Politics & Policy

Yes, the House Democrats’ Reconciliation Bill Would Fund Elective Abortions

Left: Rep. Pramila Jayapal; Right: Sen. Joe Manchin (Mandel Ngan/Pool; Joshua Roberts/Reuters)
The leader of House progressives falsely claims ‘none of the dollars’ in reconciliation would pay for abortion.

West Virginia Democratic senator Joe Manchin is holding the line and insisting that any new reconciliation bill passed by Congress will not be used to fund elective abortions.

“The Hyde amendment is a red line,” Manchin told CNN’s Manu Raju on Monday.

Manchin’s “red line” comment about the Hyde amendment — a measure that prohibits federal funding except in cases in which the pregnancy endangers the mother’s life or was caused by an act of rape or incest — comes less than a week after he told National Review that the Hyde amendment “has to be” on the reconciliation bill.

National Review: Senator, you’ve been very firm on keeping the Hyde amendment on the appropriations bills. Are you concerned about that issue at all in reconciliation —

Manchin: Certainly —

NR: — with this new Medicaid program?

Manchin: Yeah, we’re not taking the Hyde amendment off. Hyde’s going to be on.

NR: In the new Medicaid program?

Manchin: It has to be. It has to be. That’s dead on arrival if that’s gone.

While Manchin is digging in, his Democratic colleagues are squirming.

On Sunday, Senate majority whip Dick Durbin — the man responsible for counting votes in the upper chamber — was asked if he would vote for a reconciliation bill that included the Hyde amendment.

“I have voted for both in the past, because I have to measure it against the value of the package itself,” Durbin told CNN’s Dana Bash. “I don’t want to let the entire package break down over that issue.”

“Okay,” the CNN anchor replied, “I take that as a yes.”

But when Congresswoman Pramila Jayapal, the leader of the Congressional Progressive Caucus, was asked on the same CNN program if she could vote for a reconciliation bill that includes the Hyde amendment, she answered: “No.” Jayapal then made two false statements.

First, she claimed, contrary to public polling, that the “Hyde amendment is something that the majority of the country does not support.”

Second, Jayapal claimed that “none of the dollars” in the reconciliation bill could be spent on elective abortions.

Jayapal is wrong on that second point — more on that in a minute — but it’s worth stopping for a moment and taking what she’s saying at face value. If Jayapal genuinely believed there’s no funding for abortion in the reconciliation bill, then why would she kill it because of an amendment saying none of the funds could be used for elective abortion? Is the leader of the Congressional Progressive Caucus really threatening to kill $2 trillion in social spending because of an amendment she believes is a redundancy?

Jayapal elaborated on her views during a podcast hosted by former Obama administration officials. “The Hyde amendment is the law,” Jayapal said. “I would like to repeal it, but I’m not suggesting we put the repeal into this [reconciliation] bill. What I am saying is that the Hyde amendment is already law, so why would we add it into the bill as a political statement when it’s already the law?”

Jayapal seems to be arguing that the Hyde amendment is a permanent law that applies to all federal funds. But that is not true.

In the context of the traditional Medicaid program, the Hyde amendment is a budget rider attached each year to the Labor-HHS appropriations bill.

What’s not quite clear is whether Jayapal honestly misunderstands how the Hyde amendment works or if she is deliberately misrepresenting how the Hyde amendment works. Evidence for the latter is this report in Esquire on Manchin’s Hyde comments: “I later dropped this tidbit to a Democratic member of Congress who reacted as though I’d handed over a copperhead. This is indisputably a landmine in the ongoing negotiations, as the progressive caucus has made eliminating the Hyde Amendment one of the primary ancillary policy goals of the reconciliation bill.”

Whether or not Jayapal made an honest mistake, it is indisputably true that the current iteration of the House Democrats’ $3.5 trillion reconciliation bill would fund abortion in several different ways.

It includes a new “Medicaid-like” program — administered entirely by the federal government — in the twelve states that did not expand Medicaid under the Affordable Care Act. The new program is fully funded by the federal government outside of the annual Labor-HHS appropriations bill that funds the traditional Medicaid program and has for many years included the Hyde amendment. According to judicial precedents, any federal health-care program that does not explicitly prohibit federal funding of elective abortion must fund all legal abortions.

But this isn’t the only way the House Democrats’ reconciliation bill would fund abortion, as I reported last month:

Because the new Medicaid program in these twelve states wouldn’t be up and running until 2025, the bill would, starting in 2022, make these low-income individuals eligible for Obamacare plans that the government would subsidize to the tune of 99 percent of the actuarial value of medical expenses (up from 94 percent under current law).

Obamacare plans in these twelve states do not currently cover taxpayer funding of abortion — the Affordable Care Act allowed states to prohibit elective abortion coverage in their exchanges — but the House Democrats’ bill appears to do an end run around that prohibition, too, starting in 2024.

The language in the House Energy and Commerce bill is convoluted, but it is hard to see how it isn’t designed to fund abortions in the Obamacare exchanges in the twelve states that didn’t expand Medicaid. The House reconciliation bill would require funding for family-planning services “which are not otherwise provided under such plan[s]” in Obamacare. The Affordable Care Act already requires plans to cover all FDA-approved contraceptives with no co-pay or cost-sharing, but as HealthCare.gov notes: “Plans aren’t required to cover drugs to induce abortions.” So family-planning services “not otherwise provided” means abortion.

These aren’t the only ways the House Energy and Commerce Committee bill would fund abortion. It also includes funding starting in 2024 for “non-emergency medical transportation services,” which could mean that enrollees could be transported at taxpayer expense for an abortion at any point in pregnancy. And it includes “public health” funding that could be used to train doulas and others to assist or perform elective abortions.

The Energy and Commerce Committee hearing provided some clarity about the convoluted language in the bill: The counsel to the Democratic majority on the committee confirmed that the Hyde amendment does not apply to this provision.

“In Medicaid, the Hyde amendment applies to the language that you just read,” Congresswoman Cathy McMorris-Rodgers said at the Energy and Commerce Committee markup on September 14. “Does Hyde apply to family planning in the context of the proposed bill?”

“The restrictions and limitations included in the most recently enacted appropriations language would not apply to the provisions under this section,” the counsel to the Energy and Commerce Committee replied. (The relevant exchange begins at about the 9:35:00 mark and ends at the 9:38:00 mark in this video).

So, if Manchin holds firm on the issue, how will congressional Democrats pass a new reconciliation bill? They seem to have two options.

Option 1: Senate Democrats could explicitly include the Hyde amendment in the reconciliation bill. This has been done before. The Senate parliamentarian has typically held that the Hyde amendment is subject to 60 votes in reconciliation, but the 60-vote threshold is required only if a senator raises a point of order. In 1997, when Congress created the Children’s Health Insurance Program through a reconciliation bill, Democratic senator Patty Murray’s point of order was withdrawn, and the Hyde amendment was permanently attached to the program.

Option 2: Senate Democrats could route all relevant funds through funding streams to which the Hyde amendment will be applied. For example, rather than creating a new “direct appropriation” for the new Medicaid-like program, the funding would come from the Labor-HHS appropriations bill to which the Hyde amendment will apply. If any relevant funds in the reconciliation bill can’t be rerouted through Hyde-protected programs or appropriations bills, they could be stripped out and taken up during the normal appropriations process.

It’s not entirely clear which option congressional Democrats might choose, but if their 50th vote in the Senate really means that the “Hyde Amendment is a red line” for him, they will need to choose one.

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