The Truth About the Capps Amendment


This article was originally published on Huffington Post.com

Enacting comprehensive health insurance reform is no easy task – if it was, we’d have done it decades ago. Making it more difficult is the blatant misinformation being spread by some opponents of reform as well as people who perhaps just don’t know better. A case in point is the House health reform bill’s provision continuing the policy of restricting the use of federal funds to pay for abortions. There is a lot of misinformation about this provision, some of it probably the result of honest mistakes and some of it based on outright fabrications.

In an attempt to try to find a compromise for dealing with abortion services in the legislation, I offered an amendment that would essentially continue this ban – even though I personally oppose the Hyde Amendment – that was supported by Energy and Commerce Committee Members whose records span the pro-life and pro-choice spectrum. Our hope was that we could continue the current ban on federal funding for abortion so the issue wouldn’t bog down the overall health reform legislation.

Unfortunately many — from politicians to pundits — misunderstand or intentionally misrepresent my amendment as a significant departure from current law. This couldn’t be further from the truth. In fact, many independent fact checkers and even the non-partisan Congressional Research Service have found the amendment preserves the status quo in federal abortion policy.

As I mentioned earlier, under my amendment no federal funds may be used to pay for abortions that are not allowed by current law (the Hyde Amendment, which makes exceptions in the case of rape, incest, or to protect the life of the woman). The only funds that may be used to pay for other abortion services are from private funds generated by the policyholders’ premiums, whether the policyholder is covered by a private plan or the public option.

My amendment ensures that no doctor or hospital or even insurance plan can be required to participate in providing or covering abortion services. In fact, my amendment goes beyond current law in this regard. Currently, existing statute known as the "Weldon Amendment" prohibits the government from discriminating against health providers and insurance companies who refuse to perform or pay for abortions. My amendment extends that to ensure that no private insurance plan operating in the Exchange may discriminate against health providers who refuse to perform abortions.

My amendment also ensures that in each region of the country, there is at least one plan in the Health Exchange that offers abortions services but also one plan in the Health Exchange that does not offer abortion services. This actually gives consumers who object to participating in a plan that covers abortion and are getting coverage through the Exchange a choice of insurance coverage greater than what most Americans have in the current employer-based health insurance market. Today, nearly 90 percent of employer-sponsored private health insurance plans cover abortion services.

Some people have gone so far as to claim my amendment would mandate abortion coverage in all insurance plans. This is simply untrue. My amendment specifically prohibits abortion from being included as part of the essential benefits package.

No one – not the Secretary of Health and Human Services nor the Health Benefits Advisory Committee – can make abortion a part of the essential benefits package.
Private plans participating in the Exchange can choose to provide coverage for abortion or they can choose not to. And while the Secretary may choose to allow the public plan to cover abortions not allowed by the Hyde Amendment, coverage for those services must be paid for with segregated private funds. No Federal funds may be used. Importantly, while opponents of the bill’s provision make much ado about the idea of segregating funds, it’s hardly a new concept: the 17 states that currently cover abortion in their Medicaid programs already do it by only paying for those services with state dollars, which are kept separate from federal funds.

Having worked on public health issues most of my life I understand the strong beliefs generated by choice issues. But having strongly held beliefs doesn’t give one license to distort the facts at hand. My amendment offers a common ground solution to a very challenging policy question – namely how do we deal with abortion services in health reform legislation. By adhering to current law which prohibits Federal funds from being used to cover abortions other than in the case of rape, incest or a threat to the life of the woman, we have found a way to move forward in our efforts to protect and provide health insurance for millions of Americans without being sidetracked by re-debating the issue of abortion.

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To schedule an interview with contact director of communications Rachel Perrone at rachel@rhrealitycheck.org.

  • douglasjohnson

    I am the legislative director for the National Right to Life Committee (NRLC). Misleading statements and exercises in misdirection fall like autumn leaves in this essay by Rep. Capps, and to correct them all would require a piece longer than her original. But allow me to focus first on this statement: "And while the Secretary [of Health and Human Services] may choose to allow the public plan to cover abortions not allowed by the Hyde Amendment, coverage for those services must be paid for with segregated private funds. No Federal funds may be used."

     

    This argument is beyond misleading — it is truly absurd. As a matter of law, and in the terminology used throughout the government, all of the funds that would be spent by the public plan would be federal funds, public funds. Rep. Capps and the others who are exerting themselves in the ludicrous exercise of attempting to label government agency spending as "private" are doing so for a transparently political purpose: To conceal the reality that H.R. 3200 would establish direct federal government funding of elective abortion by the government insurance plan, and would also result in large-scale federal subsidies for private health plans that pay for elective abortions. Both of those effects would be sharp departures from longstanding federal policy.

     

    The Capps-Waxman Amendment explicitly authorizes the Secretary of HHS to pay for elective abortions, any abortions, under the government plan. The public plan would be a program within the Department of Health and Human Services (DHHS), part of the federal Executive Branch, headed by the Secretary of HHS. Under the Capps-Waxman Amendment, abortion providers would send their bills to DHHS. They would receive in payment checks drawn on a federal Treasury account, which are federal funds, public funds.  This would be direct federal government funding of elective abortion.
    This is not a matter of opinion. It is a matter of law.

     

    With few exceptions, funds under the control of and expended by an agency of the federal government cannot accurately be described as "private funds." For example, the funds in a citizen’s bank account are private, but once he or she writes a check to the IRS to pay income taxes, the funds become federal government funds, public funds, deposited in a U.S. Treasury account. The same is true here. Once a public plan enrollee makes a "premium" payment to DHHS, the funds are no longer "private" — they are federal government funds, as truly and completely as the funds that the government gathers from income taxes, user fees, fines, and other sources.

     

    NRLC has issued a memorandum proving that all of the funds that would be expended by the "public option," and also all of the funds that would flow to the premium-subsidy program, would be in fact "federal funds," both as a matter of law, and in the usage of those terms by and about federal agencies across the board. The memorandum contains links to primary documents from the CBO, GAO, and the nonpartisan Congressional Research Service.) It is here:
    http://www.nrlc.org/AHC/NRLCmemoFederalFundsnotPrivateFunds.html

     

    Capps claims that H.R. 3200 and her amendment preserve the "status quo," the Hyde Amendment. She neglects to mention, as the nonpartisan Congressional Research Service has confirmed, that none of the funds that will be spent by the public plan, and none of the funds that will be collected by and spent through the proposed premium subsidy program, will be appropriated through the annual HHS appropriations bill. Therefore, the Hyde Amendment will not apply to the public plan or to the premium subsidy program. Continued references to the Hyde Amendment by President Obama, Capps, and others, as if the Hyde Amendment would control the public plan or the premium-subsidy program, are an exercise in misdirection. The documentation is here:
    http://www.nrlc.org/AHC/NRLCmemoHydeAmendmentWillNotApply.html

     

    Capps’ comparison between the federal subsidies for abortions under the bill, and some states currently paying for abortions under Medicaid, really makes no sense at all. Each of us live under two sovereigns — the federal government, and a state government (unless one lives in a federal enclave). Under the Hyde Amendment, no federal funds may flow to any trust fund that covers any abortions (except life of the mother, rape, or incest). But of course this does not prevent a state from setting up its own program to pay for abortions for people who are Medicaid-eligible, or for anybody else. Nor would the NRLC-backed Stupak Amendment to H.R. 3200, which would prevent federal subsidies for abortion, prevent states from setting up their own programs to pay for abortions or abortion insurance. This really has nothing to do with the subject of the current debate, which is whether elective abortion should be part of the proposed FEDERAL public insurance plan and whether private insurance plans that cover elective abortion should receive FEDERAL subsidies.

     

    Moreover, the Capps-Waxman Amendment is booby trapped in a manner that ensures that if renewal of the Hyde Amendment is blocked for a future fiscal year — a definite possibility, since President Obama opposes the Hyde Amendment — this would automatically extend an abortion mandate to the public plan. A lapse in the Hyde Amendment would also effectively remove the Capps requirement — which she makes out to be a great concession — that there must be "one plan in the Health Exchange that does not offer abortion services." And, of course, a lapse in the Hyde Amendment would result in a resumption of federal funding of abortion on demand in Medicaid, a program in which the federal government was paying for 300,000 elective abortions annually when the Hyde Amendment was first passed in 1976.

     

    Finally, I wonder how many of those who want you believe that the federal Department of Health and Human Services would be spending "private funds" on elective abortions through the public option, would also embrace the notion that other federal agencies — say, the CIA, or the Pentagon — could expend federal Treasury funds in transactions that would be considered "private."

     

    Douglas Johnson

    Legislative Director

    National Right to Life Committee

    Washington, D.C.

    More documentation here: http://www.nrlc.org/ahc

  • jodi-jacobson

    I am not sure what you don’t understand about the federal funds subsidizing a small proportion of people or services within an otherwise privately paid for program?

    Lawmakers who wrote and voted on the amendment don’t agree with you so I don’t know where you are getting your analysis.

    Jodi

  • julie-watkins

    I personally oppose the Hyde Amendment

    I wish it never passed and I wish it had a time limit so it would have to be debated again and then not pass. Really, I wish there weren’t abortion laws. It’s my opinion that any legislation that singles out abortion is society enforcing nature’s sexism for sexist and classist reasons (sometimes unconsciously). I believe there should be no abortion laws, that medical matters should be guided by medical standards — that’s the way it is in Canada. I think that’s more civilized. I don’t like it when laws make women and poor people second class citizens.

  • douglasjohnson

    It appears that you are conflating two different provisions:  The "public plan," and the premium-subsidy program.  They are separate and distinct, and they must be analyzed separately.  This discussion pertains to the House bill (H.R. 3200).


    As I have explained, and as is thoroughly documented in the linked materials, the "public plan" is the federal government and nothing but the federal government.  It is as completely a federal government entity as the CIA or the IRS.  All of the funds that it will hold will be federal funds.  All of the funds that it will spend will be federal funds.  This is not a matter of opinion.  That is what "federal funds" means, in law, and as the term is used throughout the government.  The notion that this program within the federal Department of Health and Human Services (DHHS) could spend "private funds" for abortions is ludicrous, a political hoax.  In reality, abortionists would send their bills to DHHS, and receive direct payments for the abortions, drawn on the federal Treasury.  This would be federal government funding of elective abortion, as simple and direct as it can be.


    Now let us turn to the proposed premium subsidy program, intended to help tens of millions of Americans buy health insurance.  Funds for these subsidies will be kept in the "Health Insurance Exchange Trust Fund," which is an account in the U.S. Treasury, created by the bill for this purpose.  The funds in the Trust Fund are federal government funds.  The Trust Fund will be administered by the "Health Choices Commissioner," a new federal office created by the bill.  Under the bill, when a person who qualifies for the new subsidy enrolls in the public plan, the subsidies will be sent by the Health Choices Commissioner from the Health Insurance Exchange Trust Fund to the Secretary of HHS [see p. 129 of H.R. 3200], who is the official in charge of the public plan [see pp. 12, 118 of the bill].  When a person who qualifies for subsidies chooses to purchase private health insurance, the subsidies will be sent from the Trust Fund to the private insurer.

     


    H.R. 3200 provides that the premium subsidy program will be funded entirely by general funds from the Treasury, as well as special new taxes.  As the August 28 Congressional Research Service memo explains, the bill "appropriates to the Fund amounts equal to three specified taxes . . . In addition, Section 207(c)(2) appropriates to the Fund amounts equal to the difference between the payments made from the Fund . . . and the amounts from the three specified taxes."  In other words, whatever amount is spent from the Fund that is not covered by the special taxes will be paid from general revenues.

     

    Thus, all of the funds that flow into the Trust Fund are "federal government funds," as that term is used by the Government Accountability Office and the Congressional Budget Office.  Once the money is in the new Trust Fund, the funds are still "federal government funds" as the GAO defines the term.    Dennis G. Smith, formerly director of the federal Center for Medicaid and State Operations in DHHS (now Senior Fellow in Health Care Reform, Center for Health Policy Studies, the Heritage Foundation), explained:  "The Individual Affordability Credits (premium subsidies) are clearly federal funds.  An individual applies to the federal Health Choices Commissioner for the credit; the Commissioner determines the individual’s eligibility; the Commissioner then pays the qualified health plan.  In reality, when the Commissioner plays this role, there is no distinction between ‘private’ and ‘public’ funds, they are all public." (Communication to NRLC, September 7, 2009)


    H.R. 3200 with the Capps Amendment explicitly allows the tax-generated funds in the premium subsidy program to go to private plans that cover abortion on demand.  This would be a drastic departure from the status quo, because under current law, federal funds do not flow into health plans that cover abortions, except to save the life of the mother, or (in some programs) cases of rape or incest.  This currently applies, for example, not only to Medicaid and the military, but also to the health plans that cover members of Congress and their staffs — as Kathleen Sebelius herself pointed out in a letter submitted to the Senate on April 2, 2009, during her confirmation process, in which she wrote, "Most private plans do not cover abortion services except in limited instances, but do cover family planning, and Congress has limited the Federal Employee Health Benefit Plan to covering abortion services only in cases of rape or incest, or when the life of the mother is in danger.”

     

    You wrote, "Lawmakers who wrote and voted on the amendment don’t agree with you . . ."  The Capps Amendment was actually written by Congressman Henry Waxman (D-Ca.), chairman of the House Energy and Commerce Committee, and his veteran staff, and was then delegated to Rep. Capps. The members of the committee with pro-abortion records voted for the amendment, without exception.  The members of the committee with pro-life records voted against the amendment, with one exception.   I think that Congressman Waxman understands perfectly well what his amendment does.  

     


    Both Waxman and Capps are faithful allies of the abortion lobby, and they are working hard to try to smuggle into law provisions that would result in federal subsidies for abortion, in two big new government programs, thereby reversing decades of federal policies that they have always opposed.  They know very well that if they describe their provisions in candid terms, they will not be enacted.  A Public Opinions Strategies poll, released September 10, asked, "As part of this proposed public plan, if the government paid for abortions would this make you more likely or less likely to support the President’s proposed health plan, or would it make no difference to your opinion one way or the other?"  43 percent were "less likely," and 8 percent were "more likely."  Other questions in the poll brought similar results. 

     

    Note that these were abortion-specific questions, unlike the phony Mellman Group poll released July 6, cited often on this site, that mixed abortion with other issues and mischaracterized the position of the pro-life side in the debate.

     

    Douglas Johnson
    Legislative Director
    National Right to Life Committee
    Washington, D.C.
    Legfederal–at–aol,dot,com

  • jodi-jacobson

    Douglas:

    You state:

    As I have explained, and as is thoroughly documented in the linked materials, the "public plan" is the federal government and nothing but the federal government. It is as completely a federal government entity as the CIA or the IRS. All of the funds that it will hold will be federal funds. All of the funds that it will spend will be federal funds. This is not a matter of opinion. That is what "federal funds" means, in law, and as the term is used throughout the government. The notion that this program within the federal Department of Health and Human Services (DHHS) could spend "private funds" for abortions is ludicrous, a political hoax. In reality, abortionists would send their bills to DHHS, and receive direct payments for the abortions, drawn on the federal Treasury. This would be federal government funding of elective abortion, as simple and direct as it can be.

    Quite unfortunately, no one is talking about enabling the public plan as you describe it above to fund abortion, at least not outside the purview of those limited instances in which Medicaid-funded abortions are allowed for indications allowed under existing law.

    This is a red herring and it is a stretch of reality to think this will happen.  As someone who has worked on a considerable number of pieces of legislation and as you must know, the language in the bill will be clarified both in report language and in operational guidelines to comport with existing restrictions.

    This is a created reason not to support health reform, and i won’t even take on your position against women’s rights, choices, and lives.

    Insofar as the subsidy goes…please don’t insult my intelligence.  There is again, and unfortunately, ample evidence of the use of segregation of funds as required by your own congressional allies (Chris Smith, anyone?) for the purpose of crippling women’s health and their access to reproductive health care.  The fact that someone in a huge system might receive a subsidy to be able to get health care for themselves and their family–thereby saving many lives–does not mean that those federal funds are supporting abortion.

    But maybe we are not interested in saving those lives?  Like the little boy, whose death still haunts me, who died of a thoroughly preventable infection caused by a thoroughly treatable dental condition, but whose mother did not have either insurance or funds?  On behalf of these people you are holding up health care?  Or did we stop caring about him after he exited the womb?

     

  • jodi-jacobson

    Dear Readers,
    I have deleted here a comment by "NoWorseThanUsual." The same material in the same form with the same intention has been cut and pasted in numerous areas on numerous posts on the site and is now being considered spam.

    We rely on our commenters to write original comments based on their own thinking and arguments and not to just repeatedly cut and paste the same material in numerous places on the site.

    Thank you.

  • noworsethanusual

    Actually, you know, that is not true.  About half of today’s parody was entirely new, written a fever of inspiration this morning, drawing directly on phrases found for the first time in the Congresswoman’s blog here.  This new parody was the mock speech given by "Congressman Capped," employing Capps utterances which were not part of the earlier parody.  The earlier piece was a press release announcing the introduction of the bill by "Congressman Capped."  So about half of the two pieces overlapped, but no more so than the congresswoman’s blog here itself repeats paragraphs and arguments from earlier pieces she has circulated, some of which I think have been published here as well. If my parody is spam, then so is her piece. I think either you did not actually read the new parody, or more likely, somebody on the congresswoman’s staff called to complain and you complied.  Did that happen?

  • douglasjohnson

    Jodi Jacobson wrote:  "Quite unfortunately, no one is talking about enabling the public plan as you describe it above to fund abortion, at least not outside the purview of those limited instances in which Medicaid-funded abortions are allowed for indications allowed under existing law.  This is a red herring and it is a stretch of reality to think this will happen.  As someone who has worked on a considerable number of pieces of legislation and as you must know, the language in the bill will be clarified both in report language and in operational guidelines to comport with existing restrictions."

     

    I am really amazed that you assert that "no one is talking about enabling the public plan" to fund elective abortions.  The Capps-Waxman Amendment is explicit as it can be on this point, and, if enacted, it will be the law — not subject to being overridden by "operational guidelines" or "report language."  The Capps-Waxman Amendment says, on page 2, lines 9-12, that "nothing in this Act shall be construed as preventing the public health insurance option from providing for or prohibiting coverage of" elective abortions.  (In addition, for the public plan, coverage of abortions that are Medicaid-covered at any given time is not only authorized, but mandated.)


    That’s why FactCheck.org wrote, in its report "Abortion:  Which Side is Fabricating" (August 21): "But it’s equally true that House and Senate legislation would allow a new ‘public’ insurance plan to cover abortions, despite language added to the House bill that technically forbids using public funds to pay for them. Obama has said in the past that "reproductive services" would be covered by his public plan, so it’s likely that any new federal insurance plan would cover abortion unless Congress expressly prohibits that."  http://www.factcheck.org/2009/08/abortion-which-side-is-fabricating/


    It is also noteworthy that on September 11, Politifact examined in detail, and rated as "True," the following statement by House Republican Leader John Boehner (R-Oh.):  "During his quest for the presidency, now-President Obama declared that everyone deserves access to reproductive health care that includes abortion, and vowed that this ‘right’ would be at the heart of his health care reform plan if elected president."  http://www.politifact.com/truth-o-meter/statements/2009/sep/11/john-boehner/boehner-says-abortion-access-was-always-key-goal-o/

     

    Douglas Johnson

    Legislative Director
    National Right to Life Committee
    Washington, D.C.

  • catseye71352

    He’s getting his "analysis" out of a random orifice3, of course, and he’s angry that this fact is being recognized.

     

    Catseye  ( (|) )

  • noworsethanusual

    Jodi, you jumped the gun in assuming it was the same material, when it was really a new parody tailored to the new Capps piece.  I spent at least half an hour on it and my feelings are hurt that you thought it was not original. Do the rules here allow appeals?  If so, I appeal to you to reverse your ruling.  Does anybody else out there want to read the little parody speech by "Congressman Capped" about his plan to authorize the federal government to use "private funds" (a mandatory surcharge for all admissions to the national parks) to subsidize a new "Handguns for Hikers" program?  Does anybody else think a deletion on such a faulty premise, of a piece making fun of a powerful politician, is sort of fishy?

  • jodi-jacobson

    But no, Congresswoman Capps’ office did not notice your comment and did not call, and I can assure you we do not delete comments due to pressure, but rather according to our clearly articulated guidelines. And as editors, we regularly monitor comments and flag those that are troublesome, repetitive, violent, profane, inane, not pertinent, and so forth.

    RHRC is an extremely open site. On many other sites, such as the NYT and elsewhere, your comments would not see the light of electronic day. We allow a great deal of freedom to comment here, notwithstanding the outline above.

    At this point, your comment is being deemed spam because it is repeated in numerous other posts elsewhere, does not make any new points and does not further the argument or discussion in any way.  We have a duty at some point to the other readers and commenters to reduce the amount of scrolling through the same thing on every post.   You may have changed a few words, I really don’t have the time to read and do a word search on every single one of these posts. I considered it spam for the very reasons I articulated.

    Thanks.

     

    Jodi

  • noworsethanusual

    All right.  As I understand it, then, it was all right to post a parody about the Capps Amendment in a thread about the Capps Amendment, the first time, but not all right to repeat the same parody, or even something that looked to you, at a glance,  a lot the same.  I think I understand.  There should be no objection, then, if somebody wants to take the trouble to go read my parody back in the space that it originally occupied, prior to the perceived repetition, which is here:

    http://www.rhrealitycheck.org/commonground/2009/08/10/common-ground-%E2%80%9Cabortion-neutrality%E2%80%9D#comment-28930

  • jodi-jacobson

    to your providing the link.

    Jodi