The nation's Catholic bishops are maintaining a firm stand against the health care reform bill despite the decision of their onetime allies, the national association of Catholic hospitals, to endorse the legislation, and in the face of mounting evidence that the basis of their opposition -- a conviction that the bill would finance abortion -- is faulty.
The health care reform bill is due for a showdown vote in the House later this week. Its success or failure appears to hinge on whether a dozen or so pro-life House Democrats -- taking their cue from the Catholic hierarchy -- will vote en masse against the Senate version because they believe it does not contain the same language barring abortion financing as the House bill.
The language in the House bill is contained in the Stupak Amendment, named after Rep. Bart Stupak, the Michigan Democrat who is organizing a last stand of a dozen pro-life Democrats against the Senate bill, saying he and the Catholic bishops agree the Senate bill would open the floodgates to taxpayer financing of abortion. (The Senate bill would form the basis of the health care overhaul because the Democrats have to resort to a parliamentary maneuver known as "reconciliation" to avoid a Republican filibuster; that means there will not be the usual opportunity for synthesizing contrasting language with the House version.)
As Politics Daily reported
last week, the anti-abortion camp's verdict on abortion financing in the Senate bill has serious shortcomings.
Over the weekend, as reports began to circulate that the Senate bill was as pro-life -- if not more so -- than the House version, the staff of the pro-life office of the United States Conference of Catholic Bishops began to counter that claim with a series of memos and e-mails that continued flying back and forth through Monday, and which will likely continue until the bill's fate is decided.
The focus of much of their concern was a point-by-point critique by Timothy Stoltzfus Jost, a law professor at Washington and Lee University and a top health care expert who is a devout Mennonite and pro-life advocate. Jost's analysis was featured prominently in last week's Politics Daily article. Like the Catholic bishops, Jost supports affordable, quality, universal health care. But as one of the leading experts in the field of health care legislation, he believes that the bishops' opposition to the bill is mistaken, and his analysis was a powerful deconstruction of the bishops' claims.
In a sign of how closely the bishops conference is working with some of Obama's political opponents on this issue, a memo in rebuttal to Jost's analysis was posted early Sunday morning on the Web site of the National Right to Life Committee (NRLC), an influential lobby that is a dedicated foe of President Obama's and of Democratic efforts to overhaul the health care system.
Yet as of late Monday, the bishops' memo had still not been posted on the bishops' Web site or sent to the media. That effectively gave the NRLC and its allies a head start in getting the message against Jost out to their members and blogs.
In the bishops' four-page memo
, the staff of the hierarchy's pro-life office, led by Richard Doerflinger, their longtime point man on the issue, say that Jost's analysis "is wrong in most of its major claims." Later Sunday, Jost issued a detailed seven-page response
that rebuts Doerflinger's contentions and cites chapter and verse of the health care bill to point out errors in the analysis of the bishops' office.
Other health care experts supported Jost's analysis, and described Jost's interpretation as ironclad.
"The Senate bill does not fund abortions to any degree," said Sara Rosenbaum, a professor of health law and policy at George Washington University and a leading expert who has extensively analyzed the health care bill and its abortion provisions. "If anything, it bends over backwards to make it clear that there is no abortion funding."
But in several e-mails Monday, Doerflinger pressed his contention that if the bill passed, pro-choice activists would find a way -- likely through the courts -- to funnel billions of taxpayer dollars to pay for abortions. That has been outlawed by federal law and regulations for four decades, and those bans are included in both the Senate and House bills.
The major point of contention between Doerflinger and health care experts, lawyers and Catholic ethicists who support health care reform, centers on the bill's projected outlays of $7 billion -- the figure could go as high as $11 billion -- to the 1,250 federally financed and regulated Community Health Centers (CHCs) that provide health care to millions of low-income Americans and provide prenatal, perinatal and post-partum care to 1 in 8 children born in the United States. The funding is a critical component of reforming the health care system.
Funding to the CHCs has been crucial to the doomsday scenario that Republicans and anti-abortion advocates have repeated since last summer, as they contend the health care bill would amount to a massive taxpayer check to finance Planned Parenthood clinics and turn CHCs into abortion mills.
Yet none of the funding under either the Senate of House bill could go to Planned Parenthood to fund abortions, or to any organization to underwrite abortions. Moreover, CHCs, which were founded in the 1960s as part of the War on Poverty, have never provided abortions and are not about to start, nor can they do so under federal law. Under President George W. Bush, who was staunchly anti-abortion, the number of CHCs doubled in number, and their annual appropriation topped $2 billion a year.
Doerflinger and the bishops contend, however, that the Senate bill, unlike the House version, does not properly allocate funds and that as a result the funds will not be subject to the so-called Hyde Amendment, which was first passed in 1976 to ensure that no appropriations from the Department of Health and Human Services (HHS) would go to pay for abortions. Health care experts like Jost and others say Doerflinger's claim is incorrect, but they also point out that even if the money trail through HHS is not clear to Doerflinger and the bishops, the money is still subject to Hyde provisions.
They also note there are several other safeguards against the money going to pay for abortions at CHCs beyond the fact that CHCs do not provide abortions. The reason is that there are separate federal regulations (42 C.F.R. 50.301, 50.303) that have been on the books since the 1970s and prohibit "any programs or projects supported in whole or in part by federal financial assistance, whether by grant or contract, appropriated to the Department of Health and Human Services and administered by the Public Health Services," from performing abortions except under the same exceptions granted under the Hyde Amendment -- for cases of rape, incest or physical life endangerment of the mother.
Moreover, in recent days, the Department of Health and Human Services has circulated an internal memo reiterating the validity of those regulations and reasserting that President Obama and HHS head Kathleen Sebelius would make sure no funding to CHCs would pay for abortions.
"There have been concerns that the Senate bill does not include an explicit provision that would subject these new funds to the abortion-related restrictions under the Hyde Amendment," says the memo
, which was obtained by The New York Times. "Regardless of whether the Senate bill would do so, there have existed for over 30 years regulations that prohibit federal funds from being used for abortion services in programs administered by HRSA and other PHS agencies, except in cases of rape or incest, or where the life of the woman would be endangered . . . These regulations on their face would apply to these new funds."
Still, Doerflinger argued in e-mails to me on Monday that past legal rulings would force the courts to require CHCs to use taxpayer dollars to pay for abortion on demand, in spite of the wording in a new health care law or Obama administration orders. "If HHS tried to rein this in [that is, bar abortion funding], a lawsuit would be filed against HHS by abortions rights groups, claiming to represent the rights of women, and all the law would be on their side," Doerflinger said.
Doerflinger also argues that the regulations ostensibly barring CHCs from performing abortions expired three decades ago and so could not be used even though the HHS says they are in effect.
Health care experts say both claims by Doerflinger do not stand up to scrutiny. "It's a current rule," said Rosenbaum, noting that the HHS memo reaffirming the existing federal rules reiterated that point. "Boom. End of discussion. Doerflinger is just wrong. He's totally wrong."
Rosenbaum -- who is pro-choice -- described a CHC as "a clinic, but it's also a legal vessel comprised of federal dollars. The federal dollars are subject to the Hyde rules [against abortion funding]. And once you are a Community Health Clinic you cannot do anything that does not comport with Hyde. It's that simple."
"The irony is that there is not a program that the bishops support more than health centers, and what this jeopardizes is the ability of health centers to grow," she added. " It defies logic why in the face of black-letter law that binds health centers, the [bishops] conference continues to take this position."
Such assurances have given solace -- and cover -- to a growing number of Catholic groups and leaders coming out in favor of the Senate legislation. The endorsement of the Senate bill on Saturday by the Catholic Hospital Association and its leader, Sister Carol Keehan, represented the first serious split with the bishops by a major player and ally. The bishops, like the CHA, have long supported quality, affordable, universal health care for all Americans, including immigrants, but differences over the abortion issue eventually proved to be the wedge between the two groups.
The shifting tide of opinion and evidence is unlikely to change the minds of the Catholic bishops. Last Sunday, the conference sent out fliers for parish bulletins across the country that denounce the health care reform legislation, and in his weekly column, Denver's conservative Archbishop Charles Chaput said the bill was "gravely flawed." Chaput said the blame "comes entirely from the stubbornness and evasions of certain key congressional leaders, and the unwillingness of the White House to honor promises made by the president last September."
The Denver archbishop also took aim
at Catholics who support the reform bill:
Groups, trade associations and publications describing themselves as 'Catholic' or 'prolife' that endorse the Senate version -- whatever their intentions -- are doing a serious disservice to the nation and to the Church, undermining the witness of the Catholic community; and ensuring the failure of genuine, ethical health-care reform. By their public actions, they create confusion at exactly the moment Catholics need to think clearly about the remaining issues in the health-care debate. They also provide the illusion of moral cover for an unethical piece of legislation.
As long as church leaders and the staff of the bishops conference continue to talk like that, there appears little hope that Bart Stupak will come around to support the bill. Indeed, pro-lifers are hailing him as a hero for the ages. Here's a remixed clip from "Braveheart" casting Bart Stupak as William Wallace
(and Barack Obama and Nancy Pelosi as bloodthirsty English bad guys), courtesy of Catholic Vote Action.org.
But there are indications that some of "Stupak's Dozen" may be giving the anti-abortion claims about the Senate bill a second look, according to an interview
Stupak gave to National Review on Friday. "At this point, there is no doubt that they've been able to peel off one or two of my 12," Stupak said. "And even if they don't have the votes, it's been made clear to us that they won't insert our language on the abortion issue."
As a growing number of experts are arguing, however, they don't have to insert his language to reach his goal.