New health insurance reform law effectively ends Hyde Amendment abortion ban

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.

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29 responses to “New health insurance reform law effectively ends Hyde Amendment abortion ban

  1. not that i don’t trust you or anything, but is anybody besides you and some lying republicans promulgating this interpretation of the new law?

    • grahamfirchlis

      I haven’t had time to track the opinions of “anybody beside” me, so just don’t know. I read Boehner’s lament, poked around a little and this makes perfect sense to me. The truth of the facts is inescapable. The new funding mechanism ensures that family planning – and all that entails – will be provided through a funding source that does not fall under Hyde.

      The rub is of course that Hyde is not the only place where specific laws ban use of federal taxpayer funds for abortion. The same restrictions apply through seperate laws to Indian Health, federal prisoners, and the military, so push come to shove it may well be that another law will do the same for CHCs. But not, I think, if Pelosi has any say; she’s the one who let Stupack through expecting to gut it in conference and she did that in the end, even though there never was a conference. She won’t give back on this without a total war.

      I know that Pelosi has chaffed under Hyde for forever, as have many others in Congress, but the votes are always there to keep passing the damn thing. This is an elegant way to effectively force the issue again. Whther it will stand remains to be seen, and I wouldn’t count on it, but if the Republicans want to make an issue of it they’ll have to frame it under the broader categorization that includes birth control and that makes them look like idiots.

      Net, I think it is a good thing and a clever tactic. What the true intent of anyone is, I can never anticipate.

  2. blacksheepone

    Hipparchia —
    This is a great question.
    I live in a town where Planned Parenthood does not provide abortion services (they do ob/gyn functions, but their providers are not physicians, they’re nurse practitioners).
    We have two CHCs (one run by the health sciences center of my alma mater, and named for a long-time, staunchly pro-life, Texas lege member for my hometown).
    If the CHC is going to be *able* to provide abortion services now, I wonder if our TEA POTTY preachers will quit putting up posters of the Planned Parenthood staff with gunsights drawn around their photos?

    Please, Ceiling Cat, FSM, and all the Gods …
    make it so.

    More rights for women.

    Better healthcare for all!!!

    (Hell, I’m a Democrat. I’ll take my victories thru the back door or barracks lawyering either one.)

    • grahamfirchlis

      Expect this to require lawsuit or two, but those will assuredly be forthcoming. Unless the federal courts are willing to overturn Roe and a half-dozen other precedents, the way statute law reads the CHCs will not just be “able” but will be required to provide abortion on demand, either through existing staff or by referral.

      This Great Conversation has, I believe, been taken to a new level and I look forward to seeing how it all plays out. Of course, I could be wrong; I am not a lawyer nor did I did not sleep in a Holiday Inn last night. Eventually the actual lawyers like Marcy Wheeler will weigh in, and if they say not then I’ll recant. Until then I’m having a happy moment, and I won’t let anyone take that away without cause.

      • far be it from me to evict you from your happy place.

        i remain pessimistic on this until i see something ironclad.

    • back door victories and barracks lawyering are fine by me too, but i do need to see them happening. i am not getting my hopes on this, only to have them dashed yet again.

  3. Pat Santavenere

    Why is the author so excited about protecting the constitutional liberty (which does not actually exist) to kill one’s own children? Are there any constitutional liberties available for the unborn?

    • grahamfirchlis

      “The author” has a name, Pat, being an independently functioning creature and not dependent as is an organ on the systemic support of the whole body. One should expect that those so determined to “respect” the “unborn” would also show a little for the “already-born.”

      Why are you so excited by the idea of protecting formless unconscious blobs of protoplasm at the risk of the health and well-being of an actual functional independent human being? See, it is easy to form an indictment when starting from bias; much more difficult to do so when taking into account all available information.

      We are nothing as human beings if we do not have control over our own bodies, and that is what the very real, actually does exist constitutional right to obtain an abortion protects. I understand that there is another side to that very argument, regarding the question of rights for the, as you say, “unborn.”

      I think that is a very interesting question, one for which I think there is compelling evidence in many directions along with a great deal of ignorance we would do well to enlighten. I hope you will return, and we can explore together what is a very murky and controversial topic. Our differences may be much smaller than you perceive.

      For now I am content with the status quo regarding the relative balance of rights, that being the greater right exists initially for the woman and only becomes qualified as the viability – the power to exist independently – manifests in the fetus. Should some evidence appear that shifts our current knowledge about the beginnings of conscious self-awareness and the existence of an independent personality, I am open to changing my mind.

      By all means, do come back and try to persuade me – so long as you remain open to suasion yourself. I’m interested in spirited dialogue, but not in a simple exchange of talking points.

      And truly, thanks for stopping by and commenting; the effort is much appreciated.

    • … protecting the constitutional liberty (which does not actually exist) to kill one’s own children …

      they aren’t children until after they’re born, at which point you are correct, there is no constitutional liberty to kill them.

      however, given that we live in a society that makes no provision to take care of pregnant women, or to help them take care of their children until adulthood [which these days is birth through graduate school approximately], then women who have been forced to give birth against their will ought to be allowed to [humanely] commit infanticide shortly after birth, if they feel they have no other choice.

  4. Pat Santavenere

    No disrespect was intented toward the author in that reference, it simply was not obvious to me who the author is.
    I still disagree with you about the constitutional right to an abortion. How do you conclude that. The supreme court in Rowe v Wade overstepped its bounds by usurping the rights of states to makes their own laws concerning abortion.
    Why is the right of freedom over your own body not extended to the unborn in your mind? If that is so important, why should it not be universally important? We do in fact have that freedom; however, when adults cannot exercise such freedom by making responsible sexual choices to avoid pregnancy (and thus avoid the need to terminate a human life) it is a freedom which has been abused. Taking personal responsibility here would make more sense than ending another person’s life, would it not?

    • grahamfirchlis

      Many questions, much to unpack, and I am behind in chores so I’ll have to get back with substance later, please forgive. Regards the authorship you are correct, it isn’t as clear as it might be, so I withdraw the accusation of disrespect; my bad.

      Regards the constitutional right, it flows from the authority of the federal courts to interpret the Constitution and the supremacy of that Constitution over-riding state’s rights under the enumerated powers. The power of constitutional authority and SCOTUS’ role has long been settled in this regard but you know that, you’re a smart person. Past time to lay that one down and find new points of discussion.

      Regards individual rights, there are several issues. One is the obvious; when two rights are in conflict, as they often are, how does one fairly weigh the competing interests? Second, how does one define and establish presence as an individual? Resolution of the first flows in this case greatly from the second, so tell me please – How do you propose we establish inception of human individuality?

      Regarding taking responsibility for one’s actions, I am a huge proponent but sometimes what seems like a straightforward exercise turns out to be quite a lot more murky. At what age can one be said to actually be responsible for one’s actions? Are victims of rape or incest responsible for a consequential pregnancy? How about teens in the grip of hormonal frenzy who have been denied access to contraception?

      The best way to reduce the number of abortions is through honest and open sex education and availability of contraceptives, yet many – perhaps most – of the same people who decry abortion also oppose contraceptives and education. How is that conflict to be interpreted? Are those people responsible for uneducated teen’s pregnancies? Are they going to step up and bear the consequence by providing child care and financial support?

      In an ideal world, abortions would be rare. We can approach that ideal by providing standardized universal comprehensive sex education for our children from an early age, contraceptives at a very low cost from a wide variety of non-judgmental sources, and a non-punitive environment for those who do get pregnant unexpectedly.

      Once those are in place we might be in a moral position to explore sharper restrictions on abortion of fetuses that have reached a stage of individuality, but we also have a long ways to go towards defining what that means and how to measure it and we certainly shouldn’t restrict an established freedom for actual individual humans until we have done everything reasonable to provide effective mitigation for the loss or curtailment of that freedom.

      Gotta run. Thanks for continuing the exchange. Look forward to hearing more from you.

  5. blacksheepone

    Pat Santavenere:
    No disrespect intended, but as a mother who carried two pregnancies to term, I have to ask how you define the “freedom of your own body” of the unborn.

    Taking personal responsibility is fine.
    What about the fetus with a severe abnormality?
    Would you force an anencephalic or microencephalic pregnancy to completion?

    What about the victim of rape? Is she responsible for her impregnation? How should she have acted to “exercise such freedom by making responsible sexual choices”?

  6. These are extreme cases. My statements were directed toward adults who seek abortion for no reason of health or rape.

    • grahamfirchlis

      Pat, thanks for coming back again. Do you think that “adults who seek abortion for no reason of health or rape” are actually very common?

      I think, and statistics bear this out, that the number of people who use abortion as a primary means of birth control are vanishingly small. I also think they are probably mentally ill; they need counseling more than condemnation, and what they damn sure don’t need is a child. What exactly we do about them I don’t know, mental illness is a great difficulty, but forcing them to deliver doesn’t to me seem like a good idea for anyone – most especially the child.

      You didn’t respond to my other suggestions, regarding availability of birth control and sex education. That combination seems to be very effective in many European countries; why wouldn’t that be a sound approach here for reducing abortions?

      My other concern is that returning to illegality would simply drive them underground as it was before Roe, with little diminution of the number of abortions but much higher risk for both the woman and children who survived the attempt. Back in the day, before Roe, a fair number of women died from illegal abortions while many more were rendered sterile and not a few children were born damaged because of botched attempts. Terrible tragedy all around, and the existence of a lawful ban did nothing to stop the suffering.

      In this imperfect world, sometimes we have to weigh the alternatives and select the least-worst because the good is not available. I wish to see us try to reduce the number of abortions first by reducing the number of unwanted pregnancies. Once we’ve made a solid effort in that regard, it would then make sense to mount a vigorous campaign focused on reducing whatever residual purely elective abortions there still may be. I think that number would be extremely small.

  7. blacksheepone

    No reason of health or rape?

    No allowance for the failure of a birth control method? (Even the Pill fails once in awhile.)

    So, no fear of being unable to care for the child after nativity?

    No constraint of financial concern?

    No worry about food, shelter, clothes for self / child?

    No worry about being abandoned by the other parent?

    Please understand: I am not being flippant. I am fully aware that the prospect of motherhood, particularly for an unmarried woman who has no prior childrearing experience, is as daunting a prospect as they come.

    So is the prospect of being a divorced woman with children.

    So is the prospect of being a working-class parent, single or otherwise.

    I will not resort to the platitude that is often bandied about: such cases may in fact occur, and perhaps even occur in verifiable numbers. But I do not have available reliable figures on the numbers of such cases. Do you?

  8. Education about sex is always a good thing. In an ideal world, parents would take the major role in this education of their children and it would be an ongoing dialog not merely a one time discussion. This ensures that the values of the parents are understood by and presented to the children. I do not believe that even with hormones raging, teens have no choice but to have sex. It is certainly a temptation, but one that can be resisted, especially in an environment of love and support by parents (again, this would be the ideal).
    grahamfirchlis, I appreciate the thoughtfulness of the dialog and discussion you have been presenting. I also appreciate that you are presenting it in a spirit of kindness and mutual respect. Thanks.

    • grahamfirchlis

      Hey Pat. Sorry for the delay, fair weather and gardening to do while the sun shines.

      In an ideal world…well, but, and…I’m not sure that there’s a conflict between using schools to teach the factual nuts-and-bolts as they do with other subjects and parental teaching on “values” whatever that might mean. The biology isn’t a moral question, nor are the mechanics of “If you put this in here you will probably get pregnant.” I think both should happen, and there should be no conflict. In families where parents don’t teach, and that is a lot of the time, the kids can at least get the facts straight. Right now we do a poor job, and constant baseless pushback from the Right makes it all the more difficult.

      You say “I do not believe that even with hormones raging, teens have no choice but to have sex” and of course that is literally correct, but they just keep on doing it anyway and it isn’t just children of ignorant neglectful types either. We’ve done the experiment with “Just Say No” for sex-ed and not only does it not work, the rates of sexual intercourse and STDs and pregnancy appear to be increased. Something isn’t working there, and it may be that we are pushing against 4.3 billion years of biology and some of the time we will fail. What to do? How about we provide no-questions contraceptives for those teens that just can’t get enough parental support and love to overcome temptation?

      Regards the quality of the exchange, I am pleased that you’re pleased. We can learn a great deal more if we don’t shout at each other, and I always assume that everyone I encounter is coming from a place of genuine thoughtfulness. (Although sometimes that faith doesn’t last very long.) We’d all be better if there was more of that, mutual respect, in this topic especially. Perhaps you can help with some of the hate-speech coming from your compatriots?

      Terms like “pro-life” and “anti-abortion” for instance are extremely offensive to abortion rights supporters. No one I know who has had an abortion or provides abortion services is “pro”-abortion. None of them get up in the morning eager to get in there and kill a bunch of fetuses. Without exception the procedure is viewed with great solemnity, and generally with sorrow. It is a very big deal, not something done lightly and quickly forgotten, and anti-rights advocates should be respectful of that seriousness.

      Neither are rights supporters “anti”-life. What they are instead is committed to the concept that each of us ought to have full control over our own bodies, male and female both without distinction, and that this right is vested in the “post”-born rather than in the so-called “pre”-born. That is quite a different thing than being anti-life.

      Any help you can give to toning down the heat of the rhetoric will be much appreciated, and truly I think the most productive thing you can probably do to promote a serious exchange on the issues.

      I’ll have more to say shortly on the new Nebraska laws. You may not agree with me there either, but please do keep talking. We may never come to consensus, but we may well each learn something of value about the other and that would be a good thing.

  9. hipparchia
    “then women who have been forced to give birth against their will ought to be allowed to [humanely] commit infanticide shortly after birth, if they feel they have no other choice.”
    If we as a society were to allow murder every time we “feel” we have no other choice, we would have a very dangerous society indeed. Not to mention a very selfish one. There ARE other choices for every woman in that situation. Adoption is infinitely more humane than is infanticide.

    • Adoption is infinitely more humane than is infanticide.

      possibly it is. i was fortunate to be adopted into a wonderful family, but not every child who’s born of an unexpected pregnancy is ‘adoptable’ in our society. unless they’re white, perfectly formed, and have no known medical issues, such children often languish in the foster care system until they’re 18, at which point they’re on their own [and kicked out of medicaid too, so no more health care for them either]. it’s hugely unrealistic to think that a kid who turns 18 halfway through their senior year in high school is going to suddenly land a good job the next day [complete with health insurance] that will pay for a decent apartment, a dependable car, groceries, clothes, utilities, and allow them to both afford and attend college at the same time.

      There ARE other choices for every woman in that situation.

      this is a comforting fantasy that people like to tell themselves. after all, we live in the richest, most powerful country in the world, so there’s no excuse for there not to be a plethora of choices available to everyone.

      the sad fact, though, is that this is only true for some women in our society. it most definitely is not true for all women, and most women who find themselves unexpectedly pregnant have a fairly realistic idea of what their options are.

      free health care? free child care? decent public housing if you’re poor? decent public schools, even if you live in a low-income neighborhood? free or low-cost college? affordable, healthy food? decent-paying jobs? paid maternity leave for 3 months, 6 months, a year? paid paternity leave for several weeks or months so that the father can help out too?

      other countries have all of these things [to varying degrees] but here, not so much. and those countries have lower abortion rates too.

      if, as a society, you’re not willing to provide free, widely available birth control, fact-based sex education to all kids, and a whole host of societal supports to women and their children for as long as needed, then as a society, you cannot morally ask women to give birth to and raise [or give up] children.

  10. blacksheepone

    Hipparchia
    … as we have discussed before, it’s possible we’re twins. I was adopted … could not have asked for a more loving set of parents. That said, sometimes, we still had our fights (and after I got to be 18 they came along oftener, for awhile).

    But I think perhaps, possibly, there might be cases where your suggestion bears consideration, rather than dismissal out of hand.
    One such case is microencephaly, and another is anencephaly (although, to be honest, the anencephalic neonates don’t generally make it past the first 24 hours). I do think it’s possible that some other forms of birth defect, as we know them, do in fact represent unconquerable challenges. We’ve learnt to push for better nutrition (several years ago in South Texas we had a genuine epidemic of an/microencephalic births — I believe that’s why commercial bread is now enriched with folic acid, because it helps prevent what the docs call “neural tube defects”).

    We’ve developed surgical techniques for spina bifida and what used to be called hydrocephalus, but … there are cases that are very profound, and sometimes the parents they’re born to are not wealthy people nor fortunate to live in an enlightened society that furnishes medical care affordably.

    Seriously, if we as a nation spent an eightieth of the time and energy on fixing the safety net that we spend on ensuring a supply of cheap imported oil, we’d live in a better world ….

    • Seriously, if we as a nation spent an eightieth of the time and energy on fixing the safety net that we spend on ensuring a supply of cheap imported oil, we’d live in a better world ….

      isn’t that the truth.

      i can understand the squeamishness of people who can’t see beyond the ‘killing babies’ and i can understand the attraction for some people of debating the finer philosophical points of when life begins and whether we humans ought to set ourselves up to be in the business of ending a life, but neither of these groups has a grasp on the reality of what happens to women and children in our society.

      • grahamfirchlis

        Do you think those positions are somehow mutually exclusive? Or is there some quirk in the reasoning pattern that makes it turn out that way? Or, rather, makes it appear to you to turn out that way?

        I think as humans we passed the threshold of setting ourselves up to be in the business of ending other people’s lives a long time ago; the answer to that question is for nearly everyone entirely situational. I’m not at all sure why one’s position on that, whatever it is, would preclude an appreciation of the magnitude of female disfranchisement.

        Likewise, being open to discussion on what is – for me at least – a very interesting question that relates directly to what it means to be human, gender aside, leads in turn directly to what our responsibilities are for all humans, most especially after birth. We can answer the second one without resolving the first, and indeed if we never properly answer the second there is as you say no point in answering the first. But still, I don’t see why discussing one diminishes the chances of adequately answering the other.

      • But still, I don’t see why discussing one diminishes the chances of adequately answering the other.

        you deserve a longer and more thoughtful than i’m going to give [because i’m low on energy at the moment] so the short answer:

        the people driving this debate from the anti-abortion side are evil and are co-opting the time, money, energy, thoughts and emotions of good people like you to give cover to their woman- and child-hating agenda.

        like pat says, murdering your way out of a problem isn’t a good solution, so feeding them to the endangered desert lions is out. in which case, i’ll settle for just depriving them of a stage and starving their arguments of oxygen [by not participating in their arguments at all].

      • grahamfirchlis

        Eeeeevvviilllllll, evil I say!

        No doubt, some are. But many not-so-evil people also have uncertainties and qualms and even honestly held opinions that run counter to what you and I believe to be true. I’m not asking anybody to give into evil, but I do think we could tone the whole thing down a bit by honoring the honesty of the decent people just as we expect them to honor our opinions even though we differ. No one, of course, need participate if they feel uncomfortable doing so.

        It always boggles me that the seriously fundie Christianists who are so certain they’re headed to heaven are also the ones who will do anything to keep people living, however absurdly expensive and unlikely the treatment – cf, Terry Schaivo. If you’re Saved and an Obamacare Death Panel decides to off you, shouldn’t you feel grateful? Send a thank-you card, instead of complaining? Why wouldn’t they line up for martyrdom, if we can provide the lions?

  11. The Other Sarah

    Well, you know, Graham, sometimes I think my right to defend myself includes the use of deadly force.

    That probably colors my views on abortion.

    Not being every woman facing the need to find an alternative to continuing a pregnancy makes it much more difficult to come out with a concrete, black-and-white, “Ok in this case, NOT Ok in that case.”

    Yet, there is in this country a vocal group who want to say “NOT OK” in every case, and … the problem there is, a live woman will suffer if they get their way.

    Not one of their sisters or daughters of privilege, most likely; not one of their daughters or sisters of faith, most likely; some “other” woman, some faithless, uncontrollable, wanton woman they imagine … much like the TEA pottiers imagine that all brown people are out to usurp the TEA pottiers’ goodies.

    For some people — not merely in America, but people, period — “fair share” is not a concept they can absorb, because “share” means they can’t have it all the way they want it all the time.

  12. grahamfirchlis

    I’m ambivalent myself about even voicing an opinion, being male and not ever in danger of getting pregnant, so I never have and never will need to deal directly and inside my own person with the conflicts. My opinion, men should probably back the hell off and let women sort it out, but that isn’t how it is happening and if everyone gets a voice then I’d be a fool to keep quiet.

    I am conflicted in some regards. Maybe that’s worth a post, piss off everyone on all sides. Seems to be my major gift….

  13. …piss off everyone on all sides. Seems to be my major gift….

    go for it, dude! it’s one of the things i love about you.

    …and if everyone gets a voice then I’d be a fool to keep quiet.

    that’s pretty much why i got into blogging int the first place.

    • grahamfirchlis

      one of the things i love about you

      We’ll see how long that lasts….

      Some of these topics require me to be very open about my self and my background, and well, it seems a risk since every time I do that somebody comes along and makes light of what I’ve written. Over at Digby’s there was a post about how easy it was to protest in the 60s not like today with all the new surveilance, bunch of yuppie puppies weighed in with Oh Yah Teh Scary Now and I gave them both barrels, bunch of bullshit is what that is, lazy bastards making excuses so they don’t have to take any risks. Now no matter what I write about the same crew chimes in with Hey Granddad, How’s The Rocker?

      I feel safer writing about referenced facts and making logical arguments, but with this topic the personal comes in whether we want it to or not and it seems disingenuous to dance around personal testimony.

      I dunno. Have to decide if the gain is worth the risk.

  14. Pingback: Nebraska fetal pain abortion restriction based on fantasy not science « Whenceforth Progress

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