Devil's Advocates

In a piece written for the Web site Public Discourse, Professor Helen Alvaré of George Mason University has responded to my article “Episcopal Oversight,” which appeared in the June 4 issue of Commonweal. In that article I challenged the claim—made by the United States Conference of Catholic Bishops (USCCB), among others—that the health-care reform legislation that passed in March (The Patient Protection and Affordable Care Act) provides federal funding for abortions. Alvaré accuses me and Commonweal of being naive and strongly suggests that our analysis of the legislation is politically motivated. Because Alvaré is a respected expert on prolife issues, a law professor, and former advisor to the USCCB’s prolife office, I feel obligated to reply to her criticism. 

First, two confessions. I have in fact said things on the Web that in retrospect I wish I hadn’t, and it wasn’t hard for Professor Alvaré to find some of these things. I blog from time to time at Politico’s Arena, an edgy forum where people from across the political spectrum say edgy and sometimes stupid things. I wish I had waited longer before hitting the send button on a few comments I made there. Second, I am not in fact an expert in Catholic moral philosophy; I am not even a Catholic. I am, however, a prolife Christian—more specifically a Mennonite. We Mennonites believe we are among the most prolife of Christians. We believe that Jesus taught that taking life even in war is wrong. But other prolife legal scholars, such as Professor Thomas Berg of the University of St. Thomas Law School, interpret the ACA in the same way I do.*

I wrote for Commonweal as an expert not in moral philosophy but in health law, a field I have written about for three decades. (I am an author of the leading textbook on the subject.) Alvaré claims that in my Commonweal article and elsewhere I have failed to answer six questions. Frankly, I think I have answered those questions. But, since my answers were not clear to Professor Alvaré, let me try again.

First, Alvaré states that the Hyde amendment, which prohibits coverage of abortions under federally-funded programs except in cases of rape or incest or to save the life of the mother, does not apply to programs for which funds are appropriated under the Affordable Care Act, including new funds for community health centers. It’s true that the Hyde Amendment, which covers funds appropriated through the Department of Health and Human Services, does not specifically cover the funds appropriated for community health centers under section 10503 of the Affordable Care Act. However, these new funds are not to be paid directly to the community health centers, but are to be transferred to HHS to provide “enhanced funding” to the centers. That means the new funds will be combined with funding appropriated to HHS and covered by the Hyde Amendment. Since the new funds for community health centers will be mixed together with funds covered by the Hyde Amendment, the health centers would risk violating the Hyde restrictions by spending any of the money they receive from HHS on elective abortions. 

Second, Alvaré claims that the HHS regulations that explicitly prohibit spending the new funds for community health centers on abortion have no legal effect. Apparently Professor Alvaré is unaware of the Chevron principle, a basic principle of administrative law that requires courts to defer to the reasonable interpretation of a law by a federal administrative agency unless the law is unambiguous. I suspect that if Alvaré were briefing a case involving an interpretation of 42 USC 254b, she would not argue that its requirement that community health centers provide obstetric and gynecological services unambiguously requires that they provide abortions (which they have never provided before). Courts would almost certainly defer to HHS’s interpretation of the statute. I have read many cases interpreting federal Medicare and Medicaid law, and the federal courts apply Chevron deference with a vengeance in such cases.

Third, Professor Alvaré claims that the President Obama’s executive order is meaningless. When the president acts within his Constitutional authority in directing the executive departments, executive orders have the force of law. If the president ordered an executive agency to defy a clear congressional directive, a constitutional problem could arise, but if the president is interpreting the law, he is within his constitutional authority. When last week it was asked whether states could use high-risk-pool funds appropriated under the Affordable Care Act to cover elective abortions, HHS said they could not. The Hyde Amendment does not explicitly apply to these high risk pools, but the Affordable Care Acts provides that grants under the program must meet “any other requirements determined appropriate by the Secretary,” and HHS determined that state programs must comply with the executive order. I really don’t think Alvaré would argue in court that this decision was legally wrong were the issue to be litigated by an abortionist seeking access to these funds.

Fourth, Professor Alvaré claims that unspecified federal court decisions render the regulations and executive order meaningless. Does Professor Alvaré really think that the law governing community health centers so clearly requires that they cover abortion that courts would never defer to HHS or to an executive order that prohibits abortion coverage? Again, I doubt she would take that position were the issue to be litigated.

Fifth, Alvaré claims that the Affordable Care Act crosses a line never crossed before by permitting federal funds to subsidize health insurance that covers abortion. In fact, the federal government has subsidized health plans that cover abortion since 1954, when the tax code authorized tax deductions and exclusions for employment-related health insurance. The federal government subsidizes employment-related health insurance with tax preferences worth more than $200 billion a year. Many of these policies cover abortion. The tax credits used to pay for health plans under the Affordable Care Act, on the other hand, cannot legally be used to pay for abortions. Policy-holders will be able to purchase separate abortion-coverage riders with their own money, but these riders must fully cover all abortion costs and must be fully paid for by private funds. In fact the onerous conditions that insurers must meet in order to cover abortion in plans available in the new insurance exchanges will likely make insurance-funded abortions much less common than they are now under tax-subsidized employment-related insurance.

Finally, Alvaré claims that the Affordable Care Act fails to protect providers who refuse to do abortions from discrimination. Section 1303(c)(2), titled “Application of state and federal laws,” states that nothing in the Affordable Care Act shall be construed to affect federal laws regarding conscience protection—an obvious reference to the Weldon amendment. The executive order makes it clear, if such a clarification were needed, that the Weldon amendment applies to the Affordable Care Act. Many provisions of the Act were not well drafted. Political circumstances after the Massachusetts senatorial election made it impossible to have the House-Senate conference that could have improved the legislation, but the intent of the law to protect conscience is nonetheless quite clear.

Now that I have responded to Alvaré’s challenges, let me pose two to her. First, her Public Discourse article fails to cite a single judicial opinion. If she can cite a single opinion that has ordered abortion coverage in the face of a federal administrative regulation and an executive order that interprets a federal statute as prohibiting abortion coverage, I ask her to do so. I have been unable to find such a case, but I’m open to being corrected.

Second, I ask Professor Alvaré, What purpose does your argument actually serve? What Alvaré has written is essentially a brief that could be used by an abortionist claiming that community health centers must cover abortions. This is a very strange argument for a prolife advocate to be making. It is an argument that seems to have more to do with opposition to the Affordable Care Act than with opposition to abortion.

* This sentence has been corrected. The previous version misidentified Berg as a Catholic.

Related: Jost Jousts, by the Editors 

 A Pattern of Missteps, by the Editors

 Crying Wolf, by the Editors

Prolife, Yes, and Pro-Reform, by the Editors

No Coward, by the Editors

When Bigger Is Better, by J. Peter Nixon

'Abortion Neutral'? by the Editors