Abortion in “Build Back Better”

The Build Back Better Act, H.R. 5376, has significant Hyde problems: it allows taxpayer dollars to fund elective abortion and subsidize plans that cover election abortion, and it creates funding streams that could be used for abortion facilities or abortion training.

Rep. Chris Smith (R-NJ) spoke for a minute on the House floor Thursday, 11/18/2021, in support of protecting life and in opposition to the Build Back Better Act:

Mr. Speaker, the U.S. Conference of Catholic Bishops said it was completely unacceptable that the Build Back Better Act expands taxpayer funding of abortion in many new and expanding programs.

The National Right to Life Committee has pointed out that even ObamaCare contained a provision that specifically permitted States to ban elective abortions in their exchanges. The BBB, starting in 2024, would explicitly override the laws of those States.

Mr. Speaker, Mr. Biden once said that those of us who are opposed to abortion should not be compelled to pay for them. This bill coerces us to pay for abortion on demand.

Mr. Speaker, unborn babies need the President of the United States and Members of Congress to be their friends and advocates, not powerful adversaries subsidizing their violent destruction.

Mr. Smith of New Jersey had additional remarks prepared for delivery:

Mr. Speaker, President Biden’s massive new multitrillion dollar tax and spend bill, the so-called Build back Better Act will cost at least $4 trillion according to the U.S. Chamber of Commerce.

According to the Chamber, the Build Back Better Act will significantly increase inflation and lead to up to 3 million people losing their employer sponsored health insurance plans.

Astonishingly, as we debate this legislation on the floor of the House today, there is still no detailed cost analysis by the nonpartisan Congressional Budget Office.

Among the bill’s most egregious provisions, it:

• Effectively bans Catholic and other faith-based schools from participating in the expanded child care program;
• Dramatically raises taxes on businesses and individuals;
• Grants more power to the IRS to target taxpayers by removing taxpayer protection requirements and hiring 87,000 additional agents;
• Permits taxpayer money to go to entities involved China’s genocide against the Uyghur Muslims;
• Institutes price controls on prescription drugs and subjects companies that refuse to comply to a massive excise tax, which would cripple innovation and could cause the removal of life-saving drugs from the US market.

And, shockingly, the legislation forces taxpayers to pay for abortion on demand in several new and expanded programs.

Taxpayers should not be forced to subsidize or facilitate the killing of an unborn child.

The so-called Build Back Better Act:

• gives states $30 billion over three years to create reinsurance programs for health insurance issuers. There are no protections whatsoever to prevent subsidization of plans covering elective abortion,
• extends to January 1, 2027 the increases to premium tax credits available for consumers through the Affordable Care Act (ACA). Premium tax credits allow taxpayer funding to subsidize ACA plans that provide elective abortion,
• provides $10 billion worth of public health funding grants that aren’t Hyde Amendment protected,
• makes permanent the Health Coverage Tax Credit without Hyde protection to prevent taxpayer funds in this program from paying for health plans that include elective abortion,
• mandates abortion coverage in the Affordable Care Act (ACA), 
• And more.

The National Right to Life Committee strongly opposes this legislation and pointed out that: “The 2010 Obamacare law as would the Build Back Better (BBB) created multiple new streams of federal funding that are “self-appropriated” flowing outside regular appropriations.

“That said, the Obamacare law contains a provision that specifically permitted states to ban elective abortion coverage in their exchanges, and 25 states passed legislation doing so. The BBB, starting in 2024, would explicitly override the laws of 11 of these states—states that did not expand their Medicaid programs. One additional non-expansion state (Wyoming) will also now be required to cover abortion.

“Further, the provisions mandate that Obamacare silver exchange plans cover abortion and transportation for abortions (without cost sharing) for the Medicaid coverage gap population. The BBB provides unlimited appropriations to finance this abortion expansion. The BBB would mandate coverage in the above mentioned 12 states of “services described in subsection (a)(4)(C) of section 1905 of such [the Social Security] Act [family planning services] for which Federal payments would have been so available ["under title XIX of the Social Security Act] which are not otherwise provided under such plan as part of the essential health benefits package described in section 1302(a).” Obamacare specifically excluded abortion as a required essential health benefit under section 1303, and this BBB provision would effectively override the 2010 law.”

The U.S. Conference of Catholic Bishops wrote to every Member of Congress on Wednesday and said: “it is completely unacceptable that the current House version of the Build Back Better Act expands taxpayer funding of abortion…No proposal to support individuals needing affordable health care coverage should compel Americans to pay for the destruction of human life through their tax dollars... In addition, the latest text maintains the proposed health care affordability fund for states without Hyde protections, and provides funding for several public health grants without Hyde protections. This fundamental problem of expanded taxpayer funding of abortion in the Build Back Better Act must be remedied before the bill moves forward.”

The Susan B. Anthony List opposes the bill and said yesterday: “It is critical to remember that whenever abortion is not explicitly excluded from funding, it is included…A careful reading of this bill shows billions of dollars being appropriated outside of Hyde protections, leaving them available for direct and indirect abortion funding, upsetting the status quo and funneling money to the abortion industry…The ACA coverage provision mandates abortion coverage for its Medicaid-gap populations in

the twelve states that opted out of Medicaid expansion for plan years 2024 and 2025. It is notable that none of these states currently fund abortion coverage. This language would coerce them states to cover abortion against the will of their constituents.”

The Hyde Amendment, Madame Speaker, has saved more than 2.4 million lives—about 60,000 per year since it was first enacted.

Hyde protections need to be added to this bill.

It is time, I believe, for more of us to face the harsh reality of what abortion does to children and look beyond the sound bites and slogans.

No one in the media ever bothers to expose the violent methods of abortion that include dismemberment of a child’s fragile body, including decapitation, and that drugs like RU–486 starve the baby to death.

Or that unborn babies killed by abortion at 20 weeks or later experience excruciating suffering and physical pain. And until rendered unconscious or dead by these hideous procedures, the baby feels the pain every cut according to medical experts in life-enhancing prenatal surgery.

Abortion is not health care unless one construes the precious life of an unborn child to be analogous to a tumor to be excised or a disease to be vanquished pregnancy is not a disease.

Mr. Biden once wrote constituents, explaining that his support for laws against funding for abortion, by saying ‘‘it would protect both the woman and her unborn child.’’

Mr. Biden went on to say ‘‘that those of us who are opposed to abortion should not be compelled to pay for them.’’ I agree. Most Americans agree.

Over the years, the polls have consistently shown that Americans do not support taxpayer funded abortion.

The January 2021 Marist poll found that by a margin of 58% to 38% (Americans) oppose taxpayer funded abortion.

The Marist poll found that a supermajority of 65% of Independents oppose taxpayer funding of abortion.

Unborn babies need the President of the United States and Members of Congress to be their friend and advocate, not powerful adversaries.

A non-exhaustive list of examples of pro-life problems identified in the bill:

Programs created or expanded that would provide taxpayer funding for elective abortion or plans that cover elective abortion.

The proposed bill mandates abortion coverage in the Affordable Care Act (ACA) for plans covering individuals at 138% of the Federal Poverty Line.

Title III – Committee on Energy and Commerce, Section 30601.

Background:

The Affordable Care Act (ACA) created new federal funding streams not protected by the Hyde Amendment. It violated the longstanding principle of the Hyde Amendment by establishing unprecedented federal funding of health care plans that cover elective abortion. Today, billions of dollars in the form of subsidies are available to buy abortion-subsidizing health insurance plans in exchanges throughout the country.

The bill mandates that, in the twelve states that have chosen not to expand Medicaid, silver plans in the ACA cover individuals in the Medicaid coverage gap (up to 138% of the Federal Poverty Line) in 2024 and 2025. This provision includes a requirement for the plans to cover abortion for plan recipients.

The twelve states that have not expanded Medicaid are Alabama, Florida, Georgia, Kansas, Mississippi, North Carolina, South Carolina, South Dakota, Tennessee, Texas, Wisconsin and Wyoming.

This provision supersedes state laws that prohibit abortion from being sold on the ACA exchange. 11 out of the 12 states have opted out of abortion coverage on the ACA exchanges, and this provision would impose coverage for elective abortion. While the twelfth state, Wyoming, has not officially opted out of coverage, 100% of the individual and family plans offered on the Wyoming ACA exchange excluded abortion in both 2019 and 2020.

This requirement, which imposes abortion on these twelve states in spite of their laws, goes even further than the ACA. The ACA allows a state to enact a law to prohibit abortion coverage in qualified health plans offered in an Exchange.

Legislative Analysis:

The ACA prohibits a qualified health plan from being required to provide abortion as part of its essential health benefits. Section 30601(c) attempts to circumvent that protection by referencing abortion in the following way:

It states that the benefits must include “services described in (a)(4)(C) of Section 1905 of the Social Security Act.” This provision references "family planning services and supplies furnished (directly or under arrangements with others) to individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies."

These must be services “which are not otherwise provided under such plan as part of essential health benefits.” Contraception is already provided through the Affordable Care Act. A “service” “not otherwise provided” under the ACA that affects “individuals of child-bearing age” appears to be a clear reference to abortion.

These services must be provided “without any restriction on the choice of a qualified provider.” Translation: Planned Parenthood and other abortion providers may be reimbursed for services under ACA plans.

The proposed bill gives states $30 billion ($10 billion annually from 2023 through 2025) to create reinsurance programs for health insurance issuers and reduce out-of-pocket costs to consumers.

Title III – Committee on Energy & Commerce, Section 30602

As stated above, the ACA deviated from the longstanding Hyde Amendment principle by using taxpayer dollars to fund insurance plans that cover abortion on demand.

Creating a reinsurance program allows taxpayer funding to further subsidize ACA plans that provide elective abortion, and there are no Hyde protections included to prevent this subsidization.

The proposed bill extends to January 1, 2027, the increases to premium tax credits available for consumers through the Affordable Care Act (ACA). Premium tax credits allow taxpayer funding to subsidize ACA plans that provide elective abortion. Title XIII – Committee on Ways and Means, Section 137301.

The proposed bill makes permanent the Health Coverage Tax Credit. As explained by the Congressional Research Service, “The Health Coverage Tax Credit (HCTC) subsidizes most of the cost of qualified health insurance for eligible taxpayers and their family members.” There is no Hyde protection to prevent taxpayer funds in this program from paying for health plans that include elective abortion. Title XIII – Committee on Ways and Means, Section 137306.


Funding streams not covered by Hyde protections that are at risk of paying for elective abortion.

$500 million for the Job Corps program. The Job Corp family planning policy states that abortion is currently constrained by the Hyde Amendment from using the funding it receives through annual appropriations to pay for elective abortion. Because this funding is outside the appropriations process and not Hyde-protected, however, nothing prevents it from being used to pay for elective abortion. Title II – Education & Labor, Section 22008.

$25 million for the Pregnancy Assistance Fund for each of fiscal years 2022 through 2024. Title II – Education & Labor, Section 25003.

$7 billion for public health activities at the Centers for Disease Control and Prevention (CDC), which includes funding for health equity. Proponents of abortion often argue that abortion is essential to obtaining “health equity.” Title III – Committee on Energy & Commerce, Section 31001.

$3.37 billion for health center graduate medical education. Title III – Committee on Energy & Commerce, Section 31003.

$2 billion in funding for National Health Service Corps. Title III – Committee on Energy & Commerce Subtitle J, Section 31005.

$500 million in funding for the Nurse Corps. Title III – Committee on Energy & Commerce, Section 31006.

$100 million for addressing “social determinants of health (as described in Healthy People 2030), including social determinants of maternal health.” The Department of Health and Human Services page, “Healthy People 2030,” has several categories for family planning that may include abortion. Title III – Committee on Energy & Commerce Subtitle J, Section 31031.

$75 million for the Office of Minority Health to carry out grants to community-based organizations operating with high rates of adverse maternal health outcomes or with significant racial and ethnic disparities. Title III – Committee on Energy & Commerce, Section 31032.

$170 million for growing the nursing workforce in maternal and perinatal health. There are concerns that this funding could be used to pay for abortion or abortion training in addition to disregarding potential conscientious objections from the nurses. Title III – Committee on Energy & Commerce, Section 31033.

$50 million for perinatal quality collaboratives, state or multistate networks of teams working to improve the quality of care for mothers and babies. ACOG has defined perinatal care to include abortion. Title III – Committee on Energy & Commerce, Section 31034.

$50 million for growing the doula workforce. Without Hyde protection, this could include expanding the number of “abortion doulas.” Title III – Committee on Energy & Commerce, Section 31035.

$100 million for maternal mental health grant programs. Abortion proponents have been known to claim that a woman with an unwanted pregnancy experiencing mental distress needs to receive an abortion. See, for instance, this statement from the American Psychological Association. Title III – Committee on Energy & Commerce, Section 31037.

$85 million for addressing health risks associated with climate change. This funding may be used to address “health risks associated with climate change for pregnant, lactating, and postpartum individuals.” It suggests that abortion may be funded as a means of combatting climate change. Title III – Committee on Energy & Commerce, Section 31038.

$15 million for the National Institute of Child Health and Human Development to conduct research for interventions to mitigate the effects of COVID-19 on pregnant or postpartum individuals. This research would not have Hyde protections or Dickey-Wicker protections (preventing federal funding of harmful human embryo research.) Title III – Committee on Energy & Commerce, Section 31045.

$30 million for promoting equity in maternal health outcomes through digital tools, including telehealth services and training providers. Without Hyde protection, there are concerns this funding could be used for tele-abortion. Title III – Committee on Energy & Commerce, Section 31047.

ADDITIONAL PRO-LIFE PROBLEMS: Funding for Abortion Facilities, Abortion Workforce Development, and the Lack of Pro-Life Research Protections

Directing funding to facilities that perform elective abortions. The $1.3 billion for public health activities through the HHS Office of the Assistant Secretary for Preparedness and Response could be used to construct facilities that perform elective abortion. Title III – Committee on Energy & Commerce, Section 31022.

The funding provided in several of the workforce development sections could be used to pay for health care providers to be trained in abortion procedures or could violate be used to violate health care providers’ conscientious objections to abortion (in addition to the lack of Hyde protections):

• $3.37 billion for health center graduate medical education. Title III – Committee on Energy & Commerce, Section 31003.
• $2 billion in funding for National Health Service Corps. Title III – Committee on Energy & Commerce, Section 31005.
• $500 million for Nurse Corps. Title III – Committee on Energy & Commerce, Section 31006.
• $50 million for grants to national nonprofits focused on “health equity,” accredited medical and nursing schools, and health professional training programs focused on eliminating discrimination and bias in providing maternal health care. Because this is undefined, it could be used to require that health care providers participate in abortion despite conscientious objections. Title III – Committee on Energy & Commerce, Section 31048.