Individual bishops and the U.S. Conference of Catholic Bishops (USCCB) have objected to federal funding of elective abortion. They rightly insist that any reform must improve access to health care and protect conscience rights and the rights of the elderly, the disabled, immigrants and other vulnerable persons. Major pro-life entities, however, including the National Right to Life Committee (NRLC) and the USCCB, have stressed the restriction of abortion to such an extent as to generate the impression that the lack of such a restriction is the only decisive objection to Obamacare. That impression contributed to the House approval of Obamacare.

            On Saturday night, November 7^th, the House passed H.R. 3962, The Affordable Health Care for America Act, by a vote of 220 to 215. Its passage was secured by the approval that night of the Stupak-Pitts Amendment, which made H.R. 3962 subject to the Hyde Amendment, the restriction on other appropriations that forbids federal funding of abortions except to save the life of the mother or where the pregnancy resulted from rape or incest.

            Stupak-Pitts was adopted, 240 to 194, with 1 “present.” The Member voting “present” was John Shadegg, a pro-life Republican from Arizona. He had obtained commitments from numerous Republicans to vote “present” so as to defeat Stupak-Pitts and ensure the defeat of H.R. 3962 itself. At noon on Saturday, November 7, however, the National Right to Life Committee (NLRC) informed all members of the House that “NRLC will regard a ‘present’ vote as equivalent to a negative vote on the Stupak-Pitts Amendment.” Faced with that threat of NRLC opposition to their re-election, those who might have supported the Shadegg strategy voted “yes” on Stupak-Pitts.

            Shadegg’s strategy of voting “present,” so as to defeat Stupak-Pitts, was designed to kill H.R. 3962 itself since, if Stupak-Pitts were defeated, enough Democrats would have voted against H.R. 3962 to ensure its defeat. His strategy would have stopped Obamacare and would have cleared the way for a genuinely deliberative consideration by Congress of health care reform. H.R. 3200, the original House proposal, had 1,017 pages. H.R. 3962 has 1,990. The main Senate bill, which funds abortion, has 2,074. The accelerated votes on those and other bills, which very few, if any, members of Congress have read, is a mockery of legislative process. 

            Not even a total prohibition of abortion funding would make Obamacare worthy of support. Pro-life entities, therefore, should have supported the Shadegg strategy instead of reacting to the Stupak-Pitts approval by virtually endorsing Obamacare. “Over the weekend,” said the USCCB on Monday, Nov. 9^th, “the US House of Representatives advanced major legislation to provide adequate and affordable health care to all.” None of the versions of Obamacare deserves that description. Stupak-Pitts incidentally, in addition to funding abortion in life-of-the-mother, rape and incest cases, would not restrict funding of abortifacients which can prevent implantation of the embryo in the womb and which are wrongly defined as contraceptives.

            At the other end of life, Sec. 1233 of H.R. 3962 provides Medicare reimbursement to practitioners for “voluntary advance care planning consultation” between “the individual and a practitioner” who does not have to be the individual’s physician. It does not state whether the consultation will be initiated by the practitioner or the patient. An individual may receive such consultation “no more than once every five years unless there is a significant change in [his or her] health.” The bill imposes no limit on the number or frequency of such consultations. A consultation may include: an explanation of “end-of-life services [and an] explanation by the practitioner of physician orders regarding life sustaining treatment.” Such is “an actionable medical order relating to the treatment of that individual that … is signed … by a practitioner, and is … to be followed by health care professionals across the continuum of care.” The order “communicates the individual’s preferences regarding life sustaining treatment.” But it does not specify that the order must comply with those preferences. The order must be “signed and dated by a practitioner” who could be someone other than the practitioner who gave the consultation and formulated the order. Nor does the bill require that the signer ever saw the patient. Could the signer by a member of a panel reviewing such orders without ever seeing the patient? Yes. Could that fairly be called a “death panel”? Yes.

            Speaker Pelosi won approval of H.R. 3962 by exploiting the pro-life focus on restricting funding of abortion. “The Stupak amendment,” Shadegg said, “gave political cover to Democrats…. Before the vote [Pelosi] promised pro-abortion Democrats she would strip the Stupak language [from the final bill]. Obama will help her. She will strip the Stupak amendment in Conference and pass the bill with the votes of Democrats who claim to be pro-life. …. Republicans who, at the request of Right to Life… voted “yes” on Stupak last night defined a ‘yes’ vote as the pro-life vote. But, it wasn’t. A ‘yes’ vote increased the votes for [H.R. 3962] and enabled Pelosi to pass it. That means more abortions…. If Republicans had voted ‘present’ as a group, we would have defined the ‘present’ vote as the pro-life vote. …. Now, the Democrats who voted for Stupak will say the ‘Right to Life’ vote was on Stupak and they voted pro-life. Republicans set the standard. Instead of making ‘present’ the pro-life vote, we made ‘yes’ the pro-life vote. …. When the Stupak language is stripped in Conference (and Nancy Pelosi will strip it), the supposedly pro-life Democrats will be pressured by Pelosi and Obama to vote ‘yes’ on the Conference report ….. Pelosi and Obama … will tell [them] they’re safe from attack by Right to Life because they voted for the Stupak amendment. For real pro-lifers to stop the Conference Report after the Stupak language has been stripped will be nearly impossible. I pray we can, but fear last night was our best chance…. Nancy Pelosi caught Republicans off-guard.”

            The Obama Administration has indeed brought change. For a comparable transformation of a constitutional republic to a command economy under a leader with an anti-life agenda, one has to go back a few years. Adolf Hitler was named Chancellor on January 30, 1933. In the following weeks he consolidated his power through decrees and other measures. The decisive event, however, was the Reichstag’s approval of the Enabling Act on March 23, 1933, by which it ceded practically full and irrevocable powers to Hitler. The Enabling Act received the needed two-thirds vote only because it was supported by the Catholic party, the Center Party. Eliot Barculo Wheaton, “The Nazi Revolution: 1933-35” (1969), 286-93; William L. Shirer, “The Rise and Fall of the Third Reich” (1959), 88, 276-79. If Obamacare becomes law, it will be permanent lights out for limited government in the United States. It will be pathetically tragic if it becomes law through the misguided, tunnel-vision support of Catholic entities and individuals.

This column first appeared in The Observer, Notre Dame’s student newspaper.

            The abortion issue has reduced the health care debate to confusion. Let’s try to put it in focus.  When Congressman Joe Wilson (R-SC) shouted “You lie!” to President Obama’s denial, in his address to Congress, that his health care reforms “would insure illegal immigrants,” Obama retorted, “It’s not true.”   Wilson later properly apologized to the President for disrupting the session but he reaffirmed his accusation. In the very next sentence of his speech, however, the President lent credibility to Wilson’s accusation by claiming that “under our plan, no federal dollars will be used to fund abortions.”   Amherst Professor Hadley Arkes fairly described that statement as “a manifest lie.” www.catholicthing.org, Sept. 15, 2009. Let’s evaluate it by looking at the main health care bill, H.R. 3200, which Obama has endorsed.

            The Capps Amendment to H.R. 3200, approved by the House Energy and Commerce Committee by a 30-28 vote, states: “The public health insurance option shall provide coverage for …. abortions for which the expenditure of Federal funds appropriated for the Department of Health and Human Services is permitted.”  That limitation refers to the Hyde Amendment, a rider to the annual Labor/Health and Human Services Appropriation, which prohibits use of those funds to pay for abortions except to save the life of the mother or where the pregnancy is the result of rape or incest. The Hyde Amendment, however, is not itself a restriction on the use of funds under H.R. 3200 which itself appropriates the funds for its own operation. The Capps Amendment further states that “Nothing in this Act shall be construed as preventing the public health insurance option from providing for or prohibiting coverage of…. abortions for which the expenditure of Federal funds appropriated for the Department of Health and Human Services is not permitted.” That refers to elective abortions other than those for life of the mother, rape or incest.

            The Capps Amendment further requires that, among the health benefit plans “offered in each premium rating area of the Health Insurance Exchange—… there is at least one such plan that provides coverage,” and “at least one such plan that does not provide coverage,” of the abortion services permitted, and also those forbidden, by the Hyde Amendment.

            Obama has proposed no “plan” of his own separate from the bills he has endorsed, including chiefly H.R. 3200 and other bills which allow federal funding of abortion. The question remains:  Is he correct in claiming that, “under our plan, no federal dollars” will be used to fund abortions? The Capps Amendment is complicated.  It provides that the federally funded subsidy for individual public option health care premiums, known as an “affordability credit,” H.R. 3200, Sec. 241, “may not be used for payment for” abortions for which the Hyde Amendment forbids federal payment. However, the Health Care Commissioner “shall estimate the basic per enrollee, per month cost, determined on an average actuarial basis, for including coverage” for such elective abortions.   The premium charged to all enrollees in the federally operated public option would be increased by the proportional amount (at least one dollar a month) required to pay for all those elective abortions. The abortionists would bill the federal agency for such abortions performed on subscribers to the public option. The abortionists would be paid by checks drawn on the United States Treasury.  Everyone subscribing to public option health insurance would be required to pay the premium surcharge to support all the abortions for which the Treasury would pay the abortionists. The dollars paid to the federal government under that surcharge would obviously become “federal dollars” which would then be disbursed by the Treasury to the abortionists. Obama’s flat statement to Congress and the American people that “under our plan no federal dollars will be used to fund abortions,” is either evidence of an inconceivable ignorance of what is in H.R. 3200 and similar bills or it is knowingly false, that is, to borrow the words of Congressman Joe Wilson, “You lie!”

            The nation’s Catholic bishops, including principally Cardinal Justin Rigali and Bishop William Murphy of Rockville Center, New York, view health care “as a basic right” and “have long supported health care reform that respects human life and dignity from conception to natural death; provides access to quality health care for all, with a special concern for immigrants and the poor; preserves pluralism, with respect to rights of conscience; and restrains costs while sharing them equitably.” The bishops rightly insist that payment for abortion must be excluded from any health care reform.  

It would be a mistake, however, to conclude that merely excluding abortion coverage would make the proposed “reforms” acceptable. Other problems are involved. One is the definition of abortion. Many so-called contraceptive pills can operate as abortifacients. The “morning after pill,” which can cause abortion, is sold over-the-counter as an “emergency contraceptive.” A prohibition of funding for “abortion” would not prevent funding of such abortifacient “contraceptives.” On another point, consider H.R. 3200, Sec. 1713, page 768, which provides funding for “home visits by trained nurses to families with a first-time pregnant woman, or a child (under 2 years of age), who is eligible for medical assistance.” One of the preconditions for such home visits is that they “are effective” in “[i]mproving maternal or child health and pregnancy outcomes or increasing birth intervals between pregnancies.” A federal functionary, therefore, would come into a low-income home to improve “pregnancy outcomes,” one of which could be abortion, and to “increase birth intervals between pregnancies.” By the time the bureaucrats get through writing the regulations for this, it could operate as a covert version of China’s “one-child policy.”

            In a joint statement, “Principles of Catholic Social Teaching and Health Care Reform,” the Kansas City bishops, Archbishop Joseph F. Naumann and Bishop Robert W. Finn, analyzed both the inadequacies and strengths of our current health care system. Significantly, they emphasized that the principle of subsidiarity requires that “health care ought to be determined at the lowest level rather than at the higher strata of society…. The writings of recent Popes have warned that the neglect of subsidiarity can lead to an excessive centralization of human services, which in turn leads to excessive costs, and loss of personal responsibility and quality of care.”

            “The right of every individual to access health care,” said Naumann and Finn, “does not necessarily suppose an obligation on the part of the government to provide it. Yet in our American culture, Catholic teaching about the ‘right’ to healthcare is sometimes confused with the structures of ‘entitlement.’ The teaching of the Universal Church has never been to suggest a government socialization of medical services. Rather, the Church has asserted the rights of every individual to have access to those things most necessary for sustaining and caring for human life, while at the same time insisting on the personal responsibility of each individual to care properly for his or her own health.”

            Here, as elsewhere, the social and moral teachings of the Church offer principles supportive of human dignity, freedom and common sense as well as the right to life.

This column first appeared in The Observer, Notre Dame’s student newspaper.

The main health care bill, H.R. 3200, “America’s Affordable Health Care Act of 2009,” has 1,017 pages.   I read it, which gave me some, but not much, sympathy for House members who admit that they voted for it in committee, or endorsed it, without reading it.

Section 1233 (pages 424-34), on “advanced care planning consultation,” expands the physician services that Medicare will reimburse, to include consultations regarding end-of-life decision making. Senator Chuck Grassley (R-IA) says the Senate Finance Committee has removed “the end-of-life provisions” from its bill because they would pay physicians to “advise patients about end-of-life care and rate physician quality of care based on the creation of and adherence to orders for end-of-life care.” But that bill is only one of several on the subject. It is too early to count the end-of-life consultations out. As Health and Human Services Secretary Kathleen Sebelius said on August 16, “I’m hoping that at the end of the day” the consultation provisions “will be part of the overall package.” 

Let’s look at what Section 1233 says and, more important, what it does not say and thus leaves to bureaucratic, implementing regulations which could make the 1,017 pages of the bill look like a telegram. An “advance care planning consultation” is between “the individual and a practitioner” who does not have to be the individual’s own physician. A “practitioner” can be a physician or a “nurse practitioner or physician’s assistant who has the authority under State law to sign orders for life sustaining treatments.” The bill does not state whether the consultation will be initiated by the practitioner or by the individual. Nor does it state that the individual is compelled to have a consultation. “Though not mandatory,” wrote Charles Lane of the Washington Post editorial board, “the consultations … aren’t quite ‘purely voluntary.’” “To me,” he said, “‘purely voluntary,’ means ‘not unless the patient requests one.’ Section 1233… lets doctors initiate the chat and gives them an incentive—money—to do so. Indeed, that’s an incentive to insist. Patients may refuse without penalty, but many will bow to white-coated authority. Once they’re in the meeting, the bill does permit ‘formulation’ of a plug-pulling order right then and there.”  Regulations could, in effect, make the consultations mandatory, to be initiated by the individual or the practitioner with penalties on the individual who fails to initiate it.

A consultation shall include: “An explanation by the practitioner of advance care planning…and… advance directives, including living wills and durable powers of attorney…. the role … of a health care proxy…. [t]he provision by the practitioner of a list of… resources to assist … with advanced care planning…. [a]n explanation … of … end-of-life services … available, including patient care and hospice….an explanation of orders regarding life sustaining treatment…. which shall include… the reasons why … such an order is beneficial to the individual and the individual’s family and the reasons why such an order should be updated periodically as the health of the individual changes.”  Note that the consultation “shall include” an explanation of only one side of the question of whether such an order would be beneficial. 

“A consultation … may include the formulation of an order regarding life sustaining treatement….[which is] an actionable… order relating to the treatment of that individual that (i) is signed and dated by a physician … or another health care professional (as specified by the Secretary)… in a form that permits it to stay with the individual and be followed by health care professionals … across the continuum of care; (ii)… communicates the individual’s preferences regarding life sustaining treatment, including an indication of the treatment and care desired by the individual; (iii) is… standardized within a given locality… (as identified by the Secretary); and (iv) may incorporate any advance directive… if executed by the individual.”

“The level of treatment indicated” by the order “may range from… full treatment to an indication to limit some or all or specified interventions. Such… levels of treatment may include indications respecting, among other items— (i) the intensity of medical intervention if the patient is pulse less, apneic, or has serious cardiac or pulmonary problems; (ii) the individual’s desire regarding transfer to a hospital or remaining at the current care setting; (iii) the use of antibiotics; and (iv) the use of artificially administered nutrition and hydration.”

This “actionable” order becomes part of the individual’s permanent record, available to the government and health care professionals who are required to follow it. Opponents of end-of-life consultations were derided by President Obama and the media for raising the prospect of “death panels.” But note that the order does not have to be signed by the practitioner who conducts the consultation. Regulations, consistent with Section 1233, could provide that the order would be signed by a “health care professional” other than that practitioner who formulated it. There is no mandate that the professional who signs the order ever saw the individual involved. Could the signer be a member of a panel reviewing such orders without ever seeing the patient? Apparently so.

The order “communicates the individual’s preferences… including … the treatment … desired by the individual.” But it does not specify that the order must comply with those preferences. If the individual had executed an advance directive, the order “may incorporate” it but does not have to include it or even refer to it.

Section 1233 does not state whether the individual’s personal physician, lawyer or family members may be present at the “advance care planning consultation.” Nor does it specify that the order will be subject to judicial review. 

An “advance care planning consultation” may be held “if the individual… has not had such a consultation within the last 5 years.” A consultation “may be conducted more frequently … if there is a significant change in the health condition of the individual, including diagnosis of a chronic, progressive, life-limiting disease, a life-threatening or terminal diagnosis or life-threatening injury, or upon admission to a skilled nursing facility, a long-term care facility … or a hospice program.” The bill imposes no limit on the number or frequency of such consultations, raising the prospect of repeated pressuring of patients to forego treatment.

“Obamacare” seeks to increase those who are covered and to reduce costs. The only way to achieve both objectives is to ration the health care provided to the elderly and disabled. Half of a person’s medical expenses generally occur in the last six months of life. The rationing, at first, will be technically voluntary. Grandma will be told that she is not eligible for that hip replacement. She will be given the option of taking pain pills. But she will be encouraged to relieve the burden on her family through legal means of achieving “death with dignity.” Section 1233 is evil in its effect and potential.

This column also appeared in The Observer, Notre Dame’s student newspaper.