WSJ Falsely Suggests GOP Abortion Bill Is Consistent With Current Law

››› ››› ADAM SHAH

Kimberly Strassel of the Wall Street Journal claimed that because President Obama said the health reform law will respect previously-existing restrictions on federal funding for abortion, he should support Republicans' "No Taxpayer Funding for Abortion Act." In fact, the health care law is consistent with existing restrictions on federal funding for abortion, and the GOP bill goes far beyond those restrictions.

WSJ Suggests Obama Should Support GOP Bill Based On His Past Positions

Strassel: "Will The President Demand The Senate Take A Vote" On The Republican Bill? From Kimberly Strassel's January 21 Wall Street Journal column:

The Republican opportunity now shifts to finding out. In two years in office, Mr. Obama has proven adept at saying one thing while doing another. The difference now is that control of the House allows the GOP to point out the distinctions. A broad complaint--say, that Mr. Obama is "pro-regulation"--may not work. But the GOP does have the ability to send, week after week, clear pieces of legislation to the Senate that will challenge Mr. Obama to back up his rhetoric with action.

A first example: Republicans are unveiling a bill to prohibit taxpayer-funded abortions. Mr. Obama claims to believe in this; last year he signed an executive order that in theory backs the ban. The GOP legislation would codify the prohibition. Will the president demand the Senate take a vote? The president may be hoping that Senate Majority Leader Harry Reid will shield him from some of these legislative challenges. But Republicans intend to make Mr. Reid's intransigence a daily issue and in the process put Mr. Obama on the spot. [Wall Street Journal, 1/21/11, emphasis added]

In Fact, GOP Bill Would Go Far Beyond Existing Restrictions On Abortion Funding

Bill Introduced By Congress Changes Tax Treatment For Purely Private Insurance Plans That Cover Abortion. The GOP's "No Taxpayer Funding for Abortion Act" contains a section prohibiting tax benefits for "a health benefits plan that includes coverage of abortion." From the bill:


''For taxable years beginning after the date of the enactment of this section

''(1) no credit shall be allowed under the internal revenue laws with respect to amounts paid or incurred for an abortion or with respect to amounts paid or incurred for a health benefits plan (including premium assistance) that includes coverage of abortion,

''(2) for purposes of determining any deduction for expenses paid for medical care of the taxpayer or the taxpayer's spouse or dependents, amounts paid or incurred for an abortion or for a health benefits plan that includes coverage of abortion shall not be taken into account, and

''(3) in the case of any tax-preferred trust or account the purpose of which is to pay medical expenses of the account beneficiary, any amount paid or distributed from such an account for an abortion shall be included in the gross income of such beneficiary. [H.R. 3, The No Taxpayer Funding for Abortion Act, 1/20/11]

CQ: Republican Bill Would "Eliminate Tax Breaks For Health Insurance Premiums On Policies That Cover Abortion-Related Services." Congressional Quarterly Today reported:

Ardent opponents of abortion want the House's new Republican leaders to set up quick action to tighten and expand restrictions on federal funding of abortions.

New Jersey Republican Rep. Christopher H. Smith, a vocal abortion rights opponent, will unveil a bill Thursday that would permanently ban federal funding and eliminate tax breaks for health insurance premiums on policies that cover abortion-related services. He is calling on GOP leaders to move the bill to the floor quickly.


Smith's bill is far more ambitious than the one Republican Joe Pitts of Pennsylvania has proposed that would ban federal funds for abortion services under the health care overhaul law (PL 111-148, PL 111-152).

Pitts' measure resembles a proposal developed by former Democratic Rep. Bart Stupak of Michigan that was included in the House version of the health care overhaul but was dropped from the final version sent to President Obama last year.

Abortion rights supporters said they will keep their focus on stopping any such legislation in the Senate.

"It doesn't take too much resistance in the Senate to cause problems," said California Democratic Rep. Henry A. Waxman.

Democratic Rep. Diana DeGette of Colorado, an outspoken abortion rights proponent, said of Smith's bill: "This would be the biggest intrusion on a woman's right to choose in our lifetime. This is not the will of the American people."

Donna Crane, a spokeswoman for the National Abortion Rights Action League, said Smith's bill would go far beyond barring federal funding for abortion by blocking employers from claiming a tax deduction for premiums paid for insurance that covers abortion.

"They want to reach into the tax code and change health insurance benefits," Crane said. [Congressional Quarterly Today, 1/19/11, accessed via Nexis]

Pro-Choice Groups Believe The Bill Would Deny Tax Deductions For All Employer-Provided Health Insurance That Covers Abortion. From a December 9 Mother Jones article:

Susan Cohen, the director of governmental affairs for the pro-abortion-rights Guttmacher Foundation, argued in a policy brief this fall that "the Smith bill would go...into uncharted territory" by preventing employers from taking a tax deduction for offering an insurance plan that covered abortion. (Like most other benefits, health insurance costs are generally tax-deductible for employers.) Analysts at NARAL Pro-Choice America and Planned Parenthood, the leading abortion rights advocacy groups, agree. According to abortion-rights advocates, Smith's bill would create a huge incentive for employers to only offer health insurance that doesn't cover abortion. Insurers would respond to what their customers wanted, and the percentage of health plans offering abortion coverage--currently 86 percent--would undoubtedly plummet. [Mother Jones, 12/9/10]

Law Professor Jost: Bill Means That Self-Employed People And People With Health Savings Accounts "Wouldn't Be Able To Treat Abortions As Medical Expenses. From the Mother Jones article:

While experts agree that Smith's bill would have some impact on tax policies, not everyone buys the abortion-rights groups' analysis. Timothy Jost, an expert in health law at Washington and Lee University Law School, says he agrees with the abortion-rights groups that the tax provisions in the Smith bill would mean that self-employed people and people with health savings accounts (HSAs) wouldn't be able to treat abortions as medical expenses. But he doesn't agree that the bill would prevent employers from deducting the costs of insurance plans that include abortion coverage. [Mother Jones, 12/9/10]

Jost: Bill's Provisions On Tax Subsidies Would Be "A Substantial Victory For the Pro-Life Movement." The Mother Jones article also reported: "Jost believes that 'going after the tax subsidies that affect abortion' would represent a 'substantial victory for the pro-life movement in America.' " [Mother Jones, 12/9/10]

NPR: Republican Bill "Would Do More Than Just Write Into Law Existing Abortion Restrictions." From a January 21 NPR report:

The legislation, called the "No Taxpayer Funding for Abortion Act," is sponsored by Rep. Chris Smith (R-NJ), the longtime chairman of the House Pro-Life Caucus.

Smith says the bill would write into permanent law existing abortion restrictions that Congress has to currently renew every year.

"Our new bill is designed to permanently end any U.S. government financial support for abortion, whether it be direct funding or by tax credits or any other subsidy," he said.


And it's not just abortion-rights groups that say the law didn't expand abortion access. Timothy Jost, a law professor at Washington and Lee University and a prominent anti-abortion voice, says what many Republicans are saying about the law and abortion is simply not so.

"Both the federal court in Virginia and the Ohio Elections Commission determined that the claim that the [health law] funds abortion is false," Jost said. "So the question is not whether we're going to strip abortion funding from health care reform. The question is how much further Congress is willing to go to remove tax subsidies for abortion coverage that is currently available."

Jost is referring to the fact that Smith's bill would do more than just write into law existing abortion restrictions. It would also eliminate tax benefits for insurance policies that cover abortion -- even abortions in most cases of medical necessity.

NARAL's Crane says the effect could be far-reaching.

"If you are a health insurance plan and you are selling your product, and all of a sudden it becomes that much more expensive because there are tax penalties imposed on it, you're probably going to change the nature of your product, and in this case we're quite certain that Chris Smith intends for health insurance plans to drop their abortion coverage," Crane said. [NPR's Morning Edition, 1/21/11]

GOP "Pledge To America" States That Their Proposal Would "Go Further" Than Hyde Amendment. In September 2010, House Republicans released their "Pledge to America" outlining their agenda. The pledge states:

Permanently Prohibit Taxpayer Funding of Abortion

We will establish a government-wide prohibition on taxpayer funding of abortion and subsidies for insurance coverage that includes abortion. This prohibition would go further and enact into law what is known as the Hyde Amendment as well as ban other instances of federal subsidies for abortion services. We will also enact into law conscience protections for health care providers, including doctors, nurses, and hospitals. [, accessed 1/24/11]

Health Care Reform Law Is Already Consistent With Existing Limitations On Federal Funding For Abortion

Obama Executive Order Affirms That Health Care Reform Is Consistent With Hyde Amendment's Restrictions On Funding For Abortion. On March 21, 2010, Obama announced an executive order to reaffirm that the health care reform law adheres to "longstanding restrictions on the use of federal funds for abortion." The Order states:

Following the recent passage of the Patient Protection and Affordable Care Act ("the Act"), it is necessary to establish an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment. The purpose of this Executive Order is to establish a comprehensive, government-wide set of policies and procedures to achieve this goal and to make certain that all relevant actors--Federal officials, state officials (including insurance regulators) and health care providers--are aware of their responsibilities, new and old.

The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly-created health insurance exchanges. Under the Act, longstanding Federal laws to protect conscience (such as the Church Amendment, 42 U.S.C. §300a-7, and the Weldon Amendment, Pub. L. No. 111-8, §508(d)(1) (2009)) remain intact and new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions. [, 3/21/10]

Politico: "Independent Fact Check Organizations Have Concluded That The Health Reform Does Not Allow For Federal Funding Of Abortion." Politico reported on January 20:

The new legislation will no doubt keep health reform on the front burner, as House Republicans look for specific provisions of the law they can tackle that will resonate with voters. While independent fact check organizations have concluded that the health reform does not allow for federal funding of abortion, Republicans remain insistent that the language is too loose and the possibility for funding does indeed remain.


Groups that support abortion rights, as well as independent fact checking organizations, say the law most definitely does not allow for federal funding of abortion.

"The Senate bill states very clearly that public funding through tax credits and government subsidies for elective abortion services offered in the exchange is prohibited," the independent PolitiFact wrote in March 2010. "But more than that, the bill sets up a mechanism to ensure that abortion services offered in the exchange are paid entirely from patient premiums, premiums paid by people who have chosen a private plan that covers abortion." [Politico, 1/20/11]

Posted In
Health Care, Reproductive Rights
Wall Street Journal
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