(UPDATE and CORRECTION) White House Crafting Deal with Stupak on Executive Order

UPDATE: 11:59 am: Stupak and colleagues have canceled their noon press conference.

This article was updated at 11:25 am on Sunday, March 21st to reflect further information and analyses on the executive order being crafted by the White House to placate Stupak.  We will do further analysis later today, tonight and tomorrow.

To close the deal on a health care bill that, if passed tonight, will impose the greatest restrictions on women’s rights to choose whether or not to carry an unwanted pregnancy to term since before Roe v Wade, the White House is now negotiating a deal with Michigan Congressman Bart Stupak, an anti-choice Democrat, to sign an executive order on the Hyde Amendment.

The Hill reports that Stupak said Sunday morning he is “close to striking a deal with the Obama administration on abortion provisions.”

“We are close to getting something done,” Stupak said in an interview with MSNBC.

The Senate bill, upon which the House will vote this evening, contains the so-called Nelson language (after Senator Ben Nelson, D-NE), which among other things forces women to write separate checks for coverage of abortion care, mandates what public health data insurance companies can or can not include in costing abortion care, and also allows states to forbid abortion coverage in their health plans. As reported earlier on RH Reality Check, expert analyses have concluded that the Nelson language will result in the disappearance of abortion coverage in the private insurance market.

But Bart Stupak has wanted a complete ban in abortion coverage even in private insurance coverage, in effect preventing women from spending their own funds on coverage for abortion care, coverage that some 87 percent of women covered by private insurance now have. 

Stupak claims the Democrats do not have the votes in the House without a deal that placates him.

During the Presidential campaign, the Obama campaign provided the following statement on its position on the Hyde Amendment to RH Reality Check:

Obama does not support the Hyde amendment. He believes that the federal government should not use its dollars to intrude on a poor woman’s decision whether to carry to term or to terminate her pregnancy and selectively withhold benefits because she seeks to exercise her right of reproductive choice in a manner the government disfavors.

Repealing the Hyde Amendment has been a long-term goal of the pro-choice community because it creates a huge burden on low-income women facing unintended and unwanted pregnancies.

Laws passed by Congress and signed by the President can not be superceded by Executive Order.  Therefore, analysts are mixed on the implications of an Executive Order on Hyde and of course much depends on the actual language of the Order, which Stupak says he will reveal today at noon.

On Daily Kos this morning, Bronx Family Doctor states:

Many argue that it is simply a reiteration of current law; after all, we have had the Hyde Amendment banning such funding (except in the case of rape, incest, or the life of the mother) for over 30 years.  What’s the big deal?

The fact is, this is a very big deal.  Although the Hyde Amendment is repeatedly renewed, it is not a law on the books per se.  It must be renewed each year as part of the budget.  This means that every year we have the opportunity to get rid of it (although we have as yet been unsuccessful).  An executive order, in contrast, would put these provisions on the books until it is rescinded.  It is much harder to rescind an executive order than to change language that must be inserted in the budget yearly.  Really, what president would stick his neck out for the 1/3 of women who will need abortions?  If we are to be guided by history, nobody.

But another analyst for the pro-choice community, speaking off the record, notes that:

The president has a Constitutional obligation to faithfully execute the laws. The Hyde Amendment isn’t law per se, but it focuses on budgetary matters which makes it hard to have a standing law. If Congress allocates funds, the President lacks the authority to not spend them. It’s a classic Constitutional law question. So the real reason it’s never been an executive order is that there’s never been a threat that congress would allocate funds for Medicaid/Tricare/HIS/FBOP to go towards abortion care. Now if Obama issues the order, and then Congress does not include the Hyde Amendments, then he can merely rescind it. There has been no traction in reversing Hyde and I just don’t see it getting better in the short-term.

And on Twitter, Devbost wrote:

This is mostly for show. An executive order can’t extend the duration of a statute. That’s for Congress, not the WH.

The pro-choice community analyst, speaking off the record, says however,

Stupak and the USCCB are probably unclear about how the global gag rule worked and believe too strongly in the power of executive orders. It just doesn’t add up.

Still there are symbolic elements to this that are far more serious than the practical implications. If the President didn’t want to spend money in Iraq but he signed a bill that authorized the DOD to spend $X amount of dollars, he can’t stop it with an Executive Order. Same goes for Hyde.

Various outlets are reporting that Stupak will disclose the language of his executive order by noon today.

Further analysis to come tonight and tomorrow.

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  • leftcoaster

    He has resisted issuing an executive order to halt “Don’t Ask/Don’t Tell” during a period of TWO military conflicts, when regional language specialists are beind discharged, because he believes Congress needs to work on that.

    But when it comes to getting his healthcare garbage bill passed, he’ll put in an executive order to cement the Hyde language, which is effectively an identical provision to DADT –  not “law,” per se, but standing policy.

  • belker


    – – – – – – –


    By the authority vested in me as President by the Constitution and the laws of the United States of America, including the “Patient Protection and Affordable Care Act” (approved March __, 2010), I hereby order as follows:

    Section 1. Policy.
    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.

    Numerous executive agencies have a role in ensuring that these restrictions are enforced, including the Department of Health and Human Services (HHS), the Office of Management and Budget (OMB), and the Office of Personnel Management (OPM).

    Section 2. Strict Compliance with Prohibitions on Abortion Funding in Health Insurance Exchanges. The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014. The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered) and requires state health insurance commissioners to ensure that exchange plan funds are segregated by insurance companies in accordance with generally accepted accounting principles, OMB funds management circulars, and accounting guidance provided by the Government Accountability Office.

    I hereby direct the Director of OMB and the Secretary of HHS to develop, within 180 days of the date of this Executive Order, a model set of segregation guidelines for state health insurance commissioners to use when determining whether exchange plans are complying with the Act’s segregation requirements, established in Section 1303 of the Act, for enrollees receiving Federal financial assistance. The guidelines shall also offer technical information that states should follow to conduct independent regular audits of insurance companies that participate in the health insurance exchanges. In developing these model guidelines, the Director of OMB and the Secretary of HHS shall consult with executive agencies and offices that have relevant expertise in accounting principles, including, but not limited to, the Department of the Treasury, and with the Government Accountability Office. Upon completion of those model guidelines, the Secretary of HHS should promptly initiate a rulemaking to issue regulations, which will have the force of law, to interpret the Act’s segregation requirements, and shall provide guidance to state health insurance commissioners on how to comply with the model guidelines.

    Section 3. Community Health Center Program.

    The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program. Existing law prohibits these centers from using federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language. Under the Act, the Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers under section 10503 and all other relevant provisions. I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law. Such actions should include, but are not limited to, updating Grant Policy Statements that accompany CHC grants and issuing new interpretive rules.

    Section 4. General Provisions.
    (a) Nothing in this Executive Order shall be construed to impair or otherwise affect: (i) authority granted by law or presidential directive to an agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
    (b) This Executive Order shall be implemented consistent with applicable law and subject to the availability of appropriations.

    (c) This Executive Order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees or agents, or any other person.