The truth about 'The truth about the Capps Amendment'


The Capps Amendment explicitly authorizes the Secretary of HHS to pay for elective abortions, any abortions, under the government plan.  The public plan would be a program within the Department of Health and Human Services (DHHS), part of the federal Executive Branch, headed by the Secretary of HHS.  Under H.R. 3200 and the Capps Amendment, abortion providers would send their bills to DHHS.  They would receive payment checks drawn on a federal Treasury account, in federal funds.  This would be direct federal government funding of elective abortion.

This is not a matter of opinion.  It is a matter of law.   Funds under the control of and expended by an agency of the federal government cannot accurately be described as "private funds."   For example, the funds in a citizen's bank account are private, but once he or she writes a check to the IRS to pay income taxes, the funds become federal government funds, public funds, deposited in a U.S. Treasury account.  The same is true here.  Once a public plan enrollee makes a "premium" payment to DHHS, the funds are no longer "private" -- they are federal government funds, as truly and completely as the funds gathered by the IRS.

(I wonder how many of those who are currently peddling the untenable claim that DHHS would be spending "private funds" on elective abortions would also embrace the notion that other federal agencies -- say, the CIA, or the Pentagon -- could expend federal Treasury funds in transactions that would be considered "private.")

Capps and the others who are exerting themselves in the ludicrous exercise of attempting to label government agency spending as "private" are doing so for a transparently political purpose:  To conceal the reality that H.R. 3200 would establish direct federal government funding of elective abortion by the government insurance plan.

The abortion problems with H.R. 3200 are not limited to the public plan, however:  The Capps Amendment would also explicitly authorize large-scale federal subsidies for private health plans that pay for elective abortions, under the new premium-subsidy program that the bill would create.

NRLC has issued a memorandum proving that all of the funds that would be expended by the "public option," and also all of the funds that would flow to the premium-subsidy program, would be in fact "federal funds," both as a matter of law, and in the usage of those terms by and about federal agencies across the board.  The memorandum contains links to primary documents from the CBO, GAO, and the nonpartisan Congressional Research Service.)  It can be found here.

Capps claims that H.R. 3200 and her amendment preserve the "status quo."  This is a whopper.  In reality, H.R. 3200 and the Capps Amendment would represent a sharp break from decades of federal policy on abortion.  Under a panoply of current laws, including the Hyde Amendment, federal funds do not pay for abortions, and federal funds do not flow into trust funds or pay any part of the premiums that fund coverage of elective abortions.

Unfortunately, none of the funds spent by the public plan or the premium subsidy program would be appropriated through the annual Health and Human Services appropriations bill, as the nonpartisan Congressional Research Service confirmed in two memoranda recently issued to the office of Congressman Chris Smith (R-NJ).  This means that the real Hyde Amendment would not apply to these new programs, despite assurances to the contrary from President Obama, Senate Majority Leader Reid, and others.  The documentation is here.

In a feeble attempt to justify the provision of her amendment that authorizes federal funding to subsidize private insurance plans that cover abortion on demand, Capps argues that this is no different from the current policy of allowing states to fund abortions for Medicaid-eligible women if they choose to do so.

The argument really makes no sense at all.  Each of us lives under two sovereigns -- the federal government, and a state government (unless one lives in a federal enclave).  Under the Hyde Amendment, no federal funds may flow to any trust fund that covers any abortions (except the save life of the mother, or in cases of rape or incest).  But of course this does not prevent a state from setting up its own program to pay for abortions for people who are Medicaid-eligible, or for anybody else.  State policies regarding abortion really have nothing to do with the subject of the current debate, which is whether elective abortion should be part of the proposed federal public insurance plan and whether private insurance plans that cover elective abortion should receive federal subsidies.

One more thing:  The Capps Amendment is booby trapped in a manner that ensures that if renewal of the Hyde Amendment is blocked for a future fiscal year -- a definite possibility, since President Obama opposes the Hyde Amendment -- this would automatically extend into the public plan a mandate to pay for abortion on demand.  A lapse in the Hyde Amendment would also effectively negate the requirement -- which Capps made out to be a great concession -- that there must be "one plan in the Health Exchange that does not offer abortion services."  And, of course, a lapse in the Hyde Amendment would result in a resumption of federal funding of abortion on demand in Medicaid, a program in which the federal government was paying for 300,000 elective abortions annually when the Hyde Amendment was first passed in 1976.

The Capps Amendment is an artful construct -- dressed up to look like a Hyde Amendment to the superficial observer (which, regrettably, includes some journalists and "factcheckers" in the news media), but in reality an inversion of the Hyde Amendment, explicitly authorizing what the Hyde Amendment, if it applied, would forbid.

A poll released earlier this month by Public Opinion Strategies found that 43 percent of registered voters said they would be "less likely" to support the president's health plan "if the government paid for abortions," and only 8 percent said "more likely."   A Rasmussen poll conducted September 14-15 asked, "Should health insurance paid for or subsidized with government funding be required to cover abortions, be prohibited from covering abortions, or have no requirements concerning abortions?"  Only 13% said "required," while 48% said "prohibited."

These polls, and others like them, explain why Rep. Capps and her allies hope to smuggle federal funding of abortion into law behind a smokescreen of contrived terminology, evasion, and distortion.