In a brilliant job of legislative maneuvering, Democrats have finally found a way to end the strict ban on use of public funds for abortion in spite of the Hyde Amendment. The effort was coordinated through Nancy Pelosi’s office with full knowledge of Obama and passive acceptance by Reid, and implemented by Henry Waxman in the House and Debbie Stabinow in the Senate. Thanks to their skill, American taxpayers will now have access to constitutionally protected health care services when those services are paid for by American taxpayer dollars.
Before 1976, poor women in need of an abortion could get one covered under Medicaid. Since then the law has forbidden use of taxpayer dollars for abortions through an amendment, technically a “rider” commonly referred to by the name of its original author, the notorious philanderer and hypocrite Henry Hyde. The Hyde rider is voted on annually, as part of the appropriations bill for Labor and Health and Human Services. Since most federal funding for health care to the poor flows through that appropriations bill, The Hyde Amendment closes off nearly all such federal funds.
But the Hyde Amendment only applies to that single appropriations funding pathway, and therein lays its weakness. The new health care bill sets up a separate funding pathway for what are called Community Health Centers (CHCs), which provide health care services to poor women and were formerly funded through the HHS appropriation. That separation of funding means they are no longer going to be restricted in their range of services by Hyde.
Currently, CHCs do not provide abortion services. But they should, and they most certainly will. The statute law that established them mandates that they deliver all “required primary health care services” which are defined as including “health services related to” “obstetrics or gynecology that are furnished by a physician.” Well-established federal court precedents provide that any statute mandating such “health services” coverage must include abortion unless it is explicitly forbidden by other law. CHCs were so forbidden under standard HHS appropriations because of Hyde, but with independent funding that is no longer the case.
What the Stupack amendment would have done is applied Hyde language to the new health care entities, including CHCs, but that language was not in the Senate bill or in the reconciliation sidecar. What opponents of constitutionally protected abortion rights got instead was chump-change $50 million a year for useless abstinence education and the offer of an executive order from President Obama saying that no federal funds should be used for abortion. But what Stupack and his buddies didn’t realize, because they aren’t really very smart, is that an executive order has no force of law and cannot be used to override a statute.
When push comes to shove, and it will, under the law CHCs are now required by statute to provide abortion coverage on demand, and that executive order to the contrary is not worth the paper it is written on. Stupack and his allies got sold a bill of goods, by the much smarter team of Pelosi and Obama. Well done, I say.
The Reactionary Right has just now realized what transpired, and they are of course mightily displeased. They’d like to allege that abortion coverage is about to happen, but that just isn’t supported by fact; Democrats are smart enough to let that dog lie until after the 2010 election. Instead they will be crying about federal funding of contraceptives and try somehow to equate the two concepts; John Boehner has already started. It is a weak argument, not to mention contradictory – what better way is there to reduce abortions than use of contraceptives?
Score one for our side, for equitable application of the law and preservation of constitutional liberty, and for the inalienable right of women to exclusively exercise control over their own bodies.