action
to seek an injunction against the actual or threatened
enforcement of a federal law that discriminates against a
hospital, an administrative agency and a court would face a
very difficult situation in which they would have to reconcile
the language of EMTALA which seems to be an obligation on the
part of hospitals against an express authority now in the
statute to be able to essentially to be able to essentially
evade what is an EMTALA obligation which is of course
stabilization or medically appropriate----
Mr. Pallone. But my fear is that if this bill were to pass,
and again, I don't see how that happens, but if it were to
become law that you could have a situation where the hospital
can refuse the woman emergency care----
Ms. Rosenbaum. But what----
Mr. Pallone [continuing]. Or refuse to transfer her to
another facility that would perform the--save her life.
Ms. Rosenbaum. It would appear that way. I mean, this is
the problem. It is a later amendment that does not clarify how
it is to be applied in an EMTALA situation. And so a court or
an administrative agency would be faced with a very difficult
question and it would seem to imply that the later legislation
actually alters the EMTALA provision.
Mr. Pallone. And so that could happen?
Ms. Rosenbaum. Yes.
Mr. Pallone. OK. Now let me ask Ms. Alvare. You say that
the bill before us today would protect individuals and entities
who are not willing to provide all medical choices to women and
their families even in life saving situations. Now, this is the
conscience aspect. Why shouldn't these protections apply
equally to all beliefs? In other words, why shouldn't we
protect those who believe that they have a moral obligation to
provide all medical service choices in this case, one that is
legal in the country to a woman and families. I mean, I will
give you an example. My concern is, Catholic hospital, I guess,
religious hospital that doesn't believe in abortion. You know,
administrator or doctor, or somebody makes a decision that
because of the mother's life that they are going to perform the
abortion and it is contrary to the beliefs of that particular
religious hospital, and then they fire them or they don't hire
them because they say that they would perform an abortion in
that circumstance. So why aren't we protecting that person so
they can't be fired or they can't be discriminated against? Or
would you protect them as well?
Ms. Alvare. One thing is that our law, the Supreme Court
has said it--whether in the Harris v. McRae or the Webster
decision, our Supreme Court has said that government can favor
life over abortion. It can favor bringing children into this
world versus taking their life.
Mr. Pallone. But the bottom line is then you wouldn't
protect that person against that type of discrimination.
Ms. Alvare. In 38 years of legal abortion there has never
been a situation, not one, where a woman lost her life because
she needed an abortion and didn't get one. So the idea that it
is a medical choice is even contradicted by the evidence, let
alone by statements by people like Dr. Guttmacher of Guttmacher
Institute who said he really couldn't imagine a situation in
which you couldn't deliver the child and protect the mother's
life without that.
Mr. Pallone. But it sounds like you wouldn't be in favor of
passing a law that would do that, that would protect the
person.
Ms. Alvare. In 38 years since Roe v. Wade, there has never
been a conflict. The Catholic Health Association letter that
was referred to as coming in here today indicated that they had
never had a conflict in 38 years.
Mr. Pallone. No, but I am just asking you if you would be
in favor of that kind of a law.
Ms. Alvare. You would have to overturn EMTALA then because
EMTALA itself and I have the provision with me--Section
1395DD(e) says when faced with pregnant woman and child you
most ``stabilize the woman and her unborn child''. So I think
you would have to first of all change what EMTALA says is
emergency care in order to say we would have to kill to provide
care. EMTALA says stabilize to provide care.
Mr. Pallone. I don't think I am going to get an answer so
we will move on.
Mr. Pitts. OK. Chair thanks the gentleman and recognizes
the Vice Chairman of the Subcommittee, Dr. Burgess, for 5
minutes.
Mr. Burgess. Thank you, Mr. Chairman. Well, in fact, Mr.
Pallone, I think you got your answer. EMTALA, if I understood
the comments correctly actually specifies protection of the
unborn. Does it not?
Ms. Alvare. Yes, sir, it does. It is 42 U.S.C. 1395DD
subsection E, it talks about if you are faced with a pregnant
woman ``the health of the woman or her unborn child is in
serious jeopardy you must stabilize them both.''
Mr. Burgess. Well, it is interesting that you said in 38
years of law since the Supreme Court ruling in the early
1970s--I was thinking back and trying to remember the specific
clinical situation that would have occurred that is being
referred to here over and over again and in 25 or 28 years of
medical practice, four of which at Parkland Hospital, a major
downtown public health facility, it never happened. So I guess
sometimes we do try to legislate to the most extreme case, but
we are trying to legislate to a case that no one can identify.
Ms. Rosenbaum, Dr. Rosenbaum, you have referenced in your
opening statement that you have cases from--I think you said
from Catholic hospitals where care was compromised. Do you have
such a body of case reports that you could supply to the
committee? I don't necessarily need to hear about them today,
but I would be very grateful if you would supply those clinical
situations to the committee so that we might evaluate where
those situations have occurred. Because apparently in the legal
literature in 38 years there are not any. My own personal
experience for almost 30 years there are not any. I just fail
to see where are we trying to govern with this. And it is well
established again in EMTALA and in federal statute that the
life of the mother of course can be protected. So there are
extreme problems that do occur, big pregnancy, cancer of the
cervix, required radial therapy, well recognized that is going
to be deleterious to the pregnancy but you do protect the life
of the mother. OK. That--a rare occurrence, but it does happen
and it is taken care of under current law, under PPACA, under
the Executive order, under all existing conditions today. So
again, if you have those circumstances I pray that you would
share them with the committee.
Ms. Rosenbaum. Certainly. There are both actually peer
reviewed literature references and the case that arose in
Arizona last summer involved a near--a woman who was on the
verge of death and who was in an early stage of pregnancy. I
would also note that EMTALA actually specifies that the
obligation to save a life runs independently to the woman and/
or her unborn child. So it is not a matter of only being able
to save them as a unit. It is a matter of having to save
whatever life----
Mr. Burgess. Yes, let me stop you there because in present
day practice of obstetrics in this country, having to choose
between the life of one and the life of the other as a
practical matter that just doesn't come up. It just doesn't.
There are--yes, there are pregnancies that cannot be saved. We
all recognize--heartbreaking when they happen. Yes, there are
situations that the baby has to be delivered so early that it
may have a tough go and may not survive. We all recognize when
that happens, but it is just rare. I can't--and again, I am
trying to think back in my own volume of clinical experience
which was not insignificant. I cannot remember ever having to
stand outside the patient's room with the family and say look,
we got to make a decision here. It is one or the other. Which
would you have me save? It just simply doesn't happen. And
nothing that we are doing here today--I think, we may add just
intellectual discussion, but as a practical matter I don't
think we are affecting anything at all one way or the other
again, either in PPACA, Executive order, EMTALA, or any
existing statute. Let me just ask you, Ms. Alvare one quick
question. Some opponents of the legislation that is under
consideration today seem to suggest that by denying taxpayer
funding of termination of pregnancy that we are denying access
to a basic form of health care. Is elective termination of
pregnancy a basic form of health care?
Ms. Alvare. I think I wish I had an M.D. in addition to my
J.D. In the legal literature it has been increasingly said and
the Supreme Court's decision in the Gonzales v. Carhart said it
most basically. They referred to abortion as killing. The
improvements in embryological knowledge, genetic knowledge, et
cetera that lawyers use in order to come to a hearing like this
and make our case, in order to make State legislation refer
more and more to characteristics of unborn life that place it
firmly within the context of being a member of the human
family.
Mr. Burgess. And I would just say the 38 years since Roe v.
Wade the game changer has been the refinement of
ultrasonography as a clinical tool. What became just something
in theory in 1971 is very much reality today with the ability
to look inside and make determinations about the health and
condition of a baby well before the time of birth. These
technologies didn't exist at the time of Roe. You talked about
this procedure has been pushed almost of the periphery of the
practice of medicine. And I think that is a big reason why.
Thank you.
Ms. Alvare. Thank you.
Mr. Pitts. Chair thanks gentleman. Chair recognizes the
ranking member Mr. Waxman for 5 minutes.
Mr. Waxman. Thank you very much, Mr. Chairman. Ms. Alvare
just to follow up on that line of questioning, abortion is
sometimes a medically necessary procedure, medical procedure.
Do you agree with that statement?
Ms. Alvare. Again, I would like to quote Dr. Guttmacher,
the founder of the Guttmacher Institute. In 1967 when obstetric
care was not even as good as it is now who said today it is
possible for almost any patient to be brought through pregnancy
alive unless she suffers----
Mr. Waxman. No, I really--excuse me. I really asked you the
question. Do you think that it could be a legitimate medical
procedure?
Ms. Alvare. I have to rely on the doctors, sir, and looking
at----
Mr. Waxman. And what does--the doctor says yes or no?
Ms. Alvare. He says even if she suffers from a fatal
illness such as cancer or leukemia, abortion would be unlikely
to prolong much less save life. I can provide you with
additional medical literature----
Mr. Waxman. Well, we do allow abortion under the Hyde
language to save the life of the mother. Do you acknowledge
that there could be circumstances where the life of the mother
would be lost if a termination of a pregnancy didn't take
place?
Ms. Alvare. Not having been present when that was
negotiated, I imagine that that is the kind of thing that in
politics is said and is not necessarily have referenced to the
medical literature. But in public debate and at public
insistence they want the language of life of the mother whether
it is----
Mr. Waxman. You would be against abortion under any
circumstance. Is that an accurate statement?
Ms. Alvare. I would not--yes, I would not say we could
knowingly kill human life.
Mr. Waxman. OK. Well, I respect that point of view. I
respect the idea of a conscience clause. I would not want you
if you were a medical person to have to perform an abortion
even though some people would say it would be appropriate under
the circumstance. And that is why I support this conscience
clause idea because a Catholic doctor shouldn't be required to
perform abortions if that individual feels that way. A Catholic
hospital shouldn't be required to do it either. The Affordable
Care Act is very clear on this point and does provide these
protections for people with a conscience. But let me ask you
this. If a doctor in good conscience or a nurse felt that they
were morally required to provide an abortion to a victim of a
rape who requests it would you respect that as a conscience
clause protection?
Ms. Alvare. Again, I prefer what the Supreme Court has said
on this and I am glad they have, which is that the State can
prefer life over abortion. And if a doctor feels that he or she
wants to do that then probably they should steer clear of
conscience driven health care facilities as a place of
employment.
Mr. Waxman. Well, they have a different conscience than
you.
Ms. Alvare. They are free to do it elsewhere.
Mr. Waxman. They have come to a different conclusion than
you do.
Ms. Alvare. Yes.
Mr. Waxman. You want us to protect the conscience of
someone out of adherence to the Catholic Church not to provide
abortions. Would you respect the fact that someone with a
different religious point of view or maybe even a Catholic as
well who would say I think this would be morally reprehensible
not to provide a victim of a rape, a rape a service to
terminate the pregnancy. Now let me ask that to Ms. Rosenbaum
because----
Ms. Alvare. Could I respond to one thing?
Mr. Waxman. Sure.
Ms. Alvare. I would also--I don't think this is just about
Catholics. Morally pro-life atheists----
Mr. Waxman. Well it is not.
Ms. Alvare [continuing]. I hope would get just as much
protection.
Mr. Waxman. You are absolutely right, but people's
conscience ought to be respected. It ought to be both ways. If
we are going to say we want to respect the conscience of the
person who doesn't want to do abortions, I think we have to
respect the conscience of someone who feels it is morally
required of them to perform that service. Let me ask you about
the provision in this bill because it says State laws can allow
insurance companies to refuse coverage of emergency
contraception. Well now, let me go back. There is one provision
in this bill that says State laws can do more than discriminate
on abortion because they can look at the conscience on other
issues as well. Originally it had conscience related to
abortion but struck the abortion. It said whenever there is a
conscience issue that conscience issue ought to be respected. I
would like to know whether this can be read to say that State
laws can allow insurance companies to refuse coverage of family
planning and contraception because it offends the company's
conscience.
Ms. Alvare. Excuse me, sir, could you tell me which
provision that is because I came with the Protect Life Act.
Mr. Waxman. Section 1303 of the Affordable Care Act dealt
exclusively with treatment of abortion. And then this bill
strike regarding abortion out. Ms. Rosenbaum, do you know--are
you familiar with the provision?
Ms. Alvare. I do know what you are talking about now.
Mr. Waxman. OK. Well I----
Ms. Alvare. I am sorry, would you like me to answer that?
Mr. Waxman. I would like an answer, yes or no answer,
because it seems to me they would be allowed--an insurance
company would be allowed to say that you can't have family
planning or contraception.
Ms. Alvare. That might----
Mr. Waxman. It seems to me the State law can also allow
insurance companies to refuse coverage of emergency
contraception like a morning after pill. It seems to me this
can be read to say that State laws could allow insurance
companies or doctors who refuse treatment of people with AIDS
because homosexuality or drug use offends their conscience. Or
that we can allow insurance companies to refuse infertility
services because it offends the company's conscience. Or not to
pay for therapies that are derived from stem cell research
because it offends their conscience. Ms. Rosenbaum, am I
correct in reading that change as allowing those state laws?
Ms. Rosenbaum. I agree the wording is altered to eliminate
the reference to abortion.
Mr. Waxman. Yes. I find that troubling. Thank you, Mr.
Chairman.
Mr. Pitts. Thanks to the gentleman. Chair recognizes the
gentlelady from Tennessee, Ms. Blackburn for 5 minutes.
Mrs. Blackburn. Thank you, Mr. Chairman. Ms. Rosenbaum, I
wanted to--there you are. Now I can see you. OK. Catholic
hospitals since we were just looking at that. Should they be
required to perform all the abortions that you would deem as
medically necessary? Because it seems like we are debating and
discussing medically necessary and you all continue to go to
that provision. So do you think Catholic hospitals should be
required to perform abortions that you yourself would deem as
medically necessary?
Ms. Rosenbaum. I think obviously there is a wide range of
opinion on how the term medically necessary is used. I don't
think--I am actually a very strong believer in a conscience
clause and would just clarify that EMTALA itself certainly does
not obligate a hospital to provide medically necessary
abortions, however we define the term.
Mrs. Blackburn. OK. Let us talk then about medical
students. Medical students that are opposed to abortion, should
they be required to receive training in how to perform
abortions?
Ms. Rosenbaum. Again, it is my understanding that the
various provisions, the various aspects of conscience clauses
as we have come to understand them today are something that
everybody believes in that are actually reflected both in
underlying law and in the Affordable Care Act. But I think that
is a different question than the very specific EMTALA
obligation.
Mrs. Blackburn. OK. Do you agree with President Obama? He
made a statement that he thinks the use of abortion should be
rare. Would you share that view?
Ms. Rosenbaum. As a mother and hopefully a grandmother I
agree emphatically.
Mrs. Blackburn. OK. Mr. Johnson, good to see you. I want to
ask you about a statement that I have read. It was made by Rahm
Emanuel, who had been the Chief of Staff over at the White
House as we had the Pitts-Stupak language last year. And he was
giving an interview with the Chicago Tribune with their
editorial board. Have you seen that statement, sir? Do you know
what I am ready----
Mr. Johnson. Yes, I have Congressman.
Mrs. Blackburn. OK. And I thought that it was just so
telling when he said, and I am quoting here ``I came up with an
idea for how an Executive order to allow the Stupak Amendment
not to exist in law.'' So you know, this is of concern to me
when you see that kind of language. And I just ask you, sir,
when you look at that is that Executive order addressing
abortion funding insufficient to assure that taxpayers are not
going to end up footing the bill for abortions?
Mr. Johnson. The Executive order is a hollow political
construct. The president of the Planned Parenthood Federation
of America described as ``a symbolic gesture''. I think these
are two ways of saying the same thing. We could go through it
section by section if we had time and I do in my affidavit that
I referred to earlier which is available here and on our Web
site. But in substance there is a great deal of rhetorical
misdirection in the first section. The actual operative
language only speaks to two of the many abortion implicating
components of the PPACA itself. In one case it merely
reiterates the objectionable language that allows the tax
credits to be used to purchase plans that cover elective
abortion and in the other case it purports to put a restriction
on abortion funding through community health centers but there
is no statutory basis for it and so it is doubtful that they
could make that stick if it ever became an issue. The other
provisions in the bill, in the PPACA itself which implicate
abortion policy are not even addressed in the Executive order.
And so we saw, for example, this summer the very first
component of the packet to be implemented: the high-risk
insurance pool program. Once we got a hold of some of the plans
that had been approved by HHS we found three of those of the
ones we were able to get explicitly covered elective abortion.
And when we blew the whistle on this last July and a public
controversy ensued, after about a week the administration said
OK. They would employ their administrative discretion not to
pay for abortion in that program. But they said and we said and
the ACLU said and everybody agreed they were authorized to do
so and they had already approved plans to do so. There is
nothing in the bill to prevent it. It was authorized. There is
nothing in the Executive order that even mentioned it. All of
these events are recited in detail in my written testimony and
in the affidavit.
Mrs. Blackburn. Thank you. Yield back.
Mr. Pitts. Chair thanks the gentlelady and recognizes the
ranking member emeritus Mr. Dingell for 5 minutes.
Mr. Dingell. Thank you Mr. Chairman. Ladies and gentlemen,
I heard someone at the committee table--I don't remember who it
was, say that there are a number of subsidies for abortion in
federal law. Could you tell me where they are, please, starting
with Mr. Johnson?
Mr. Johnson. There are subsidies----
Mr. Dingell. For abortion.
Mr. Johnson. Are we talking about the PPACA or other law?
Mr. Dingell. Well all right, let us take first of all the
Health Care Reform Bill. Are there subsidies in there?
Mr. Johnson. Yes, we described them.
Mr. Dingell. Where are they and what are they?
Mr. Johnson. In the written testimony I just gave one
example: the high-risk insurance plan. The Administration in
July was already approving State plans that covered elective
abortion explicitly. They then backed off but they asserted and
they were correct that they were authorized to do so by the
statute.
Mr. Dingell. All right now----
Mr. Johnson. They weren't mandated to do so, they were----
Mr. Dingell. All right, Let us analyze that. When you
subsidize something you pay more than the cost of it. Is that
right? That would be a good definition isn't it?
Mr. Johnson. The cost of what, sir?
Mr. Dingell. Well, if I am subsidizing abortion I am going
to pay more than the cost of the abortion to the person that I
am giving the money to. Is that right or wrong?
Mr. Johnson. I am not sure I follow you, sir.
Mr. Dingell. Well----
Mr. Johnson. If that is----
Mr. Dingell. In the farm bill we give a subsidy and there
we subsidize farmers for producing goods. We essentially pay
them to do that. So where in this--where in the Health Reform
Bill is there where we subsidize it, where we pay people to
have it?
Mr. Johnson. Well, that was----
Mr. Dingell. Where we give them a financial inducement?
Mr. Johnson. This first example which would be the first in
a long list I could give you if I had time----
Mr. Dingell. All right.
Mr. Johnson [continuing]. Is 100 percent federally funded
program. It is 100 percent federally funded. That is where it
goes.
Mr. Dingell. But 100 percent federal funded----
Mr. Johnson. To purchase the health coverage----
Mr. Dingell. I am sorry?
Mr. Johnson [continuing]. For the population that qualifies
for this particular program, the pre-existing condition program
created by the PPACA. OK. Now, so we take it as a premise.
Mr. Dingell. You are telling me it is a pre-existing
condition prohibition pays a subsidy for people to get
abortions?
Mr. Johnson. They were paying 100 percent of the cost of
State plans.
Mr. Dingell. One hundred percent of what cost?
Mr. Johnson. They were covering the cost of the health
plan, sir. Entire cost----
Mr. Dingell. One hundred percent----
Mr. Johnson [continuing]. Of the health plan is being paid
by the Federal Government.
Mr. Dingell. Well, maybe I am looking at a different
session but I am curious. We don't--the government doesn't pay
100 percent of that. We simply say you got to pay--you say to
the insurance company you have to give folks this--you have to
give them coverage and may not deny it because they have a pre-
existing condition. What--how?
Mr. Johnson. No, that is--you are--that is a different part
of the law.
Mr. Dingell. All right. To what----
Mr. Johnson. I am talking about----
Mr. Dingell. To what do you refer? I am having a hard time
following you.
Mr. Johnson. I am talking about it is the high-risk pool
program that pre-existing insurance----
Mr. Dingell. All right, so the high--the pre-existing where
does that subsidize?
Mr. Johnson. Section 1101.
Mr. Dingell. What----
Mr. Johnson. This is for the qualified population the
Federal Government pays 100 percent of the cost of their health
coverage.
Mr. Dingell. Of the health coverage. Do we pay 100 percent
of the rest of the--wait, hold--do we pay----
Mr. Johnson. And the State plans were explicitly covering--
pay for----
Mr. Dingell. Just yes or no? Do we pay or?
Mr. Johnson. Yes. Of course.
Mr. Dingell. We pay 100 percent of the cost of the
abortion?
Mr. Johnson. When the government pays for health insurance
it pays for what the insurance pays for, Mr. Dingell. And if
you adopt the view that it is a bottom line issue. Look at back
when Medicaid was paying for 300,000 abortions a year before
there was a Hyde amendment. Now, every time they paid for one
of those abortions they actually saved the cost of childbirth
which is more expensive than the abortion. So you could say
there was no bottom line impact and that the government wasn't
actually subsidizing abortion when they were paying for 300,000
elective abortions a year. We think that----
Mr. Dingell. Let us stay----
Mr. Johnson [continuing]. Would be tortured logic.
Mr. Dingell [continuing]. With my question and not get off
into rather odd dialectic here if you please. I am trying to
understand if the Federal Government pays the cost of the
overage so that the State may offer this particular benefit to
people how is it then that they are subsidizing abortion? I am
trying to understand how----
Mr. Johnson. I am not sure why you keep talking about the
State. This is a 100 percent federally funded program.
Mr. Dingell. OK. Well, there are actually several programs
here, but all right, let us say it is 100 percent federal.
Where--how is the Federal Government, if they pay 100 percent
of that cost, subsidizing abortion?
Mr. Johnson. If the Federal Government is paying for
somebody to enroll in this program in, say New Mexico which is
one of the plans, and that plan covers elective abortion, then
the Federal Government is paying for every abortion that is
paid for by that plan. How could it be otherwise?
Mr. Dingell. All right, what are the other subsidies?
Mr. Johnson. There are authorizations in the PPACA for a
great deal--what seven billion in money to community health
centers. These----
Mr. Dingell. So do community health services--centers
provide abortions?
Mr. Johnson. Some do.
Mr. Dingell. How many?
Mr. Johnson. This was disputed. We don't know.
Mr. Dingell. I have got seven of them in my District and I
am not aware of one that does.
Mr. Johnson. There is a national project called the
Reproductive Health Equity Project I believe which is devoted
to trying to get them to adopt abortion as part of their
regular----
Mr. Dingell. Is that covered by the Hyde amendment?
Mr. Johnson. It is not, sir, because these funds are self-
appropriated in the packet itself. Now, the President in his
Executive order purports to say please don't use those monies
for abortions but there is no statutory basis for it. The Hyde
amendment only covers what flows through the HHS appropriations
pipeline. The PPACA has a great many new pipelines self-
appropriated at this----
Mr. Pitts. The gentleman's time has expired.
Mr. Dingell. Thank you, Mr. Chairman.
Mr. Pitts. Gentlemen, the Chair recognizes the gentleman
from Pennsylvania, Dr. Murphy for 5 minutes.
Mr. Murphy. Thank you, Mr. Chairman. I hope I can--you can
see me back there. I just want to clarify the stream and what
is the law and not the law. Can federal money such as Medicare,
Medicaid be used to purchase medical supplies at health
clinics? Can that be used? Yes or no, anybody from the panel.
Ms. Rosenbaum. Certainly Medicare and Medicaid pay for the
supplies.
Mr. Murphy. OK yes, OK. And so they can pay the rent and
heating and utilities that clinics that perform a number of
services including abortions?
Ms. Rosenbaum. There would be no payment. I am----
Mr. Murphy. But if it is the same building it would pay for
the medical supplies and utilities and the rent et cetera where
some types of medical procedures are covered, but also where
abortions are also performed. Is that correct?
Ms. Rosenbaum. You could not bill for a prohibited feature.
Mr. Murphy. But if it pays the rent and utilities and the
medical supplies you could use Medicare funds, Medicaid funds
to pay for that where those abortions may also exist. Am I
correct?
Ms. Rosenbaum. No, you could not bill for a prohibited
feature. And you could not pay for----
Mr. Murphy. Can you--if an abortion takes place and there
is medical equipment needed: sutures, scalpels, scissors,
clamps, gauze, medicines, can some of those that are paid for
in the clinic in one category filing or closet be also used for
a woman who may be having an abortion?
Ms. Rosenbaum. I still don't understand. You cannot bill
for a prohibited feature.
Mr. Murphy. When a clinic purchases supplies do they have
two separate medical supply rooms? One that is paid for--the
money could come from federal or say taxpayer dollars such as
Medicaid and another entirely separate funding stream where
supplies would come from? Are they kept entirely separate? Does
anybody on the panel know? OK. I hold in my hand a federal
grand jury report about a clinic in Philadelphia, first
judicial district of Pennsylvania. It is 260 pages worth of
shocking and horrifying descriptions of what took place at the
Women's Medical Society. It is--and it has procedures and lists
of things too gruesome to describe. Many babies who were born,
who were viable and were left on a table until the doctor would
come in and use scissors to sever their spine. The fellow
Rhenus Clinic is up for many charges of murder although it is
estimated this actually took place in the hundreds. Now, I want
to show you a document here which is fairly important with
regard to this that--with regard to how one billed for some of
these services. And what it has on this document, it is very
interesting the column of how things are paid for because it
lists some of the prices. Let me see if I can find it here. It
lists some of the prices for these services and in this column
it says you know paid for by Medicaid and for--and then part
was out of pocket expenses. Does anybody--here would help me
find that paper. Anybody know how that could be?
Ms. Rosenbaum. I presume you would have to ask the
Pennsylvania Medicaid folks.
Mr. Murphy. I mean the thing that is real difficult for me
is we are told it is illegal and yet here is a clinic that has
operated for quite a time billing Medicaid. I want to know how
this is where it has on this price list and it is broken down
by the age of the fetus from 6 to 12 weeks under discount price
for Medicaid and cash it is $330. Thirteen to 14 weeks
gestation is $440. When it is 21 to 22 weeks it is 1180
although the 23 to 24 weeks because it is a 3 day procedure of
dilation for a partial birth abortion it is 1525. The prices go
up according to the age of the baby. But it says Medicaid and
cash and I don't understand how if we are saying federal taxes
don't go towards paying for abortions I just want to make sure
we are not living in a delusional world. Is it used or not?
Ms. Rosenbaum. A State Medicaid program, a state Medicaid
agency can use nonfederal share funding to pay for a broader
range of services.
Mr. Murphy. How do they do that? Do they mark the bills
that come from the Federal Government and separate them into a
pile?
Ms. Rosenbaum. Yes. They literally segregate out claims
that would be federally allowed.
Mr. Murphy. So state taxpayer dollars----
Ms. Rosenbaum. This is a----
Mr. Murphy [continuing]. Are going toward this? But State
taxpayer dollars can go toward these abortions?
Mr. Johnson. I have a different view on this point, Mr.
Murphy.
Mr. Murphy. Yes.
Mr. Johnson. First of all, it is not true that the Hyde
amendment allows states to use matching funds in Medicaid for
abortions other than life of the mother, rape, and incest. This
is explicitly prohibited by the text of the Hyde amendment
which again the complete text is footnote 10 in my written
testimony. But a state may set up a parallel program with
entirely state funds. Technically it is not Medicaid----
Mr. Murphy. Taxpayer funds.
Mr. Johnson [continuing]. As former administrator has
pointed out--to cover whoever they want with entirely state
funds. But Pennsylvania has not done so. Pennsylvania in fact
has resisted even the expansion to the rape/incest back during
the Clinton Administration. So I can't explain the document
that you have in your hand. I think that does bear further
investigation. And it really illustrates how particularly with
respect to late abortions a lot of the things that were told,
statistics and so forth are highly suspect. I mean, you are
told that late abortions are quite rare. Well, even by the
Guttmacher Institute figures there is at least 20,000 a year
after the first half of pregnancy in the fifth month or later--
maybe a lot more.
Mr. Murphy. Mr. Chairman, I would just ask as part of what
the committee takes action in researching this issue in terms
of how that funding stream was done and look at this is it an
example or not of how taxpayers funds were used to pay for
abortions. Thank you. I yield back.
Mr. Pitts. Without objection. Thank you. The Chair
recognizes the gentlelady from California, Ms. Capps for 5
minutes.
Mrs. Capps. Thank you, Mr. Chairman and before I get to my
questions I want to ask unanimous consent to submit for the
record statements from NARAL, an organization opposing this
legislation.
Mr. Pitts. Without objection, so ordered.
[The information appears at the conclusion of the hearing.]
Mrs. Capps. Thank you. Previously my colleague Mr. Waxman
was asking some questions and I want to follow up on one of his
questions to you, Professor Alvare. Should a health care
provider whose conscience dictates that they should provide
abortion services just like in Mr. Waxman's example of a woman
who had been raped. If you from your lawyer's point of view
from being an attorney and a professor of law, should that
individual provider's conscience receive the same protection
under the law that you support for those opposed to abortion?
We are talking about the conscience clause here.
Ms. Alvare. The first thing with respect to this particular
legislation is that they are free to provide abortions in the
United States. It remains legal. It remains legal throughout
pregnancy and they are free to do it. I would not want
legislation that particularly protects their conscience to do
it within an institution that doesn't want to do it. They are
free to do it anywhere they like except of course within an
institution whether they are religious or just morally opposed
to abortion. We prefer as a nation life over death. The Supreme
Court has allowed States to do that and if they want to extent
conscience protection particularly to people who do not want to
provide abortions it is because those are the people being
forced. People who want to provide abortions are not stopped
from doing so.
Mrs. Capps. So you are referring to an anti-discrimination
law?
Ms. Alvare. People who want to provide abortions are not
stopped from doing so. That is the state of our country right
now.
Mrs. Capps. OK. Let me point out that you have asserted
also that poor and vulnerable women are often treated by
Catholic hospitals and that the protection of conscience and
care for vulnerable women are not opposite values. But this is
the situation that Professor Rosenbaum brought up. November of
2009, a 27-year-old pregnant woman brought to St. Joseph's
Hospital, a medical center in Phoenix, Arizona suffering
pulmonary hypertension. To quote the hospital in that case the
treatment--her hypertension was exacerbated by the pregnancy
and the treatment necessary to save her life required the
termination of an 11 week pregnancy. This decision was made
after consultation with the patient, her family, her
physicians, and in consultation with the ethics committee of
the hospital. Fortunately because of the doctor's actions in
this case this woman lived. That is what you are referring to
and then went home to care for her four children. Now in your
testimony, Professor, you describe the need for institutions
and medical providers to be able to choose against performing
health care services that they find objectionable. Do you
believe that if--that the hospital should have had the choice
in a different situation or with a different set of committees
and so forth to let this woman die without a treatment or
referral?
Ms. Alvare. Congresswoman, I think the hospital would
disagree with your characterization. The details of this
particular situation have never been fully, publicly verified--
--
Mrs. Capps. But you could answer my question as an
attorney. Say the details were----
Ms. Alvare. Well, they said it wasn't an abortion,
Representative.
Mrs. Capps. Well, but it--the--then----
Ms. Alvare. At the hospital.
Mrs. Capps. Then make this a hypothetical situation.
Ms. Alvare. OK.
Mrs. Capps. As a professor of law in this kind of situation
do you believe that a hospital with a conscience clause who
chooses not to perform these procedures should let this woman
die? Or someone who is hemorrhaging which is sometimes the case
in a pregnancy and only has a few minutes to live and in some
parts of this country there is not another hospital within the
time that would be allotted.
Ms. Alvare. Then if you believe that unlike what Guttmacher
says----
Mrs. Capps. I am asking you to answer for yourself.
Ms. Alvare. Yes, that--but it is premised on the question
that you believe this situation could occur. Doctor and
Representative Burgess has suggested it hasn't--38 years of
legal abortion it hasn't.
Mrs. Capps. But the conscience clause should apply--it
needs to apply.
Ms. Alvare. Where we really need some conscience protection
in a big way is at the health department officials that need
investigating.
Mrs. Capps. But you are not answering my question,
Professor.
Ms. Alvare. No, I think I have with due respect that we
don't have that situation. It is hypothetical. What is not
hypothetical is the dozens of women dying at abortion clinics
like Dr. Gosnell's. We need protection for those women and the
situation in Phoenix as you said you----
Mrs. Capps. Let me put it in another way. I don't want to
interrupt you, but I--there is such little time. In your
testimony you seem to indicate that an individual with life
threatening emergency has time to Google all the available
medical services and she could get to some other place to find
a treatment for her life threatening hemorrhage. For this woman
to receive the care she might need she would have to self--do
you not think this is an incredibly unreasonable action to
expect from a woman in that sort of condition?
Ms. Alvare. I never referenced Googling hospital services
in any of my testimony. There is nothing similar to that in my
written testimony. What I am telling you is that when it comes
to women dying in connection with abortion we have dozens and
dozens and dozens of examples----
Mrs. Capps. But doesn't--but you----
Ms. Alvare [continuing]. At abortion clinics but not in a
hospital setting. None in 38 years.
Mrs. Capps. I yield back.
Mr. Pitts. Chair thanks the gentlelady and recognizes the
gentleman from Georgia, Mr. Gingrey for 5 minutes.
Mr. Gingrey. Mr. Chairman, thank you. I want to refer back
to a line of questioning that the ranking member brought up
earlier. I don't think he is still here, but this is in regard
to the questions over conscience protections and I am going to
address this to Ms. Alvare. Does the Pitts legislation, the
Protect Life Act, does it provide any additional conscience
protections that are not included in the Patient Protection and
Affordable Care Act, sometimes referred to as ``Obamacare.'' Or
indeed President Obama's Executive order. And if so, why do you
think those protections should be adopted through enactment of
the Pitts legislation before us here today?
Ms. Alvare. Thank you. A good deal of that is to preserve
what we always had in the Hyde-Weldon legislation. For instance
specific examples, the Affordable Care Act extended
nondiscrimination protection with regard to health plans but
not as against actions of government. The Stupak-Pitts
amendment which was adopted by voice vote, by the full Energy
and Commerce Committee in 2009 included those protections just
like Weldon did. It was considered so uncontroversial that it
included those on a voice vote. Additionally and this is where
I would appreciate the opportunity to clarify what I believe
was Congressman Waxman's fundamental misunderstanding of that
piece of the Protect Life Act that talks about regarding
abortion. He thought that by striking that language out of the
Affordable Care Act and putting other language in we were
actually allowing for hospitals to refuse to provide or health
care providers, et cetera--any entity to provide this wide
array of health care services that he listed. In fact, that was
just the striking of a heading because the heading did not
appropriately characterize what went underneath it. And in
addition, it was connected with amending the Affordable Care
Act to make sure that not only did it not preempt State laws on
abortion, but it also didn't preempt those 47 States and the
District of Columbia that already have conscience protection on
the books. So his reading of that particular piece of Protect
Life Act I would say is not--would not be what the text is
saying. And that what it was doing that the Affordable Care Act
didn't do but now we would have under the Protect Life Act was
to protect all those State's conscience protection clause.
Mr. Gingrey. So Ms. Alvare, in just in summary from what
you say, clearly your opinion is that what is in Patient
Protection Affordable Care Act and also in the Executive order
does not go far enough in regard to the conscience clause;
therefore, the need of that provision, that section of the
Protect Life Act in the Pitts bill.
Ms. Alvare. On its face----
Mr. Gingrey. Yes.
Ms. Alvare [continuing]. Textually speaking Protect Life
Act does----
Mr. Gingrey. And I think that is a yes and I am going to
accept that----
Ms. Alvare. Yes.
Mr. Gingrey [continuing]. Because my time is getting
limited. I did want to go to Mr. Johnson. And Mr. Johnson, some
have suggested that the current existence of the Hyde amendment
and the President's Executive order mean there is no need for
the Pitts legislation. Does President Obama's Executive order
support the Hyde amendment and does his Executive order address
all of the concerns regarding federal funding of abortion?
Mr. Johnson. The reference in the Executive order, the Hyde
amendment is just discursive. It is a form of misdirection. Of
course, the bill doesn't repeal----
Mr. Gingrey. Let me interrupt you just for a second. I will
let you answer. And I think that came up a little bit earlier.
My colleague from Tennessee, Ms. Blackburn mentioned the
interview that the former Chief of Staff to the President, Mr.
Rahm Emanuel had in an interview with the Chicago Tribune, he
essentially said that. Did he not? You go ahead.
Mr. Johnson. Yes, and that is why president of Planned
Parenthood said it was just a symbolic gesture. By the way, I
am sorry Mr. Dingell is not here anymore because my associate
handed me the memo from the Congressional Research Service
about the high-risk pool program that we were discussing a few
minutes ago and it says--this is a memo from the CRS July 23,
2010, and I quote ``Because the Hyde amendment restricts only
the funds provided under the appropriations measure for the
Departments of Labor, HHS, and Education, it would not seem to
apply to the funds provided for the high-risk pools.'' And that
is why the ACLU criticized the White House when they made the
discretionary decision after the public controversy last July
not to fund abortions in that particular program. They had the
authority to do so under the PPACA. They decided not to because
of the controversy.
Mr. Gingrey. Mr. Johnson, let me interrupt you just
quickly. In the last 5 seconds I have do you think then that
the Protect Life Act is an effort to codify, essentially to
codify the language in the Stupak-Pitts amendment that was
passed by this house in November of 2009?
Mr. Johnson. Yes, the bill was patterned very closely on
the amendment that passed the house by----
Mr. Gingrey. With much Democratic support.
Mr. Johnson [continuing]. Two-hundred forty votes, which
was one quarter of all the Democrats and no Republican voted
against it.
Mr. Gingrey. Thank you. Yield back.
Mr. Pitts. Chair thanks the gentleman and recognizes the
gentlelady from Illinois, Ms. Schakowsky for 5 minutes.
Ms. Schakowsky. Thank you, Mr. Chairman. I wanted to ask
you Mr. Johnson, do you want to stick with your statement that
the Federal Government pays 100 percent of the high-risk pools?
Mr. Johnson. Yes, and in fact that statement is up on the
Secretary Sebelius's Web site.
Ms. Schakowsky. I have in my hand the Illinois plan, the
Illinois Pre-existing Condition Insurance Plan and it says how
is IPXP being funded. In addition to the federal funds, the
IPXP will be funded by premiums paid by enrollees and here is
the whole list of the money that is being paid by the
enrollees. This is not a question. I want to say for the record
that this is not 100 percent paid for by the Federal
Government. And if I could just have a yes or no answer to
this, did the National Right to Life Committee support the
changes to the Hyde amendment that were originally included in
this bill forcible rape and regarding incest if a minor?
Mr. Johnson. I can address that question, but not with a
yes or a no.
Ms. Schakowsky. Well, it seems pretty simple. Did the
organization support those?
Mr. Johnson. We supported the bill as introduced. We also
support the current policy which is incorporated in the Hyde
amendment. I believe that these--well, Congresswoman if you
want my position then you will have to allow me to answer in my
own way. We support the policy that is incorporated in the Hyde
amendment. It is not perfect, but we do support it. And we
supported the bill as introduced. It is not perfect either. You
know we could discuss the history of how the language was----
Ms. Schakowsky. No, I--medical doctors on--however, my
understanding of the National Right to Life constituent views
of the term for--they said see it as what we are talking about
as frivolous or--so let me ask you this. Is it elective when a
woman has an abortion because she will go blind because of the
use of all the----
Mr. Johnson. The term elective as it has been used the last
couple of years and in testimony today is a kind of shorthand
for abortions outside the scope of the Hyde exceptions, life of
the mother, rape, and incest. It is not a moral judgment or an
ethical judgment on these other circumstances. It is just a
shorthand way----
Ms. Schakowsky. So in other words by that definition
elective, if a woman would go blind as a result of pregnancy
that would be outside of Hyde and that would be elective?
Mr. Johnson. That would be elective as the term has been
used in some of this discourse as a form of shorthand. It does
not--the circumstance you have just described is not to prevent
the death of the mother as you have just stated. It is not
rape. It is not incest.
Ms. Schakowsky. Right, OK. So is it elective then--I want
to just get this on the record if a woman with an ectopic----
Mr. Johnson. I have answered your question.
Ms. Schakowsky. No, I am asking another question. Excuse
me. If the--is it elective if a woman with an ectopic pregnancy
has the embryo surgically removed while leaving the fallopian
tube intact?
Mr. Johnson. What you have described many would dispute as
any kind of an abortion, but if it is to be considered an
abortion it would be considered an abortion to save the life of
the mother and certainly allowed by Hyde. Indeed this was
explicitly in the Hyde language back in the '70's I believe or
at least in the conference report. But it has never been an
issue.
Ms. Schakowsky. If--is it elective if a woman miscarries
one of the twins she is pregnant with and terminates the
pregnancy of the second fetus after doctors conclude there is
no hope for survival?
Mr. Johnson. For whose survival, Congresswoman?
Ms. Schakowsky. For the--no hope for survival of the fetus.
Mr. Johnson. The Hyde amendment does not permit federal
funding of abortion of a child because the child has a poor
prognosis or a handicap. The criteria is if the life of the
mother would be endangered if the pregnancy were be carried to
term.
Ms. Schakowsky. So, no hope for survival does not
constitute--that would be elective? No hope for survival.
Mr. Johnson. No hope for survival of the child for some
time after birth? Is that what you are saying?
Ms. Schakowsky. That the child cannot perhaps survive the
full nine months or could not survive after birth. Right.
Mr. Johnson. The Hyde amendment does not permit federal
funding of abortion as a form of prenatal euthanasia.
Mr. Pitts. The Chair thanks the gentlelady and recognizes
the gentleman from Louisiana, Mr. Cassidy for 5 minutes. You
want to step back here? We will hold the five.
Mr. Cassidy. Hi Ms. Rosenbaum. In full disclosure to
everybody else, you and I have authored and coauthored a paper
before.
Ms. Rosenbaum. I have to put my mic down for that. We have
indeed.
Mr. Cassidy. Yes. Now, a couple things. I am approaching
this as a physician because some of this discussion--a woman
doesn't go blind from diabetes in pregnancy. The Renal-retinal
syndrome is something that develops over years and so it is not
something that would precipitously occur. And that is just one
example how as a physician I have kind of approached this. When
I read your testimony you quoted an article that you had
written so I pulled it up. I have great respect for your
writing. And one of the things you are talking about here is
medically indicated and you say a woman has a car wreck,
fractures her pelvis, loses the baby, would the hospital not be
paid for fixing the pelvis because the baby was lost. Now
frankly, that would most likely be to save the life of the
mother, but I had never heard of a hospital having a problem in
such a situation, a major motor vehicle accident. Have you?
Ms. Rosenbaum. Let me just be sure I am following your
question.
Mr. Cassidy. I am reading your paper here--I am sure you
are familiar with it. It is regarding the Stupak-Pitts
amendment. It is actually about current law and not about what
is proposed. And you say how will plan administrators
distinguish between the abortion procedure and the rest of the
treatment? Will the entire cost of a course of treatment--
example, surgery to repair a damaged pelvis following an
automobile accident--be denied if abortion is part of the
procedure. I have never heard of that happening. Have you?
Ms. Rosenbaum. Here is the problem. The analysis which I
reference and also gave sort of shorthand to in my oral
statement focuses on the administrative choices made by health
plans. When a particular treatment is excluded often they will
say that other treatments that are related to the treatment----
Mr. Cassidy. But see, for example, I am sure we have
experience with Medicaid managed care.
Ms. Rosenbaum. Yes, absolutely.
Mr. Cassidy. If a woman comes in with sepsis following a
whatever--an abortion that normally the Medicaid wouldn't pay
for, she paid cash and had a complication and came to the
hospital, I have never heard of a managed care plan not paying
for the rescue, if you will, of the botched procedure. Have
you?
Ms. Rosenbaum. What I am writing about and testifying about
is what is absolutely legally within the right of the----
Mr. Cassidy. So it is not anything that empirically
happened with a long experience with Medicaid managed care.
Rather it is a what if?
Ms. Rosenbaum. It is the legal implication of having an
exclusion. This is once you have a benefit exclusion then
other----
Mr. Cassidy. But we have benefit exclusions in Medicaid
managed care which is why I come back to that. Medicaid managed
care does not cover abortion.
Ms. Rosenbaum. Correct.
Mr. Cassidy. But as far as I know I have never heard of it
not paying for the rescue of somebody who has had a
complication following a cash paid abortion. Have you--again, I
just ask because I don't think you are fear mongering on
purpose, but frankly it has that effect because I have never
heard of that and that is as a practicing physician.
Ms. Rosenbaum. Well, I think the issue in analyzing a bill
like this is to identify for Members of Congress what the
potential implications are. Now you could address the issue----
Mr. Cassidy. Now I accept that. OK. So I think it is fair
to say it hasn't happened and it is just a question of----
Ms. Rosenbaum. No, we don't know, at least. There has been
no documentation.
Mr. Cassidy. I can promise that would hit the newspaper.
But that said, and again I was struck because I have seen
patients. Although I am a gastroenterologist. I know of such
patients. Secondly, the ERISA market--there seems to be some
concern you have that by doing this we are going to somehow
destroy the insurance market for non- federally somehow
connected plans. It is interesting that you suggest that a lot
of people are going to drop their current coverage to go on a
subsidized plan and I will note that we were assured that was
not going to happen. But nonetheless, as you note in your paper
we have a huge ERISA market. I mean, a huge 87 percent of the
people are covered by ERISA and most of those folks have
coverage. Maybe as a percentage it will decline but really in
absolute numbers it is huge. Are you saying that that will go
away?
Ms. Rosenbaum. No, no. The paper addresses what happens
when the same health benefit companies that sell products in,
let us say the exchange market, are also selling small group
products, employer products in the non-exchange market. A
company can only make so many variations on the product itself.
Mr. Cassidy. But we certainly know that they do make a lot
of product variations now. Now you mentioned, for example, that
there is dental and vision. We all know that and you say that
would be a smaller market. On the other hand I have no doubt
there is an enterprising insurance company out there that will
become the coverer for many other companies.
Ms. Rosenbaum. The problem with this particular market is
that if you follow both this bill and H.R. 3----
Mr. Cassidy. Now by the way, we are talking actually by--
this is about Stupak-Pitts.
Ms. Rosenbaum. Yes, yes, yes.
Mr. Cassidy. So you are describing now what would be the
effect of this addendum, if you will, but rather what is the
effect of the current Executive order as regards PPACA now.
Correct?
Ms. Rosenbaum. No, no, no. In fact, I would say this bill
would bring health reform into line with what originally was
Stupak-Pitts.
Mr. Cassidy. OK. So the original kind of thing that passed
by a huge bipartisan, this would bring it into align with where
that was?
Ms. Rosenbaum. This would substitute----
Mr. Cassidy. Yes.
Ms. Rosenbaum [continuing]. At least in part Stupak-Pitts
for what was----
Mr. Cassidy. They are clicking behind me. We are through.
Thank you very much.
Mr. Pitts. Gentleman's time is expired. Chair recognizes
the gentlelady from Wisconsin, Ms. Baldwin.
Ms. Baldwin. Thank you, Mr. Chairman. Before I begin I
would like to ask unanimous consent to submit for the record
the testimony of Dr. Douglas Laube who is the Board Chair of
Physicians for Reproductive Choice in Health.
Mr. Burgess. Mr. Chairman, could I ask to see that before
we have that unanimous----
Mr. Pitts. Could we request a copy of that?
Ms. Baldwin. Well certainly.
Mr. Burgess. While we are on the subject, can I see the
paper that the previous questioner was referring to? If I could
get a copy of that as well that would be great.
Mr. Pitts. No----
Mr. Burgess. Thanks. No rush. I just----
Mr. Pitts. All right, the gentlelady is recognized for 5
minutes.
Ms. Baldwin. And the result of my unanimous consent
request? Have I----
Mr. Burgess. Take a minute to read it. I don't mean to be
rude. I am going to read while you are talking but I can listen
while I read.
Ms. Baldwin. All right. Earlier I expressed my dismay that
our very first hearing of this subcommittee in this brand new
session of Congress wasn't focused on the issues that are most
important to my constituents. I would suggest all of our
constituents--that being jobs. Many facets of which would be
directly relevant to our subcommittee's jurisdiction. But
instead on a bill that rolls back the right of women to make
important life decisions. And I think that speaks volumes and I
wonder what else we will see on this issue in the weeks and
months to come. Will we see defunding of family planning and
access to contraception? Will we see revisiting of the rape and
incest exemptions? And on that topic, I am familiar with the
chairman's bill as introduced. I believe it is H.R. 358 and
another bill, H.R. 3. That one which is cosponsored by over
half of the Republican conference. In both of those bills there
is a redefinition of the rape exemption that would give
insurance companies and health care providers new authorities.
Perhaps you could even argue new responsibilities to decide if
a woman has been forcibly raped and the authority to deny care
to victims of incest. You know, it used to be that we told our
young daughters and sons no means no. But now apparently no
isn't sufficient. What happens if a rape victim is unconscious?
What about somebody who has been given the date rape drug as it
is known? Are these people no longer considered rape victims?
Now, thanks to Americans and particularly American women who
spoke out against these provisions, we are now considering a
discussion draft of the Chairman's bill without these
provisions. Although I don't have the discussion draft at my
desk. I don't know if I am alone, but am I----
Mr. Pitts. Where is it?
Ms. Baldwin. Were people provided with the discussion
draft, because I would like to certainly confirm that that
language has indeed been removed? But it doesn't appear to be
at our desks with our materials. In any event, let me move on.
We know that this language in this proposal is not new. During
the debate last year on the health care reform bill, this
language was proposed and ultimately again withdrawn. So I
guess, Professor Rosenbaum, I would like to explore the impact
of this proposed redefinition of rape and incest that was
included in the legislation H.R. 358, a variation of what we
are looking at today. Who would make these treatment and
coverage decisions for victims of rape and if this redefinition
were to occur how might it be applied in practice? It is deeply
troubling to me.
Ms. Rosenbaum. There would be--really two levels of
decisionmaking. First of course there would have to be a
structure by which the sellers of the products themselves could
certify that they were in compliance with the definitions. And
so in this case because we are talking about a tax advantage
plan definition the IRS would have to define these issues. But
then when it comes to individual claims, it would go through a
claims appeals process. So if you were a woman who claimed to
have had an abortion for a covered purpose, the plan might
review the claim and decide that the medical justification, the
supporting evidence was not strong enough and would have legal
authority of course to deny the claim for that purpose. So it
would be an evidentiary determination just like any evidentiary
determination. Then you would go through the appeals process.
Ms. Baldwin. What about at the treatment stage? Is there
any--what would come into play there in terms of what a young
victim of rape would have to share in terms of demonstrating
that she was forcibly raped?
Ms. Rosenbaum. If the standard is a forcible rape standard
then one could imagine everything from police reports which
sometimes don't exist in these cases because of fears about
coming forward. Other evidence, evidence of particularly brutal
attack, physical tearing, all of the medical, clinical, law
enforcement evidence that would surround presumably a forcible
rape would come into play. And the insurer would be labeled as
the bad guy but the insurer would be doing what it legally
needed to do in order to adhere to the federal exclusion.
Ms. Baldwin. Thank you and I would renew my unanimous
consent request.
Mr. Pitts. Chair thanks the lady. There is no objection so
with unanimous consent, so ordered.
Ms. Baldwin. Thank you.
Mr. Pitts. Chair thanks the lady and recognizes the
gentleman from Kentucky, Mr. Guthrie for 5 minutes.
Mr. Guthrie. Thank you, Mr. Chairman. My friend Mr. Cassidy
was talking about this--the paper, Ms. Rosenbaum that you had
and I guess what you were saying how is the physician going
to--if there is an abortion procedure, there is complication of
that and they are treated beyond that, how are they going to
disentangle what was abortion related and what wasn't. That was
the same question we had with insurance. If somebody goes into
the exchange and they receive a subsidy to go into the
exchange, whether they pay 80 percent, 50 percent, and some of
the argument that was made on the floor, I guess in the Senate
although we did pass Stupak-Pitts in the House, was how do you
know what portion of that premium is going to be for abortion?
How--what portion is going to be from the federal taxpayer? And
without being able to disentangle that we said well, you can't
disentangle it because it is all tied together. And therefore,
the intent is to ban this to keep with our idea that the
federal taxpayer shouldn't pay for people's abortions. And on
that with Mr. Johnson--and I am going to try to get this
quickly because I want to yield some time. With Chairman
Dingell, or Mr. Dingell you were talking about the coverage. So
even if you don't get 100 percent coverage in the high-risk
pool, if you get some percentage of coverage in the high-risk
pool or any exchange, if the exchange offers abortion coverage
and then there is no way to disentangle just what I was saying,
what is a federal dollar and what is a private dollar?
Mr. Johnson. Well, these are two different issues. I think
Congresswoman Schakowsky and I were talking past each other a
little bit. The high-risk pool program, yes, the client has to
pay a certain amount in. Those become federal funds. Those
become federal funds. That is why the secretary of HHS, on
their Web site, says it is 100 percent federally funded. The
state contributes nothing. The clients pay a certain fee just
like in Medicare, but those then become federal funds. The
notion that a federal agency can pay out of the treasury for
medical services, abortions, or any other and that that is the
use of private funds is really a hoax. And we saw an attempt
with the Capps amendment on a bill last year to make that claim
where the--under the public plan, the secretary of HHS would
have been paying for elective abortions out of the federal
treasury and they said but that was private funding of
abortion. That is a hoax and nobody would entertain it for a
moment if you were talking about some context other than
abortion.
Mr. Guthrie. I am going to yield the remainder of my time
to Mr. Burgess.
Mr. Burgess. I thank the gentleman for yielding. And in
fact, Mr. Johnson when we had that discussion on the Capps
amendment in the mark-up of the Patient Protection and
Affordable Care Act in July of 2009 the Democrats own counsel
characterized that as, he said it would be a sham if I recall
correctly. It was late at night and after a lot of discussion,
but I think many of us were startled when Mr. Barton asked the
question and again the Democratic Counsel said no, that would
be a sham.
Mr. Johnson. We cite in our testimony a host of authorities
on this that these are public funds, federal funds once they
are collected. The government collects money through diverse
means: taxes, user fees, these premiums, and so forth. They are
all federal funds once the government has them.
Mr. Burgess. On just a couple of things that have come up.
The issue of a pregnancy located in the fallopian tube--I
just--there would not be a situation arise where that would not
be the health of the mother invoked in treating that condition.
Mr. Johnson. Life of the mother.
Mr. Burgess. Life or health of the mother with--life of the
mother. Whether you use Methotrexate as a medical procedure or
a surgical procedure but that has to be treated and everyone
recognizes that. The paper that I asked permission to look at
before we accepted it in the record does go through a litany of
very hard rendering difficult situations. There is only one
that is referenced in here that really would fall outside the
emergency classification where it needed to be ten to two
whether it is a hospital that provides this service or not. The
doctor is obligated under EMTALA to provide that care,
stabilize, transfer to another facility if the condition
permits it, but only one of the six or seven cited here would
actually fall into the category of elective. And the one that
is elective, again, it is a tough story of someone with another
child who is ill and decides not to carry their pregnancy. But
that is hardly an emergency situation and one that can easily
be stabilized and a proper caregiver found. Now, the other
issue that is brought up in this paper is the issue about that
the requirement of a rider would be unworkable, but in fact
that is what insurance is. It is planning for the unplanned.
And it does not seem to me to be unreasonable to ask for that
to be one of the conditions. And again, the President is pretty
clear in his Executive order I think. So we are just--Mr.
Pitts, I congratulate you. You are trying to help the president
and there are a lot of people who would say that that is an
evidence of bipartisanship. So I welcome.
Mr. Pitts. The chair thanks the gentleman and recognizes
the gentleman from New York, Mr. Engel, for 5 minutes.
Mr. Engel. Thank you, thank you Mr. Chairman. Look, we are
all really beating around the bush here and when we are talking
about a right of a woman to choose or the right of abolishing
abortion in any circumstances. These are very heartfelt and
personal views and I don't denigrate anybody's view on this
issue. But I really am very much chagrined that first thing out
of the box in this Congress the majority is pushing forward on
wedge issues such as abortion when we should be doing things
like helping our economy, and getting people back to work, and
getting unemployment down. That is as far as I can see what the
election was about in November and it is very disconcerting to
see these wedge issues being pushed to the fore. Let me get
back to basics. Let me first ask Professor Rosenbaum because we
have been back and forth on this, aside from the narrow
exceptions of life, rape, and incest, does the Affordable Care
Act allow federal funding for abortion services?
Ms. Rosenbaum. It does not.
Mr. Engel. OK. So it is--your reading of it is a lot
different from some of the testimony we have been hearing?
Ms. Rosenbaum. I think--and every effort has been made to
clarify any circumstance in which there was any question. I can
find no evidence that anybody has not clarified that the same
standards that we know in Hyde apply under the Affordable Care
Act.
Mr. Engel. In your testimony you state that the Protect
Life Act will affect women's ability to find a health plan that
includes abortion and purchase it with her own funds. Can you
explain what that implication would mean for a woman's access
to health services?
Ms. Rosenbaum. The effect of the Protect Life Act would be
in my view given my familiarity with the way insurers behave in
a marketplace is that the market for the kind of coverage that
one would need to buy essentially totally outside of the tax
advantaged coverage just would never materialize because the
people who are going to get the benefit of the Affordable Care
Acts tax advantage system are individuals who don't have
disposable income. They are by definition without the means to
buy coverage. That is problem number one. Problem number two is
the problem that I alluded to in both the written testimony and
the oral statement namely it is very difficult to buy
supplemental coverage and have that supplement totally,
separately administered. Because the whole nature of a
supplement is that it works in tandem with the basic coverage.
Under the Protect Life Act the only way a supplement can be
offered is if it is offered entirely separately, administered
separately from the underlying coverage and is the example
actually that Mr. Cassidy provided before where you have a
terrible car accident and you have several things going on at
the same time: an injury and potentially an abortion. You could
easily end up in a situation where both--with the full coverage
has to work in tandem in order to work otherwise the supplement
and the primary just both deny it.
Mr. Engel. Well, I think that this is another attempt to
try to kill the Affordable Care Act and I am sorry that it
uses--this legislation uses low-income and middle-income women
as a political football. I just don't think it is right.
Professor Alvare, I want to ask you a question. You talked a
lot about the conscience clause and conscience protections for
hospitals and doctors. I actually do agree with you on a number
of things. I don't think that anybody who is opposed to
abortion should be forced to perform one. And I don't think
that hospitals that for moral or religious reasons don't
believe in it should be forced to perform it. That is their
conscience. You talked about the conscience of doctors or
hospitals. But what about the conscience of the woman who is
being affected? If in her conscience, if what she decides and
she has to make a gut-wrenching decision, or if the family has
to make a decision because of the woman's health why are we not
respecting her conscience? Why only the conscience of the
hospital or the doctor?
Ms. Alvare. Thank you, sir. Under your definition of that
being her conscience we do have over 1.2 million abortions a
year with a hugely disproportionate number among the women you
would consider to be vulnerable that we especially want to take
care of. And if you are saying that--which I would not agree
with--that abortion is part of that care, then I think you can
rest assured in a rather sad way that the most vulnerable women
are getting access to the most abortions. And the conscience
protection for them is Roe, Casey, Stenberg, Gonzales which
allows abortion on demand in the United States.
Mr. Engel. But you would eliminate that so where is----
Ms. Alvare. Absolutely.
Mr. Engel. Where is respect for her conscience?
Ms. Alvare. This bill does not eliminate that whatsoever
and I would also bring up which I should have before and I am
sorry the Church amendment which since 1973 has not only said
that employers can't discriminate against doctors who don't
want to do abortions, but also can't discriminate against
doctors who do. Now, they can't do them at a religious or
morally opposed hospital, but they are protected by federal law
from--for doing them.
Mr. Engel. But you would eliminate it given your druthers,
would you not?
Ms. Alvare. Would eliminate?
Mr. Engel. Abortion under any circumstances. You said----
Ms. Alvare. That is absolutely true, but this Act doesn't
agree with what I say.
Mr. Engel. Even with rape and incest you would say a woman
should be forced to go through a pregnancy if she was raped or
if there was incest.
Ms. Alvare. I would never punish the child for what other
people did. But this bill doesn't come close to reducing
abortion in the United States, sadly enough, unless it changes
the federal bully pulpit to say abortion is not a preferred
service in a way that I hope it will.
Mr. Engel. Mr. Chairman, before I relinquish, Mr. Towns
before he left asked me if I would submit for him for the
record--unanimous consent to submit testimony from the National
Asian Pacific Women's Forum and the Center for Reproductive
Rights. I have it here. I am doing it on behalf of Mr. Towns.
Mr. Pitts. Good enough. Could--we haven't seen that. Take a
look at that.
Mr. Engel. Yes. Thank you.
Mr. Pitts. Chair thanks the gentleman and recognizes the
gentleman from New York, Mr. Weiner for 5 minutes.
Mr. Weiner. Thank you, Mr. Chairman. Let us face it. There
is a broad gulf. Mr. Engel is right on people's views of
abortion and the Hyde amendment is one way to come to a
conclusion on it. I don't believe that someone should be denied
a medical procedure because of their income. I don't believe
that someone who is more well-to-do who gets enormous tax
breaks from the country that we don't attach to that tax break
an agreement that they won't get a certain medical procedure. I
don't believe we should distribute health care that way. I
think it is inhumane and immoral. We have this Hyde amendment
that is supposed to try to strike some kind of a middle ground
that I am not completely happy with and members of the panel
are not completely happy with. But let us agree on what we are
saying here. We are not codifying the Hyde amendment. The Hyde
amendment says that there is an exemption from the restriction
of an abortion if a pregnancy is the result of a rape or an act
of rape or incest. The bill that the sponsor would have liked
to have us pass and probably will still succeed, a pregnancy
occurred because a pregnant female is the result of a forcible
rape changing the definition of rape because apparently some
rape is more desirable in the eyes of the maker of the bill
than others. And that includes a minor in active incest. So it
can't be someone 19 is that age. So it is not at any effort
here to codify the Hyde amendment. This is in an effort to
expand the Hyde amendment. And well, frankly, someone caught
him this time but they will work it in. They are the majority
party. They can work this in at rules committee. We can count
on seeing this language again expanding the Hyde amendment.
Don't let anyone who supports this bill ever say to you I am
for less government regulation. There is too much government
regulation. You have got to be kidding. You can't vote for this
thing and then say you are for less government regulations the
mother of all government regulations. This is the regulation of
an individual woman in a room with her doctor and Congressman
Pitts apparently. I can't think of a bigger government
regulation. So let us agree that in one hearing last week where
we are against government regulation and another one this week
we are for all kinds of government regulation. If you don't
think it is a government regulation ask a doctor who has got to
try to navigate this hearing. God bless the three of you, but
it is complicated stuff because you are trying to shoehorn
government into what is essentially a basic relationship that
revolves around health care. It doesn't revolve around which
funding stream is coming--of course this is complicated. Of
course you guys have different view of this. And if you are a
physician and I--you can't swing a dead cat around here without
signing someone--well, I am speaking from a level of
experience. I am a doctor, therefore I can tell you. I mean,
stop that already. The bottom line about this is you are not
any particular doctor for a particular client. I don't want
anyone who is a doctor here in my operating room. You can just
keep with your Congressman stick. It is more--that is better. I
mean, what this is about is a fundamental philosophical
agreement. And that is that if you are conservative and you
believe in smaller, less intrusive government you have got to
take a wild, wild, philosophical bank shot to get back into
supporting this bill. I don't know how you do it. I really
don't know how you can ever say you are conservative believing
you should have this much of government involvement in a
medical decision in a conversation. And I do have to say this.
I know we read the Constitution that first day we were here and
I am glad we did. You have to also basically say if you support
this you don't believe in a right to privacy for at least one
half of the country. And that is the bottom line. Now some
people don't. Some people believe to this day and you know the
right to privacy as my lawyer friends or people who were
lawyers and portraying lawyers the fact is that there is--does
and there is not explicit right to privacy. But I think most
Americans of all political stripes believe there is a basic
right to privacy. Is there anything more basic, more basic than
your body? Is there anything more basic privacy there? Well,
not according to--not according to many people. And that is the
conversation here. And if you are on the side of the--saying
you know what? I think government should have a limit on where
they go. I think there should be a limit beyond which they
should not pass, this means you do not support this bill bottom
line. If you believe there is no limit, you can go anywhere,
you can get into any personal relationship the government wants
to get involved in they can we have got a bill for you and we
are going to have others. But I have to tell you something. I
would say to my colleagues and friends that if you are going to
wring your hands and gaze at your naval about how we reduce
regulation in this country and how we get government out of
business, try being in the business of health care watching
this debate. Try dealing with an emergency room situation where
a woman is coming in there and the doctor is saying you know
what? I believe this is a medically necessary procedure. I want
to do it. But wait a minute. I got to go through this first. I
got to go--and let me--and someone get CSPAN 9 tapes back for
me so I can see if I am allowed to do it. There is too much
government regulation in this. And I think the best thing to do
is we should say let doctors and their patients make these
decisions. And as far as I remember listening to health care
debate, so did my Republican friends way back when last week.
Mr. Pitts. Chair thanks gentleman. On the issue of the
unanimous consent request, without objection.
[The information appears at the conclusion of the hearing.]
Mr. Burgess. Mr. Chairman, was there a question in that
soliloquy? Should we let our panel respond?
Mr. Pitts. Would one of the panelists like to respond to
any of them? Mr. Johnson?
Mr. Johnson. I think you are forgetting someone, Mr.
Weiner. What about this little girl here? This is from the
Grand Jury Report. You talk about the privacy of the body? What
about her body? You are forgetting someone. There is another
human individual, a member of the human family who is involved
here. That is why it is different than----
Mr. Weiner. When you say another, Mr. Johnson, are you
stipulating that the woman has rights here?
Mr. Johnson. Of course the woman has rights including the
right to life. But he unborn child is also a member of the
human family.
Mr. Weiner. And Mr. Johnson, do you think that a bunch of
members of Congress should make that determination where that
line is?
Mr. Johnson. We think that the Congress makes laws for all
members of the human family.
Mr. Weiner. Well that is a yes. You think 435 fairly well-
to-do, mostly white men should make that decision?
Mr. Johnson. I think the elected representative of the
American people should establish----
Mr. Weiner. Should make decisions for that woman and child?
Mr. Johnson. Can I finish my answers may I not?
Mr. Weiner. Well, it doesn't sound terribly enticing, no.
Mr. Pitts. Chair thanks gentleman. Chair recognizes the
gentlelady from Colorado, Ms. DeGette for 5 minutes.
Ms. DeGette. Thank you so much, Mr. Chairman. I have quite
a number of questions for all the witnesses so if you can try
to keep your answers short I would appreciate it. Professor
Rosenbaum, you have written extensively on issues around
insurance law as part of your academic career. Correct?
Ms. Rosenbaum. I have.
Ms. DeGette. Now, right now under current law--is your
microphone on? We are having----
Ms. Rosenbaum. It is.
Ms. DeGette. Under current law right now employers can--
many employers can take tax credits for offering their
employees insurance plans. Correct?
Ms. Rosenbaum. It is deductible.
Ms. DeGette. And so they are getting a federal benefit for
offering their employees insurance. Correct?
Ms. Rosenbaum. Indeed.
Ms. DeGette. Right now?
Ms. Rosenbaum. Yes.
Ms. DeGette. And the insurance plans that many employers
offer to their employees include a full range of reproductive
services including abortion coverage. Correct?
Ms. Rosenbaum. That is correct.
Ms. DeGette. And the Hyde amendment as it is currently
written even in the Affordable Care Act and the other bills
does not preclude people from getting tax credits for offering
insurance plans that offer a full range of reproductive
services?
Ms. Rosenbaum. Tax Advantage Plans are outside the Hyde
amendment.
Ms. DeGette. Now, in addition, most insurance policies
don't break out abortion services. They just say any medically
necessary services. So if it is legal and it is necessary then
the insurance will cover it. Correct?
Ms. Rosenbaum. Correct.
Ms. DeGette. Now, Professor, the Hyde amendment says that
no federal funds shall be used to pay for abortions with the
exception of rape, incest, and the life of the mother. Correct?
Ms. DeGette. And that does not include indirect
expenditures like tax credits or tax deductions. Is that right?
Ms. Rosenbaum. It does not.
Ms. DeGette. So under this legislation, this Pitts bill,
for the exchanges and then under the Smith bill which is also
being examined what it would do, it would go far beyond the
established law of current law which says no direct federal
funds shall be used for abortion. And it would then define a
whole different set of benefits that people get in the way of
tax relief as somehow being federal funding. Is that correct?
Ms. Rosenbaum. Correct.
Ms. DeGette. And so is it your opinion, Professor, that
what that would do in essence would be to either if employers
wanted to offer people plans in the exchange that offered
abortion coverage they couldn't get the tax credits. Right?
Ms. Rosenbaum. Correct.
Ms. DeGette. So then those employers would be paying higher
taxes. Wouldn't they? Because they wouldn't get the----
Ms. Rosenbaum. They offered a product that was not tax
advantaged anymore.
Ms. DeGette. Right. So basically employers would be forced
to purchase plans that didn't offer a legal medical service
that they are offering now in order to get federal tax relief.
Right?
Ms. Rosenbaum. The other way of saying it is that plans--
that companies would stop selling products that offered----
Ms. DeGette. Right. And so that is far beyond what the Hyde
amendment says.
Ms. Rosenbaum. Yes.
Ms. DeGette. OK. Than you very much. Now, Professor Alvare,
I wanted to ask you a question following up on what Mr. Dingell
and several other people were asking you. Section 1303 of the
Affordable Care Act talks about the treatment of abortion under
the Act. But under the Pitts bill, this bill that we are
talking about today, the words regarding abortion in Section
1303 are struck and instead the language that says protecting
conscience rights is inserted. Correct?
Ms. Alvare. That is correct and----
Ms. DeGette. Is it your understanding as sort of an
ethicist that conscience rights could be talking about more
issues other than abortion? For example, Catholic providers
conscience rights around birth control and family planning and
contraception--it could be interpreted that way couldn't it?
Ms. Alvare. I don't think so, Congresswoman.
Ms. DeGette. Why not?
Ms. Alvare. Because the purpose of that was to strike a
heading that was not properly characterizing what went before
it. And at the same time, to extend non-preemption to State
laws not only regarding abortion and abortion coverage but
conscience.
Ms. DeGette. So OK. So I am sorry, you can supplement your
answer. I apologize. So you don't think so?
Ms. Alavare. That is all of it.
Ms. DeGette. OK. Mr. Johnson, I just have a couple
questions for you. Now, you have been the head of the National
Right to Life Committee since 1981. Correct?
Mr. Johnson. No, I am not the head of the National Right to
Life Committee. I am the legislator.
Ms. DeGette. OK. I am sorry. You are the legislative
director. Thank you for clarifying that. Do you support a
constitutional amendment to overturn Roe v. Wade? Yes or no?
Mr. Johnson. Our organization has supported constitutional
amendment----
Ms. DeGette. Do you support a constitutional amendment to
overturn Roe v. Wade?
Mr. Johnson. Properly drafted, yes.
Ms. DeGette. Yes or no?
Mr. Johnson. I said if properly drafted.
Ms. DeGette. Yes or no?
Mr. Johnson. There have been many amendments and some we
support. Some we don't.
Ms. DeGette. Do you support--OK. But you would overturn Roe
v. Wade, right?
Mr. Johnson. We would overturn Roe v. Wade.
Ms. DeGette. Now, do you agree with Professor Alvare that
abortion should be outlawed. Correct?
Mr. Johnson. The position of the National Right to Life
Committee----
Ms. DeGette. No, what is your position, sir?
Mr. Johnson. No, I represent the National Right to Life
Committee.
Ms. DeGette. So you are not going to answer that question?
Would that be correct?
Mr. Johnson. I am going to answer it. I am just testifying
on the behalf of the National Right to Life Committee.
Ms. DeGette. OK. So what is their position? Do they support
banning abortion?
Mr. Johnson. The exception that should be allowed is to
save the life of the mother if there is indeed such a case.
Which you have heard disputed.
Ms. DeGette. OK. So you would not support an exemption for
rape. Correct?
Mr. Johnson. That is correct. Our policy practice would not
be----
Ms. DeGette. And you would not support--you as an
organization would not support an exemption for incest. Is that
correct?
Mr. Johnson. That is correct.
Ms. DeGette. Thank you very much, Mr. Chairman. I
appreciate your comity in letting me participate.
Mr. Pitts. Chair thanks the lady and recognize the
gentleman from Ohio, Mr. Latta for 4 minutes.
Mr. Latta. Thank you very much, Mr. Chairman. At this time
I would like to yield 5 minutes to Dr. Burgess.
Mr. Burgess. I thank the gentleman for yielding. Let us
just come back to the issue we are here discussing today and it
is not overturning Roe v. Wade. It is dealing with the
aftermath that we were dealt in a very poorly drafted piece of
legislation that was signed into law on March 23 of last year.
And because of some of the unfinished business, the way that
was pushed through so late in the night we are here today to
make certain that we all understand what the parameters are,
what is required of each of us, and what the Federal Government
is going to be required to cover and reimburse for. So I do
think that while I might agree with Mr. Weiner and it hurts me
to say this, but I might agree with Mr. Weiner on some points.
And in fact with no thought to my personal safety I would go
into an operating room if it were required to save his life
even though I am licensed and uninsured. But at the same time
what we are talking about here today is the use of federal
funds, taxpayer dollars to fund this procedure. And there have
been correctly some parameters and boundaries set around this
since 1976. And we are here to help the President see the
execution of his Executive order and make certain that the
spirit of it is upheld not just this year, but next year and
the year after. And even if there is a different president in
the White House and a different set of Executive orders that
the spirit of this Executive order will continue to be carried
out. Now, let me just ask a general question, but probably it
goes to Mr. Johnson. Does anyone really want to force someone
to perform a procedure of termination of pregnancy if it is
against their will to do so?
Mr. Johnson. Dr. Burgess, I have heard remarks from both
sides here today about no one would want to do that. And I can
only implore the members of the Committee who really want to
explore that issue to read this document: Health Care Refusals.
It is put out by the National Health Law Program, 2010.
Professor Rosenbaum was on the advisory committee which
according to the acknowledgments played a very active role. It
is an amazing document. I just read it myself the other day for
the first time. It is about 100 pages. And it is relentless in
attacking all forms of conscience laws. They absolutely argue
that it is an obligation that should be enforced both on
institutions and individuals to perform abortions to provide
abortions. This should be enforced through law, through
malpractice law, through licensure requirements, and through
diverse other means. There are even attacks on physicians who
simply share their personal views about the sanctity of human
life with their patients. That is deemed to be a breech of the
ethics as defined by these people. The ACLU has a very active
project as Mr. Dorflinger from the Catholic Bishops Conference
testified before the other committee yesterday to try to compel
Catholic hospitals to either get with the program on abortion
or get out of town. They do want to basically drive people out
of health care if you will not get with their program and
ideology of collaborating and actively participating in killing
unborn members of the species Homo sapiens. And if you think I
am engaged in hyperbole, I implore you to read this report.
Mr. Burgess. I thank you for bringing it to our attention.
Certainly, Mr. Chairman, if the committee could be provided a
copy of that I for one would be happy to look at it. Now, if--
Mr. Johnson, if this bill does not pass--well, let me just ask
you a question. Do you really think that hospitals are going to
not allow emergency treatment for women who show up in the
emergency room who are suffering a complication? And we have
heard that professed by the other side but is that the intent
of this legislation?
Mr. Johnson. I believe they are going to continue to comply
with EMTALA and just with good medical practice which is to
recognize that they have two patients and the law could not be
more explicit. Professor Alvare read it earlier. It says you
seek to help to save both the mother and her unborn child. It
uses that term unborn child. And I don't see how any fair
reading of that law could mean that that is a mandate to take
the unborn child out in pieces. OK?
Mr. Burgess. And I appreciate your answer. Just because I
am about to run out of time, again, I want to stress that this
law is to put the boundaries in place that the President asked
for in the Executive order. This hearing, this legislation is
not about overturning Roe v. Wade. It is not about doing
anything other than helping the President accomplish his goal
that taxpayer funding will not be used for the performance of
elective termination of pregnancy. Thank you, Mr. Chairman. I
will yield back my--I will yield back to the gentleman from
Ohio.
Mr. Pitts. Chair thanks the gentleman. Every member was
emailed with the hearing notice a copy of the discussion draft.
If any of you did not have a copy we will be happy to provide
it for you. That in conclusion I would like to thank all of the
witnesses and all of the members that participated in today's
hearing. I remind the members that they have 10 business days
to submit questions for the record, and I ask the witnesses all
agree to respond promptly to those questions. Again, I would
like to thank Mr. Pallone, all the members for the civil tone
of the hearing on such a controversial issue. The subcommittee
hearing is adjourned.
[Whereupon, at 4:20 p.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
Prepared Statement of Hon. Joe Barton
Thank you Chairman for holding this important hearing. As
ChairmanEmeritus, I stand with Chairman Upton and Subcommittee
Chairman Pitts in support of legislation to prevent federal
funding for abortion or abortion coverage under the Patient
Protection and Affordable Care Act (PPACA).
It has been 38 years since the United States Supreme Court,
in Roe v. Wade, determined that the U.S. Constitution protects
a woman's right to terminate her pregnancy. Three years after
this legalization of abortion, the Supreme Court, in 3 related
rulings, determined that states have neither a statutory or
moral constitutional obligation to fund elective abortions or
provide access to public facilities for such abortions \i\. In
Harris v. McRae, the Court also indicated that there is no
statutory or constitutional obligation of the states or the
federal government to fund necessary abortions.
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\i\ (Beal v. Doe, 432 U.S. 438 [1977], Maher v. Roe, 432 U.S. 464
[1977]; and Poelker v. Doe, 432 U.S. 519 [1977])
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In the 111th Congress, during the debate of the various
health care reform bills, public funding for abortions and the
Hyde Amendment were hotly debated and discussed. Republicans
were firmly told that federal dollars would not be used H.R.
3962, the Affordable Health Care for America Act, was to
include the Stupak-Pitts Amendment which preserved the Hyde
Amendment. The Patient Protection and Affordable Care Act,
which is now law, does not include the Hyde Amendment. In fact,
all the Patient Protection and Affordable Care Act requires is
that at least one plan not cover abortions. The language
requires that those who are enrolled in a plan that covers
abortion make separate payments into an account that will be
used for abortions, therefore creating public and ``private''
funds. However, just because the funds are put into another
account does not mean they are not federal dollars subsidizing
abortions. Regardless of what account these federal dollars to
put into, they're still taxpayer dollars being used to pay for
abortions. PPACA also includes language which could allow the
Health Resources and Services Administration (HRSA) to define
abortion as ``preventative care.''
While the House has voted to repeal PPACA, in its entirety,
the Senate voted against a full repeal. So, now we are left
with the task of repealing the sections of PPACA that we can
and reforming others. I think the issue of abortion funding is
one of the top priorities for repealing and reforming. American
taxpayers should not be forced to fund elective abortions, nor
should doctors who have moral or religious objections be forced
to perform abortions. I supported the Stupak-Pitts Amendment; I
have also cosponsored the Protect Life Act.
I look forward to hearing from our witnesses and working to
repeal these provisions of PPACA.
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Prepared Statement of Hon. Marsha Blackburn
Mr. Chairman, I would like to thank you for holding this
hearing and I welcome our witnesses. I am pleased that this
Subcommittee will examine federal funding of abortion services
as provided by the Patient Protection and Affordable Care Act
(PPACA).
I have long held the belief that unborn lives should be
protected, and I do not condone the use of taxpayer dollars to
support elective abortions. Furthermore, Congress should
respect the right of conscience and not force individuals or
organizations to violate their personal and moral convictions
by having to support abortion services for fear of being
penalized by federal or state governments.
The right of conscience has long been protected in this
country under the Hyde amendment and is a tradition that this
Committee should seek to restore to all health care
professionals. Some may argue that the Hyde amendment is no
longer necessary after President Obama signed an Executive
Order banning the use of federal funding of abortions. However,
as you will see in my questioning, even former White House
Chief of Staff Rahm Emanuel has confirmed that this Executive
Order will not prevent taxpayers from funding abortions in
PPACA since the Executive Order does not ``carry the force of
law.''
Mr. Chairman, I thank you for bringing this issue before
the Committee today and I urge my colleagues to join me in
ensuring that taxpayers do not fund abortion and the right of
conscience is restored.
Thank you Mr. Chairman and I yield back the balance of my
time.
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Prepared Statement of Hon. Edolphus Towns
Mr. Chairman, Ranking Member Pallone, and distinguished
colleagues--thank you for being here today to discuss Chairman
Pitts' proposal to amend the Affordable Care Act regarding
abortion coverage.
The proposed bill, the Protect Life Act, claims to
unambiguously state that no federal funds will be used to pay
for abortion services. However, under current law, this is
already the case. It is already illegal to pay for elective or
``therapeutic'' abortion using federal funds. This Act does
nothing to change that fact.
What the Act does do is impose unprecedented limitations on
abortion coverage, while restricting access to abortion
services for all women - not just those who purchase coverage
through a state health-insurance exchange. It makes it
virtually impossible for insurance companies in state health-
insurance exchanges to offer abortion coverage, even to women
paying entirely with their own money, and would forbid abortion
coverage for millions of middle-and low-income women who will
receive partial subsidies to purchase insurance.
In addition, the bill penalizes private insurers who offer
comprehensive insurance products for sale in multiple states.
It imposes crippling administrative burdens on plans that
choose to cover abortion care. Namely, under this Act, if an
insurance company offers a plan with abortion coverage, it must
also offer a second, identical plan without abortion coverage,
greatly increasing an insurer's administrative overhead. The
likely outcome under this Act, is that a private insurance
company would simply choose to not offer any health plans that
cover abortion services.
Most importantly, the bill expands federal conscience
protections, namely by overriding critical federal protections
provided in the Emergency Medical Treatment and Labor Act
(EMTALA). These protections were written with women in mind,
and require that all patients, regardless of ability to pay, be
provided life-saving, stabilizing treatment when they arrive at
an emergency room. In the event that an abortion is medically
necessary to save the mother's life, one will be performed in
this narrow circumstance.
Overriding EMTALA in the name of ``conscience'' is a very
dangerous precedent. The Protect Life Act would effectively
change current federal law to allow hospitals to refuse
treatment to a woman. Furthermore, it would allow, under the
guise of ``conscience'' a hospital to refuse to refer a woman
to another facility that would be able to save her life.
I am not against ``conscience'' laws. I am, however,
against the use of these laws to allow doctors to watch their
patients die.
I have serious concerns with this bill. I hope that Members
on both sides of the aisle can work together, to ensure access
to quality care for all.
Thank you, Mr. Chairman. I yield the balance of my time.
----------
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