Tuesday, March 23, 2010, 8:00 AM
Matthew Lee Anderson

Over the past 72 hours, I’ve been engaged in various debates about the contents of our newly minted-health care system and the effects of the executive order that was issued to appease Bart Stupak and his ilk.

The central question in the debate is whether the bill will–does–fund abortions, and whether the Executive Order that Obama has promised to sign is enough to prevent that from happening.

It’s my suspicion that significant confusion remains on the issue. So here’s my attempt to shed light on the question of abortion in the Senate bill.

But let’s do this Q&A style.  Because that’ll be more fun.

Did the Senate health care bill, which was the bill under consideration, cover abortions initially?

Well, yes.  The bill establishes some $9-11 billion in funding for “Community Health Centers.” Robert Destro, a professor at Catholic University, writes:

CHCs and other federally funded primary health care providers such as migrant, tribal, rural, and public housing health centers are required by law to provide “comprehensive” primary care services. The statutory term “comprehensive health care services” is broad enough to include reproductive health services, family planning services, and gynecology services. And the courts are unanimous in holding that – in the absence of the Hyde Amendment – this statutory term necessarily includes federal funding for elective abortions.

The Court decision to note here is Beal v. Doe. While these CHC’s don’t currently perform abortions, that’s largely because their money has come from appropriations bills subject to the Hyde amendment, which prohibits abortion funding. But $9 billion is quite a bit of money, and it’s slated to go into a new “Community Health Center Fund,” not be intermingled with all the other monies.

But isn’t this bill covered by the Hyde Amendment, which prevents federal funding for abortions?

If it was, what is all the wrangling about? You could be assured that Stupak wouldn’t have held out for months for redundant language in the bill. But as John McCormack (an invaluable source) points out:

But the Hyde amendment does not say that “none of the funds channeled through HHS” may pay for elective abortions; it says “none of the funds appropriated by this act” may pay for elective abortions. A Hyde-like amendment needs to be included in each different act authorizing public health programs, or the programs will end up paying for abortions, just as Indian Health Services did long after the Hyde amendment was on the books.

In other words, no. The bill isn’t subject to the Hyde amendment.

So Stupak solved this with the Executive Order, right?

If you want to think that, you go ahead. But you’ll be lonely. No one, Left or Right, agrees with you. Including Bart Stupak.

But if you’re still not convinced, there are three problems with it:

1)  It’s not clear that the language actually adds anything to the bill itself. Ezra Klein (a lefty commentator) thinks that it essentially promises to enforce the bill…as it’s written. Which is a pretty plausible reading of it.

2)  While executive orders may have the force of law, they cannot alter the laws on the books.

3)  Again, given Beal v. Doe, the federal government is 0bligated to provide abortions as a part of comprehensive health services in the absence of laws prohibiting it. Given that the Executive Order is not in fact the law, a court challenge will have to nullify the Executive Order in favor of the bill as its written.  And if you don’t expect that court challenge to come quickly after the appropriations are received, you’re dreaming.

Why did Stupak cave, then?

Apparently, it was the plan all along.

Did Stupak get anything for it?

Nope. Except a nationalized race in November. At time of writing, his opponent has some 17,000 facebook fans. It had 100 yesterday morning.

At least Sir Richard got Wales.

And pro-lifers?

They didn’t get much either. As I’ve argued, the bill as it is funds abortions.

Which is why it’s so disappointing to hear facile Christian endorsements of this bill without a single acknowledgement that we have increased abortion funding significantly, overnight. Endorsing the bill without repudiating not what might be pragmatically or economically inefficient, but what is morally wrong, is simply to turn a blind eye to the substance and effect of the legislation.

And as much as we want health-care for all—and health care for all is a good—it is deeply inconsistent to claim a pro-life ethic while endorsing a bill without qualification that directly funds the intentional killing of human persons.

Can we be done talking about this now?

Yes. I’ve written on this more in the past two weeks here than I have in five years combined. So I don’t write about this all the time. But it’s worth saying that this issue isn’t going away in debates about health care. And to make the point, I yield the final word to Phillip Klein:

And speaking of abortion, it’s fitting that in the final hours, the outcome of the vote hinged on the issue. While many saw abortion as tangentially related to the health care debate, in reality the dispute is central to it, and a harbinger of things to come.

The expansion of government’s role in health care will elevate the importance of social issues and trigger contentious battles in the future over the government’s role in personal decisions. Given that abortion is a legal procedure in a free market, government cannot restrict private policies from covering it. But once ostensibly private policies are regulated by the federal government and subsidized with tax dollars, Washington has a say in the matter.

While the year-long debate over whether this particular legislation should pass this particular Congress has just ended, the broader debate over the future of America’s health care system has only begun.