Monday, May 18, 2020

Pro-Life Analysis of the HEROES Act (H.R. 6800)

Some items of note from H.R. 6800, the
Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act:


UNDERLYING BILL TEXT:

Division A, Title III
—Financial Services and General Government (FSGG)
—Coronavirus State Fiscal Relief Fund and Coronavirus Local Fiscal Relief Fund (pp. 22-33)

These two relief funds, which lack clear pro-life protections, appropriate $540 billion for states and $375 billion for local governments to respond to and replace lost revenues due to COVID-19. It is unclear whether the funding is protected by the Smith Amendment (which prevents FSGG funds from paying directly for abortion procedures). The bill does not prevent states or local governments from using the funding to cover other abortion facility expenses.

Division A, Title VI
—Labor, Health and Human Services, and Education
—Public Health and Social Services Emergency Fund
—Health Care Provider Relief Fund

Division C, Title VI, Subtitle A
—Assistance to Providers and Health System
—HEALTH CARE PROVIDER RELIEF FUND
—SEC. 30611

The bill creates a novel Health Care Provider Relief Fund containing $100 billion to “reimburse…eligible health care providers for…expenses or lost revenues to prevent, prepare for, or respond to COVID-19” (p. 570). Eligible health care providers are defined as those that provide “diagnostic or testing services or treatment to individuals with a confirmed or presumptive diagnosis of COVID-19” (p. 585). Given that some Planned Parenthood clinics offer primary care and may choose to provide the services outlined, they may be eligible for these funds. The fund is authorized in Division C (beginning p. 570) and appropriated in Division A (p. 87).

Division B, Title II
—Additional Relief for Workers

This division includes expansions of federal subsidies of employer-sponsored health insurance, including plans that cover abortion:

Subtitle B—Section 20211
—Tax Credits to Prevent Business Interruption (p. 236).

Amends the employee retention credit created in the CARES Act, H.R. 748. This bill provided a credit to employers for 50% of employee wages for each calendar quarter. This included the employee’s group health plan expenses. Many employer-sponsored health plans include coverage for elective abortion. HR 6800 expands the credit to 80% of employee wages, but it does not include any Hyde protections to ensure taxpayer dollars do not fund health plans that include elective abortion.

Subtitle C—Section 20221
—Credits for Paid Sick and Family Leave (p. 267).

H.R. 6201, the Families First Coronavirus Response Act, included tax credits for paid sick and family leave. Through this credit, taxpayers subsidize the cost of health insurance that may often include elective abortion. This bill extends the tax credit an additional calendar year but does not include any Hyde protections.

Division C, Title III
—Private Insurance Provisions, Subtitle B
—Worker Health Coverage Protection (pp. 402-448)

The Consolidated Omnibus Budget Reconciliation Act (COBRA) gave workers who lose health benefits the right to continue coverage for a limited period if the worker pays the full premium plus administrative costs. The HEROES Act provides that, between March 1, 2020 – January 31, 2021, the government will pay 100% of the premiums for COBRA continuation coverage. Many employer-sponsored health care plans include elective abortions, but no Hyde protections were applied to ensure that taxpayer dollars would not finance abortion-covering plans.

Division I, Small Business Provisions
—AMENDMENTS TO THE PAYCHECK PROTECTION PROGRAM (beginning p. 821)

The CARES Act provided funding for federally-guaranteed, forgivable loans to small businesses and non-profits. It applied the Small Business Administration’s affiliation rules to determine whether applicants qualified for this assistance. Abortion provider Planned Parenthood, which has 16,000 employees nationwide, would have exceeded the 500 employee threshold if the Trump Administration had determined Planned Parenthood affiliates needed to be counted together. The HEROES Act removes the affiliation rule from the PPP. All nonprofits are now eligible for consideration, and Planned Parenthood may no longer be excluded due to its number of employees.

Division Q, Title I
—Provisions Relating to State, Local, Tribal, and Private Sector Workers (p. 1527).

The bill creates a COVID-19 Heroes Fund that will issue grants for employers to pay individual essential workers $13/hour up to $10,000 above normal employee earnings until 60 days after the last day of the COVID-19 public health emergency. Nothing bars abortion clinic employees from eligibility for this premium pay. In fact, the bill states that essential workers include “[h]ealth care work physically provided in outpatient settings (including… other clinics,… ambulatory surgical centers, and other related settings).” Nothing precludes abortion provider Planned Parenthood, which has been deemed essential in several states, from applying for grants to provide its employees with this premium pay.


MANAGER’S AMENDMENT:

On Thursday, May 14, the House Committee on Rules adopted a Manager’s Amendment to H.R. 6800, the HEROES Act, offered by Appropriations Chairwoman Nita Lowey (D-NY). The amendment’s adoption automatically included it in the underlying bill.

The Manager’s Amendment (Title VII—Other Matters, Sec. 30701) states that, both in this bill and provisions in past COVID-19 relief bills signed into law, no person shall be “excluded from participation in, denied the benefits of, or subjected to discrimination… based on any factor … such as… pregnancy, childbirth, and related medical conditions…”. “Related medical conditions” has been recognized by the courts and the Equal Employment Opportunity Commission (EEOC) as a reference to abortion. If adopted, this provision could override the Hyde protections that have been included in this bill and in past COVID-19-related legislation: the CARES Act (H.R. 748), the Families First Coronavirus Relief Act (H.R. 6201), and the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (H.R. 6074).

The Manager’s Amendment also contains two provisions (SEC. 30307 and SEC. 30308) that provide funding to group health insurance plans. Neither provision includes any Hyde protection language to ensure taxpayer dollars do not fund health plans that include elective abortion.


On May 14, the Office of Management and Budget issued a Statement of Administration Policy (SAP) stating, “If H.R. 6800 were presented to the President, his advisors would recommend that he veto the bill.” The SAP highlights proposed “changes to the Consolidated Omnibus Budget Reconciliation Act (COBRA) and other policies that undermine the sanctity of life.”

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