The Baucus Plan and Abortion — Part IV (Final)

The Senate Finance Committee is now in session considering Sen. Max Baucus’ health care proposal. They are supposed to consider some pro-life amendments to the bill sometime today. Thank you so much, Jim, for your very thoughtful and detailed analysis for us! Here now is part IV.

This is the final portion of a series that attempts to describe the problems of the Baucus health care proposal, the so-called “Chairman’s Mark,” now being debated in the Senate Finance Committee. Our august Senators are still playing “hide the ball” with the text of the proposal and amendments. As before, we can only use what is provided. If any language turns out to differ from the “Chairman’s Mark” (CM) because the CM is an inaccurate summary or it has been amended in committee, then these observations may need to be revised accordingly.

Proponents of the Baucus plan have claimed that it contains provisions that keep our tax money from paying for abortions. Douglas Johnson, the formidable Legislative Director for the National Right to Life Committee, calls these provisions “head fakes.” He is absolutely correct.

One of the “head fakes” is this sentence: “No tax credit or cost-sharing credits may be used to pay for abortions beyond those permitted by the most recent appropriation for the Department of Health and Human Services. “ CM, p. 26. Apart from the mendacity of tying any restrictive language to appropriations restrictions that will be ended if there is enough political muscle to enact this health reform, there is mendacity in this sentence. While it appears to be pro-life, when one puts it to the test in light of past experience with pro-life language in court, one finds that it will do nothing to prevent federal subsidies of abortion.

It is likely that the courts will see the restriction as merely a directive to the federal Treasury not to write checks to abortionists. That would make the sentence no restriction at all to payments for abortions by health insurers. This is how a Missouri law that resembled this sentence was interpreted two decades ago. Section 188.205 of the Revised Statutes of Missouri says, “It shall be unlawful for any public funds to be expended for the purpose of . . . encouraging or counseling a woman to have an abortion not necessary to save her life.” A few years after enactment, during litigation with Planned Parenthood, Missouri’s Attorney General officially stated that the statute “was not directed at the conduct of any physician or health care provider, private or public,” but “is directed solely at those persons responsible for expending public funds.” Webster v. Reproductive Health Services, 109 S. Ct. 3040, 3044 (1989). Planned Parenthood was so delighted with this interpretation that it immediately dropped its challenge to this portion of the statute. Id. The same interpretation of the federal statute could well be made: it governs only those government officials who write the subsidy checks and no one else afterward.

Such an interpretation actually comports with the literal language of the statute, considered apart from any pro-life purpose legislators may have in mind. The funds that are used to pay for the abortions will be the insurance companies’ funds, not the government’s money. Where the insurance company obtained the funds will be of little import. The funds will no longer be “tax credits” after the individual taxpayers deposit them into their bank accounts or “cost-sharing credits” after the insurance companies have put them into their banks. Thus do lawyers and courts make mincemeat of what would appear to be a command not to use these two federal subsidies for abortions.

The second fake language consists of the following: “In addition, insurers participating in any state-based exchange that offer coverage for abortion beyond those permitted by the most recent appropriation for the Department of Health and Human Services must segregate from any premium and cost-sharing credits an amount of each enrollee‘s private premium dollars that is determined to be sufficient to cover the provision of those services.” CM, p. 26. This language is not very clear. It seems designed to give the impression that a portion of each private person’s premiums is going to be separated out from the rest of the premium money, and that portion will then be kept separate from the government’s subsidy money. Supposedly the portion to be separated out will represent the cost of abortion services. Let’s examine this more closely. We’ll call the separate money the “abortion portion,” and the rest of the premium money the “general fund.”

Assuming that is what the language means, a reader should note well several features of this provision. First, as noted above, once the money from the government is deposited, it is no longer a “premium credit” or a “cost-sharing credit.” The government has relinquished control over it. It is simply money. Thus, under a literal reading of the Baucus language, there is no requirement to keep the former government funds separate from the “abortion portion” of private premiums once the government subsidies are deposited into insurers’ bank accounts. Second, the Baucus language actually does not say anything about separating the private premium money at all. While that is the impression it gives by using the term, “segregate,” it is deliberately obscure in just how the segregation is to occur. Once the “premium credit” and the “cost-sharing credit” disappear into the insurers’ bank accounts, there is nothing in existence for the “abortion portion” to be segregated from. The proponents hope that in an attempt to make sense of the language, we read into the language a requirement for separate accounts that isn’t actually there.

Next, it is quite likely that “segregation” will only occur in the form of after-the-fact accounting entries that have nothing to do with the actual flow of money. All the government’s subsidy money and all premium payments from private individuals will probably go into the same bank accounts of the health insurers. The insurance companies may be directed to list the money in their financial reports as if it was in two separate accounts, one the “abortion portion” and another the “general funds,” but there will not be any separate bank accounts in real life. That is how the government itself treats the “Social Security Trust Fund,” where no one’s social security tax contributions are actually kept separate from the rest of the government’s money; they are just listed that way on the government’s financial reports. The government finds it OK to deal in fictional accounting for citizens’ money, so it figures that it can make insurance companies use fictional accounting for insurance premiums in connection with government-subsidized health programs.

Finally, even if the premium payments were actually segregated into separate accounts, there is no restriction placed on paying for abortion out of any one or more of the accounts. The Baucus language does not forbid the insurers to pay for abortions out of the “general funds.” It does not limit the money available for abortions to the money in separate “abortion portion” accounts. So even in the unlikely event that separate bank accounts were to be established, it would be a meaningless gesture; they could all be used for abortions in the Baucus scheme.

Finally, the government’s subsidies are going to be calculated on all coverage that a person buys, not just coverage without abortion. Thus, if the government subsidizes 10% of the cost of the policy that includes abortion, it subsidizes 10% of the abortion coverage, too, no matter what kind of accounting maneuvers are used later for the bookkeeping. This is perhaps the most important point of all: it means that economically, the government is going to be subsidizing abortion coverage. All the accounting tricks in the world will not change that economic result.

Perhaps an analogy will help. If it doesn’t, move on to the next paragraph, but otherwise, suppose this situation: The government decides to subsidize groceries of less-well-off folks with cash instead of food stamps. The amount of cash subsidy depends on how much you expect to spend for a basic “food coverage plan” in the next year. The government thinks it best to allow everyone to buy liquor in their “food coverage plan” so that they can celebrate the Super Bowl and birthdays and whatever, at least to a limited degree, just like all the people who have more money. But there is an outcry from the public that the government should not subsidize liquor, only food. The government answers the outcry by setting up the program so that when you submit your proposed budget for your “food coverage plan,” you can include some amount of liquor, and the government will send 10% of the entire total right away to the government-approved grocery you will use. You will pay the other 90% of your “grocery coverage plan” directly to the grocery. To address the liquor problem, the government orders that in the grocery store’s accounting at the end of the year, whatever you spend on liquor will be written down as 100% paid by you, while the government’s 10% subsidy must be written down as paying for only groceries. Then the government claims that it is not subsidizing liquor. Can anyone believe that the government will not be subsidizing liquor in this situation? It is preposterous to pretend that government funds are not being used to subsidize liquor in this analogy. The government allows it in the basic plan and subsidizes the whole plan, liquor included, without reducing its subsidy according to the liquor you buy.

Just as in the hypothetical grocery example, the Baucus proposal will cover abortions, subsidize the insurance premiums that pay for that coverage, and then attempt to disguise the subsidy by phony accounting entries that it will require the insurance companies to make. “Head fakes” is an apt description. I would go farther and call it fraud.

The purpose for this elaborate scheme is that it will greatly increase the number of abortions in this country. There are a lot of people who will not buy abortion coverage if it a separate rider—older folks will not; young unmarried men will not (they probably won’t buy any insurance at all if it is not mandatory); even young unmarried women and parents with teenage daughters are going to think twice about buying abortion coverage. Insurance companies will not pay for abortions that are not covered by riders, when the law requires riders for them. By incorporating abortion coverage into health care plans as one service of many in standardized plans, the promoters of health reform intend for coverage of abortions to be vastly expanded.

Vastly expanded coverage of abortions will translate into more abortions. How many more, it is hard to estimate. But we do know that when the Hyde Amendment removed abortions from Medicaid except for the “hard cases,” the number of Medicaid abortions dropped from over a quarter million per year to almost none. Not all of the disqualified abortions were made up for by private funds; some undoubtedly were not done at all. Lives were saved. The NRLC estimates that the Hyde Amendment saved between one and two million lives from the time it was allowed to go into effect in 1980 through the date of Congressman Hyde’s death in 2007. “National Right to Life Mourns the Death of Former Congressman Henry J. Hyde,” National Right to Life News, vol. 34, no. 12, p. 6 (Dec. 2007). Those who devalue the lives of the unborn find this to be a tragedy to be reversed, and they see health care reform as an opportunity to do so.

I hope I have demonstrated in these Notes how the Baucus proposal will vastly expand abortion in our country and also how every one of us would be required to subsidize abortions with our premium dollars and with our tax dollars. This is a travesty that needs to be stopped. Please call and/or e-mail both your U. S. senators and ask them to vote against the Baucus “Chairman’s Mark” unless pro-life amendments are added to it to keep it from including abortions. Abortion is not health care, it is infliction of death, and we should not have to pay for it.

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