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Washington Post: House Democrats Admit Hyde Doesn’t Apply to New ‘Medicaid-like’ Program

Rep. Pramila Jayapal, (D., Wash.) speaks during a hearing of the House Judiciary Subcommittee on Antitrust, Commercial and Administrative Law on “Online Platforms and Market Power” on Capitol Hill, July 29, 2020. (Mandel Ngan/Pool via Reuters)

Washington Post reporter Rachel Roubein writes today in the “Health 202” newsletter (emphasis added):

In yesterday’s Health 202, we wrote that since congressional spending bills still include the Hyde amendment, it’s possible the restrictions on federal funding for abortions could still apply to a new federal Medicaid program being weighed by congressional Democrats for their social spending bill.

It’s not yet clear what a final package would look like. However, the Energy and Commerce Committee — which advanced a Medicaid proposal — does not believe Hyde restrictions under current law would apply to the new Medicaid program, according to a committee spokesperson. That’s because as the legislation is currently written, the new Medicaid program would not be subject to annual appropriations, but rather contain its own appropriations. 

National Review has been reporting since July that the congressional Democrats’ proposed “Medicaid-like” program would provide taxpayer funding of elective abortion because it would be fully funded by the federal government “outside of the annual appropriations bill that funds the Medicaid program and has for many years included the Hyde amendment.”

But today’s report in the Post may be the first time that congressional Democrats have admitted on the record that the new “Medicaid-like” program in twelve states that didn’t expand traditional Medicaid would fund elective abortion.

Pramila Jayapal, leader of the Congressional Progressive Caucus, falsely claimed on CNN on Sunday that “none of the dollars” in the House Democrats’ $3.5 trillion reconciliation bill would be spent on elective abortions.

Democrat Raphael Warnock of Georgia, chief sponsor of the Medicaid-expansion legislation in the Senate, dodged the question when asked by National Review if the new program would fund abortions. “The bill addresses health care. Next question,” Warnock said in July. Does Warnock think health care includes abortion? “Next question,” Warnock replied, refusing to answer a second time. When Warnock was talking to reporters in the Capitol in September, I asked him the same question. He went silent.

As National Review previously reported, the new Medicaid-like program isn’t the only way the House Democrats’ reconciliation bill would fund abortion: 

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.

So, if Manchin really means that “the Hyde amendment is a red line” for him and Democrats want to pass reconciliation, what can they do? They appear 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.

Option 2 could involve keeping the Medicaid expansion population on the Obamacare plans that cover 99 percent of all costs rather than standing up a new “Medicaid-like” program:

Politico reports that another option under consideration is “allowing low-income adults to get free private coverage through Obamacare’s insurance marketplaces.”

When Obamacare passed in 2010, it subsidized insurance plans that cover elective abortions (and still does), but it also gave states the ability to pass laws applying the Hyde amendment to all of the health-insurance plans offered on respective Obamacare exchanges. None of the twelve states that declined to expand Medicaid offers elective-abortion coverage in their taxpayer-subsidized Obamacare exchanges. So expanding Obamacare coverage in only those states would not result in taxpayer funding of elective abortion.

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