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66–317 PDF 2011

H.R. lll, A BILL TO AMEND THE PATIENT 

PROTECTION AND AFFORDABLE CARE ACT 

TO MODIFY SPECIAL RULES RELATING TO 

COVERAGE OF ABORTION SERVICES UNDER 

SUCH ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HEALTH 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

FEBRUARY 9, 2011 

Serial No. 112–3 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chair 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID P. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

(II)

(III) 

SUBCOMMITTEE ON HEALTH

JOSEPH R. PITTS, Pennsylvania 

Chairman 

MICHAEL C. BURGESS, Texas 

Vice Chairman 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

TIM MURPHY, Pennsylvania 

MARSHA BLACKBURN, Tennessee 

PHIL GINGREY, Georgia 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

JOHN D. DINGELL, Michigan 

EDOLPHUS TOWNS, New York 

ELIOT L. ENGEL, New York 

LOIS CAPPS, California 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

HENRY A. WAXMAN, California 

(V) 

C O N T E N T S 

Page 

Hon. Joseph R. Pitts, a Representative in Congress from the Commonwealth 

of Pennsylvania, opening statement ................................................................... 1 

Prepared statement .......................................................................................... 3 

Hon. Lois Capps, a Representative in Congress from the State of California, 

prepared statement .............................................................................................. 5 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 7 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 9 

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

prepared statement .............................................................................................. 116 

Hon. Marsha Blackburn, a Representative in Congress from the State of 

Tennessee, prepared statement .......................................................................... 117 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, prepared statement ...................................................................................... 118 

Hon. Edolphus Towns, a Representative in Congress from the State of New 

York, prepared statement .................................................................................... 119 

WITNESSES

Helen M. Alvare ́, Associate Professor of Law, George Mason University School 

of Law .................................................................................................................... 11 

Prepared statement .......................................................................................... 13 

Sara Rosenbaum, J.D., Hirsh Professor and Chair, Department of Health 

Policy, School of Public Health and Health Services, The George Washington University ................................................................................................. 24 

Prepared statement .......................................................................................... 26 

Douglas Johnson, Legislative Director, National Right to Life Committee ........ 33 

Prepared statement .......................................................................................... 35 

SUBMITTED MATERIAL

Letter of February 8, 2011, from National Health Law Program to Members 

of the Subcommittee, submitted by Ms. Schakowsky ....................................... 120 

Statement of NARAL, Pro-Choice America Foundation, submitted by Mrs. 

Capps ..................................................................................................................... 123 

Letter of February 9, 2011, from National Asian Pacific American American 

Women’s Forum to Members of the Subcommittee, submitted by Mr. Engel . 130 

(1) 

H.R. ———, A BILL TO AMEND THE PATIENT 

PROTECTION AND AFFORDABLE CARE ACT 

TO MODIFY SPECIAL RULES RELATING TO 

COVERAGE OF ABORTION SERVICES UNDER 

SUCH ACT 

WEDNESDAY, FEBRUARY 9, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON HEALTH, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 1:06 p.m., in room 

2322 of the Rayburn House Office Building, Hon. Joseph R. Pitts 

(chairman of the subcommittee) presiding. 

Members present: Representatives Pitts, Burgess, Shimkus, 

Myrick, Murphy, Blackburn, Gingrey, Latta, McMorris Rodgers, 

Lance, Cassidy, Guthrie, Upton, Pallone, Dingell, Towns, Engel, 

Capps, Schakowsky, Gonzalez, Baldwin, Weiner, and Waxman (ex 

officio). 

Also present: Representative DeGette. 

Staff present: Gary Andres, Staff Director; Jim Barnette, General 

Counsel; Michael Beckerman, Deputy Staff Director; Alison 

Busbee, Legislative Clerk; Howard Cohen, Chief Health Counsel; 

Marty Dannenfelser, Senior Advisor, Health Policy & Coalitions; 

Julie Goon, Health Policy Advisor; Peter Kielty, Senior Legislative 

Analyst; Ryan Long, Chief Counsel, Health; Jeff Mortier, Professional Staff Member; Katie Novaria, Legislative Clerk; Heidi Stirrup; Lyn Walker, Coordinator, Admin/Human Resources; Karen 

Nelson, Deputy Democratic Staff Director for Health; Ruth Katz, 

Chief Public Health Counsel; Steve Cha, MD, Professional Staff; 

Phil Barnette, Democratic Staff Director; Karen Lightfoot, Communications Director; Alli Corr, Special Assistant for Health; and 

Mitch Smiley, Associate Clerk. 

Mr. PITTS. The subcommittee will come to order. The chair will 

recognize himself for an opening statement. 

OPENING STATEMENT OF HON. JOSEPH PITTS, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA 

Mr. PITTS. First, I would like to thank my colleagues on both 

sides of the aisle for being here today for what promises to be a 

very interesting hearing. The new Republican Majority has stated 

its commitment to an open and fair legislative process, and that 

will be reflected in this subcommittee. I ask all of my colleagues 

2 

and our audience to treat each other and our witnesses with civility 

and respect. This hearing is an important part of the legislative 

process and we will conduct it accordingly. I would also like to acknowledge my friend, the Ranking Member, Mr. Pallone of New 

Jersey. Pennsylvania and New Jersey are as close together as the 

Phillies and the Yankees are far apart. This Phillies fan intends to 

work as closely as possible with Mr. Pallone, the Yankees notwithstanding. 

I believe there are a great many things we can work on together 

for the good of this country, and I look forward to cooperating with 

you this year. When we disagree I hope we will always do so with 

dignity and respect, treating those who may disagree with dignity 

and respect. And I promise to do that on my part. 

Pursuant to committee rules, I intend to make an opening statement of not more than 5 minutes and will then recognize the ranking member, Mr. Pallone, for an opening statement. The chairman 

of the Committee, Mr. Upton, will then have a chance to give an 

opening statement followed finally by the ranking member of the 

Committee, Mr. Waxman. 

Today we will hear testimony from one panel of three witnesses, 

two invited by the majority, and one invited by the minority. All 

sides of the debate will be heard today and every member will have 

a chance to question each of the witnesses. 

The testimony we will hear today regards the prohibition of taxpayer funding of abortion and abortion coverage. For decades there 

has been a clear prohibition against the use of federal dollars to 

pay for abortion. The Patient Protection and Affordable Care Act 

opened the door, for the first time in decades, to government financing of abortion. My colleagues will recall that the House acted 

affirmatively to fix this in a strongly bipartisan vote of 240 to 194 

to 1. We are all aware that abortion itself can be a controversial 

subject. What is far less controversial is the question of whether 

the taxpayers should be financing it. The so-called Stupak-Pitts 

amendment last session affirmed the view of 60 to 70 percent of 

Americans that government taxpayer money should not be involved 

in abortion. Unfortunately, the Senate did not see fit to include the 

House prohibition in its version of the bill and it was the Senate 

Bill that became law. 

We need to be clear about some things as we start. The government does not finance abortions and has not done so for decades 

thanks to the Hyde amendment. Moreover, the government has 

never told any medical professional or medical institution that it 

must perform abortions. This bill seeks to clarify these policies and 

give them permanence. 

The President has on at least two occasions affirmed what we are 

doing her today. In his 2009 speech to a joint session of Congress, 

the President said, and I quote: ‘‘Under our plan no federal dollars 

will be used to fund abortions and federal conscience laws will remain in place.’’ A year later in his Executive order, the President 

clearly endorsed the principle of no government funds going to 

abortion and again, clearly endorsed the principle of not forcing 

health care professions to act against the dictates of conscience. 

But an Executive order is not law. It can be rescinded at any time 

3 

by this or any future president. It can be overturned by a judge or 

simply ignored. 

If we wish to respect the views of those who do not want their 

money used to finance abortion, if we wish to follow the wishes of 

60 to 70 percent of Americans who believe the government should 

not pay for the procedure, then Congress should send this bill to 

President in short order. The President is clearly on record supporting the principles in the bill and when it gets to his desk, I 

hope he will sign it. 

I think I have how much time—40 seconds. I will yield the remainder of my time to gentleman from Ohio, Mr. Latta. 

[The prepared statement of Mr. Pitts follows:] 

PREPARED STATEMENT OF HON. JOSEPH R. PITTS

The Chair will recognize himself for an opening statement.I’d like to thank my 

colleagues-on both sides of the aisle-for being here today for what promises to be 

a very interesting hearing. 

The new Republican Majority has stated its commitment to an open and fair legislative process, and that will be reflected in this subcommittee. I ask all of my colleagues and our audience to treat each other and our witnesses with civility and 

respect. This hearing is an important part of the legislative process and we will conduct it accordingly. 

I’d also like to acknowledge my friend, the Ranking Member, Mr. Pallone of New 

Jersey. Pennsylvania and New Jersey are as close together as the Phillies and the 

Yankees are far apart. This Phillies fan intends to work as closely as possible with 

Mr. Pallone, the Yankees notwithstanding. 

I believe there are a great many things we can work on together for the good of 

this country. I look forward to cooperating with you this year. 

When we disagree, I hope we will always do so without being disagreeable. I 

promise to do my part. 

Pursuant to committee rules, I intend to make an opening statement-of not more 

than five minutes-and will then recognize the Ranking Member, Mr. Pallone, for an 

opening statement. The Chairman of the Committee, Mr. Upton, will then have a 

chance to give an opening statement-followed, finally, by the Ranking Member of 

the Committee, Mr. Waxman. 

Today, we will hear testimony from one panel of three witnesses-two invited by 

the majority and one invited by the minority. All sides of the debate will be heard 

today and every Member will have a chance to question each of the witnesses. 

The testimony we will hear today regards the prohibition of taxpayer funding of 

abortion and abortion coverage. For decades, there has been a clear prohibition 

against the use of federal dollars to pay for abortion. The Patient Protection and 

Affordable Care Act opened the door, for the first time in decades, to government 

financing of abortion. 

My colleagues will recall that the House acted affirmatively to fix this, in a 

strongly bipartisan vote of 240 to 194. 

We are all aware that abortion itself can be a controversial subject. What is far 

less controversial is the question of whether the taxpayers should be financing it. 

The Stupak-Pitts Amendment affirmed the view of 60 to 70 percent of Americans 

that government taxpayer money should not be involved in abortion. 

Unfortunately, the Senate did not see fit to include the House’s prohibition in its 

version of the bill, and it was the Senate bill that became law. 

We need to be clear about some things as we start. The government does not finance abortions and has not done so for decades - thanks to the Hyde amendment. 

Moreover, the government has never told any medical professional or medical institution that it must perform abortions. 

This bill seeks to clarify these policies and give them permanence. 

The President has on at least two occasions affirmed what we are doing here 

today. In his 2009 speech to a joint session of Congress, the president said, and I 

quote: ‘‘under our plan, no federal dollars will be used to fund abortions, and federal 

conscience laws will remain in place.’’ 

A year later, in his Executive order, the president clearly endorsed the principle 

of no government funds going to abortion and-again-clearly endorsed the principle 

of not forcing healthcare professionals to act against the dictates of conscience. 

4 

But an executive order is not law. It can be rescinded at any time by this or any 

future president. It can be overturned by a judge, or simply ignored. 

If we wish to respect the views of those who don’t want their money used to finance abortion, if we wish to follow the wishes of the 60 to 70 percent of Americans 

who believe the government should not pay for the procedure-then Congress should 

send this bill to the President in short order. 

The President is clearly on record supporting the principles in this bill. When it 

gets to his desk, I believe he will sign it. 

The gentleman from New Jersey, the Ranking Member, Mr. Pallone, is now recognized for five minutes for an opening statement. 

The Chairman of the full committee, Mr. Upton, is now recognized for an opening 

statement. 

The Ranking Member, Mr. Waxman, is now recognized for an opening statement. 

Mr. LATTA. I thank you, chairman, for yielding and for holding 

this very important hearing on the Protect Life Act. And as the 

chairman designated in his opening remark stating that the majority of Americans are opposed to the Federal Government funding 

abortion. And the question, of course, came up during the bill, the 

‘‘Obamacare’’ legislation as to the use of federal taxpayer dollars to 

allow that coverage and also for the Stupak-Pitts amendment that 

was first supported, and then unfortunately we did not have, and 

then, of course, the Executive order. 

So I would just like to say, Mr. Chairman, that we have to be 

vigilant in our defense of human life and work past the Protect Life 

Act so that the government funding is not used to pay for abortions 

through the Federal Government. The Anti-life policies cannot be 

tolerated and it is because it is absolutely morally wrong and opposed by again as I said the majority of tax payers. The passage 

of the Protect Life is the first step towards putting an end once and 

for all for all taxpayer funding of abortion as well as fixing a deeply 

flawed health care bill. And I look forward to the hearing and when 

the bill becomes law. I yield back. 

Mr. PITTS. The gentleman’s time has expired. The gentleman 

from New Jersey, the Ranking Member Mr. Pallone is now recognized for 5 minutes for an opening statement. 

Mr. PALLONE. Thank you, Chairman Pitts. I look forward to 

working alongside you as well and the subcommittee and it is my 

hope that we can meet some common ground during this Congress. 

And I appreciate the comments you made in that regard. I just 

wanted to say briefly I remember the time when you—I told you 

I was going to the University of Pennsylvania farm in your district 

and I had a grand old time there with the pigs and the cows and 

all the other farm animals. And you still represent a good part of 

Lancaster County—— 

Mr. PITTS. All of Lancaster. 

Mr. PALLONE [continuing]. Which is a wonderful, peaceful, quiet 

place—the Amish, and it is just a nice place, so let us work together. I definitely think we can. 

Regardless of any one person’s views, though, on the topic today, 

I want to stress the current law is clear. No government funding 

can be used for abortion under the Affordable Care Act except in 

cases of rape, incest, and to save the life of the woman. And today 

is not about public funding in my opinion. Today is an attempt by 

my colleagues on the other side of the aisle to reopen the contentious issue of abortion and dismantle the landmark healthcare law. 

The bill before us in my opinion is too extreme. It is a massive 

5 

overreach from what was delicately negotiated during health reform and it extensively restricts women’s access to reproductive 

health services and life saving care. Its language does more than 

prevent federal funds from going to abortions. It is a step towards 

eliminating a choice that our Supreme Court has deemed legal and 

remains legal to this day. Religious and personal views should not 

put women’s lives at risk. 

Under current law, health care providers are obligated to provide 

emergency services, otherwise stabilize a patient, and make available the transfer to another facility should they take issue with 

performing abortion procedures. This bill eliminates these minimum moral obligations even to save a woman’s life. The bill in my 

opinion is not pro-life. It is anti-woman. The same members of this 

committee who voted to repeal the Affordable Care Act last month 

charged that it will interfere with the doctor/patient relationship. 

And I can’t think of a policy that is more intrusive of a doctor/patient relationship than the one before us today. 

I strongly believe women need and are entitled to safe, affordable 

health care options and this bill only serves to create health and 

financial challenges that may be impossible to overcome. Now I— 

whatever time I have left, Mr. Chairman, I would like to yield a 

minute each to Ms. Capps, Ms. Baldwin, and Ms. Schakowsky in 

that order. We will see if we can accommodate all three in my time 

and so start with Ms. Capps. 

Mrs. CAPPS. Thank you, Mr. Pallone. As you just stated, the notion that the Affordable Care Act allows for funding of elective 

abortion is false. So I must ask with national unemployment at 9 

percent and the potential that we have right here in this subcommittee to create and strengthen a critical work—health care 

work force of the jobs there, why are we here debating this extreme 

legislation that would instead take reproductive rights away from 

women. Mr. Chairman, the debate today isn’t about tax dollars or 

provider conscience. Instead it is about chipping away at the legal 

rights of women, including the right to receive life saving treatment or referrals from a hospital emergency room. Not even the 

Stupak Amendment we fought over last year tried to change this. 

It is disappointing that this committee, one that is so important 

to job creation and the economy is wasting our time on this extreme legislation. And it is downright appalling that we are spending our first hours as a subcommittee in this Congress trying to restrict a woman’s right. Now, instead—rights—instead of rehashing 

the culture wars we should be using our time in this subcommittee 

doing what the American people really want us to do, strengthen 

the economy and create jobs. And I yield to my colleague, Ms. Baldwin. 

[The prepared statement of Mrs. Capps follows:] 

PREPARED STATEMENT OF HON. LOIS CAPPS

Thank you, Mr. Chairman.I am troubled that we are here, rehashing the phony 

debate that the Affordable Care Act will become some sort of conduit for abortion 

payments. 

This is false. 

The non-partisan ‘‘fact-check.org’’ website makes it clear: the new law does not 

provide direct federal funding for abortion, except in cases of rape or incest, or to 

save the life of the pregnant woman. 

6 

In fact, the new health care reform law goes further. 

It states specifically that federal funds are not to be used for coverage of any other 

kinds of abortions. 

Add to this the existing Hyde Amendment, which has continuously been in law 

since the 1970s. 

And the President’s Executive Order specifically reaffirming that the provisions 

in the Hyde Amendment carry over to the new health care law. 

So, I must ask, with national unemployment at 9 percent, and the potential that 

we have-right here in this committee-to create and strengthen healthcare workforce 

jobs, why are we here debating this extreme legislation that would take reproductive rights away from women, again? 

Mr. Chairman, the debate today isn’t about tax dollars, instead it is about chipping away at the legal rights of women, one extreme provisions at a time. 

Perhaps Henry Hyde’s own words describe the intent of those who support this 

extreme legislation best: 

He proclaimed: ‘‘I would certainly like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle class woman, or a poor woman.’’ 

A careful read of the text shows that this bill does not just ‘‘codify Hyde.’’ 

Instead it goes far beyond: 

Original text of the bill-language signed on to by 173 anti-choice members of Congress would have limited rape and incest provisions to levels never before seen-‘‘no 

means no’’ would not have been enough. 

After public outcry, this language has been changed, but another, extreme, lifethreatening provision has been added. 

Specifically, the bill includes language to exempt hospitals from EMTALA requirements to treat or provide referrals to women in need of life-saving emergency abortion care, even if they will die without it. 

Not even the Stupak amendment we fought over last year tried to change this. 

This bill’s name is misleading-it does not protect life-instead it puts women and 

their families in danger. 

It is not a so-called protection of tax dollars-it is a not-so-veiled attempt to roll 

back the rights of all women by infringing on the way they spend their own money 

and the decisions they make for themselves. 

It is disappointing that this Committee, one that is so important to job creation 

and the economy is wasting our time here today. 

And it is downright appalling that we are spending our first hours as a subcommittee on legislation that is all about restricting women’s rights. 

Instead of rehashing the culture wars, we should be using our time in this subcommittee to do what the American people really want-strengthen the economy and 

create jobs. 

I yield back. 

Ms. BALDWIN. Thank you. I share your concern that the very 

first hearing that we are having in this Congress isn’t about creating jobs or bolstering our economy or helping families get health 

care coverage. Instead the majority has demonstrated that its top 

priority is attacking women’s rights. This legislation takes away a 

woman’s ability to make their own important life decisions about 

their reproductive health. And for—and this bill gives the government and insurance companies new power to make these decisions 

for them. And for that reason I think this legislation is extreme. 

This legislation is an unprecedented display of lack of respect for 

American women and for our safety. The bill would cut off millions 

of women from the private care that they have today. It would 

deny individual decision making by giving insurance companies 

more power and it would allow public hospitals to deny life saving 

care and dictate what women can do with their own health care 

dollars. With that I yield time to Jan Schakowsky. 

Ms. SCHAKOWSKY. I would like to use that time to ask the chairman if I could offer for the record from the Catholic Health Association a letter which takes exception with some of the provisions— 

one of the provisions of the bill and also from the National PartnerVerDate Nov 24 2008 14:50 Aug 09, 2011 Jkt 037690 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 P:\MY DOCS\HEARINGS 112\112-3 020911\112-3 CHRIS
7 

ship for Women and Families, and the National Health Law Program. 

Mr. PITTS. Without objection it will be added to the record. 

[The information appears at the conclusion of the hearing.] 

Mr. PITTS. All right, the gentleman’s time is expired. Thanks. 

Thank you to those who made statements and now the chair would 

recognize the chairman of the Full Committee, Mr. Upton, for 5 

minutes or such a time as he may consume. 

Mr. UPTON. Thank you, Mr. Chairman. I intend to use 1 minute 

and then yield 2 minutes to Dr. Burgess, a minute to the vice chair 

Sue Myrick, and a minute to Cathy McMorris Rodgers. So in my 

minute I want to again thank you, Mr. Chairman. The discussion 

draft before us closely tracks the Stupak-Pitts amendment that the 

house adopted by a strong bipartisan majority in the last Congress. 

This includes the Hyde amendment language that has continuously 

been adopted by Congress since 1993. Unfortunately the massive 

health care plan that was ultimately enacted by Congress contains 

numerous loop holes that allow federal subsidies to be used to purchase plans that pay for abortions. 

This bipartisan legislation today proposed by Chairman Pitts 

amends the health bill to clearly and statutorily prevent federal 

funding for abortion or abortion coverage through government exchanges, community health centers, or any other program funded 

or created by the new law. Additionally the bill protects the right 

of the conscience for health care professionals and assures that private insurance companies are not forced to cover abortion. I ask 

unanimous consent that my full statement be part of the record. I 

now yield to Dr. Burgess. 

[The prepared statement of Mr. Upton follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

Thank you Mr. Chairman, the Discussion Draft before us closely tracks the Stupak-Pitts amendment that the House adopted by a strong bipartisan majority during the 111th Congress. This includes the Hyde amendment language that has continuously been adopted by Congress since 1993. 

Unfortunately, the massive health care plan that was ultimately enacted by Congress contains numerous loopholes that allow federal subsidies to be used to purchase plans that pay for abortions. This legislation proposed by Chairman Pitts 

amends the health bill to clearly prevent federal funding for abortion or abortion 

coverage through government exchanges, community health centers, or any other 

program funded or created by the new law. Additionally, this bill protects the right 

of conscience for health care professionals and ensures that private insurance companies are not forced to cover abortion. 

Those of us who support the Hyde amendment are encouraged by the fact that 

its enactment has contributed to a reduction in the number of abortions and saved 

the lives of thousands of unborn children. A clear majority of Americans share our 

view that taxpayers’ dollars should not be used to pay for elective abortions. President Obama, among others, says that he wants to make abortion ‘‘rare’’. Let’s find 

common ground on this legislation by acknowledging that abortion is not health care 

and conscientiously opposed taxpayers should not be forced to subsidize abortion. 

Mr. PITTS. Without objection so ordered. 

Mr. BURGESS. I thank the gentleman for yielding and just a couple of observations as we take up this legislation today. The Protect 

Life Act is not applying anything new. It is not applying restrictions. It merely extends the status quo, that taxpayer dollars will 

not be used to subsidize elective abortions, and that is it. Similar 

8 

language has been—is found in the Hyde amendment, that was 

passed in 1976, and has been reauthorized in each Congress 

throughout the appropriations process. H.R. 358 is only preserving 

language that Congress and doctors and patients have relied upon 

for decades. It does not change or alter the practice of medicine or 

the responsibility of physicians in any way. Past and present the 

Congress has said we will not pay for elective abortions. That does 

not change in this legislation. 

Now, in my prior life I was a doctor. I am a doctor. I am an OB/ 

GYN and I do value the sanctity of human life. I do believe that 

it is a miracle that it can even occur and for us to interfere in a 

harmful way is something that as an OB/GYN I think it wrong. 

But I understand that some people do feel differently. I think it is 

important to codify with this language that we are responsible for 

the judicious use of taxpayer dollars. Now as a doctor, I am sworn 

to aid those in need and I reject when people say this legislation 

would prevent doctors from providing care in times of need. Integrity and the relationship with patients upholding the oath that we 

all take as physicians are fundamentals. Arguments that people 

will be harmed, let alone left to die at the door, are just simply not 

true. There is a suspension of belief required to think that elective 

abortions versus medically necessary procedures are—can in fact 

be comingled. I see my time is at an end. I will yield to the—— 

Mr. UPTON. Vice Chairman. 

Mr. BURGESS [continuing]. Vice Chairman. 

Mr. UPTON. Sue Myrick. 

Mrs. MYRICK. Thank you, Mr. Chairman. I am pleased to speak 

on behalf of this bill and I believe it represents a necessary improvement to the Patient Protection and Affordable Care Act that 

was signed into law last year. Americans broadly agree that taxpayer money should not subsidize elective abortions. This bill 

doesn’t affect the legality of abortion services for American women. 

It is not a sea change from current policy. In fact, it merely carries 

forth what is already true for federal health programs such as the 

Federal Employee Health Benefit Program, Medicaid, SCHIP, and 

the Indian Health Service. To my knowledge there is no evidence 

that prohibition of coverage for elective abortions in these programs 

has negatively impacted women’s health. I look forward to the testimony from our witnesses and I yield back. 

Mr. UPTON. And the chair recognizes Cathy McMorris Rodgers. 

Ms. MCMORRIS RODGERS. Thank you, Mr. Chairman. I, too, want 

to speak in support of the legislation. If we are committed to health 

care reform for everyone including women and children then health 

care protections for children should start at the moment their lives 

begin. We agree to allow children to stay on health care plans until 

age 26. We agree to provide our children’s coverage for pre-existing 

conditions, and eliminate annual and lifetime caps, but what does 

it all mean if we are not going to protect them at the moment their 

lives begin? Two thirds of women polled during the health care debate representing all parties, races, marital statuses objected to the 

Federal Government paying for abortions. I would urge all of my 

colleagues to join in supporting the Protect Life Act and I yield 

back the balance of my time. 

9 

Mr. PITTS. The chair thanks the members for their statements. 

The ranking member of the Full Committee, Mr. Waxman is now 

recognized for 5 minutes for an opening statement. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you very much, Mr. Chairman. I think we 

have to put this legislation in the context of this bill and other bills 

that are also moving in other committees on this very subject of 

abortion. Let there be no doubt about it. The objective is not to say 

the taxpayer’s funds cannot be used for paying for a termination 

of a pregnancy. The objective of all this legislation is to say no 

woman will be able to buy insurance in this country that will cover 

a necessary medical procedure involving the termination of a pregnancy. Even though it is legal and it is a medical decision now will 

be taken over by the Congress to be made for the women involved. 

The Affordable Care Act had a very sensitive, delicate balance 

and it was drafted in the Senate by Senator Nelson, whose pro-life 

record speaks for itself. That law prohibits the use of federal funds 

for abortion, keeps state and federal abortion related laws in place, 

it would not allow government tax credits to be used to pay for 

abortion services, but this bill goes beyond that. It would provide 

that there would in reality be no insurance policy for anybody buying in an exchange for health insurance to get a policy that would 

cover the termination of a pregnancy, even when it is medically 

necessary. This is an assault on women’s reproductive health and 

their constitutional rights to choose when to bear children. Mr. 

Chairman, I would like to ask unanimous consent that I be able 

to yield 2 minutes of my time to Ms. DeGette, who is not a member 

of this subcommittee, but a member of the Full Committee. 

Mr. PITTS. Without objection. 

Ms. DEGETTE. Thank you very much, Mr. Chairman. There are 

some days in Congress I feel like I am in Alice in Wonderland 

where everything is upside down and today is certainly one of 

those days. The extreme legislation that we are considering today 

is not just simply saying that there shall be no public funds for 

abortion. That is already the law. That is the Hyde amendment. I 

disagree with the Hyde amendment, but in the annual HHS Appropriations Bill every year it says no federal funds shall be used for 

abortion. This was also protected in the health care legislation last 

year. 

Let us be clear about what this extreme bill does. What this bill 

says is first of all it does codify Hyde, which is far beyond current 

law. But secondly, it says that anybody who purchases an insurance policy—an employer, or any American, male or female who 

purchases an insurance policy that covers all legal reproductive 

services now cannot have any kind of tax relief. So it is not about 

direct federal funding of abortion. We don’t have that. We don’t 

have that. What it is about is saying these indirect tax credits now 

will be interpreted as federal funding. That is the most vast restriction of a woman’s right to choose that any of us will ever see in 

our lifetimes and what it would lead to if it became law is that no 

individual in this country or business in this country could purVerDate Nov 24 2008 14:50 Aug 09, 2011 Jkt 037690 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 P:\MY DOCS\HEARINGS 112\112-3 020911\112-3 CHRIS
10 

chase an insurance policy that covered the full range of legal reproductive services unless they suffered essentially a tax increase. 

Mr. WAXMAN. Thank you, Ms. DeGette. 

Ms. DEGETTE. It is wrong. It is intrusive. And we just need to 

call it what it is. Thank you, Mr. Chairman. 

Mr. WAXMAN. I yield the rest of my time to Ms. Schakowsky. 

Ms. SCHAKOWSKY. Thank you, Mr. Waxman. Republicans ran on 

the promise of smaller government, but in fact it looks as if they 

want to reduce the size of government to make it just small enough 

so that it can fit in our bedrooms. This extreme legislation is an 

unconscionable intrusion into the important, and often wrenching, 

and often devastating life decisions of American women and their 

families. Not a single American woman’s rights are safe under this 

extreme bill. Already the Hyde amendment unfortunately makes 

sure that poor women and federal employees and military women 

can’t get the full benefits under the federal plans. But what this 

says is that women with their own money will be restricted from 

purchasing full reproductive services, including the right to terminate a pregnancy. It does raise taxes on businesses and individuals. One hundred sixty-three Republicans wanted to change the 

definition of rape. I think that is out of that bill now saying it can 

only be forcible. You have to prove that you were beat up I guess. 

And this can deny emergency care to save a woman’s life. Let us 

do what the American people want. Let us create jobs. Let us get 

to the business of the economy and start limiting the rights of 

women in America. 

Mr. PITTS. The chair thanks the members for their statements 

and we will now turn to our witnesses. Each of you has prepared 

statements that will be a part of the record, but I ask that you 

summarize your prepared statements in 5 minutes. 

Our first witness is an Associate Professor of Law at George 

Mason University School of Law, Helen Alvare ́. Professor Alvare ́

received her law degree at Cornell University in 1984 and a Master’s Degree in Systematic Theology from the Catholic University 

of America in 1989. She has practiced law with the Philadelphia 

firm of Stradley Ronan Stevens & Young specializing in commercial 

litigation and free exercise of religion matters. She also worked for 

the National Conference of Catholic Bishops drafting amicus briefs 

on abortion and a variety of U.S. Supreme Court cases. 

Next, we will hear from Professor Sara Rosenbaum, a Department of Health Policy Chair from George Washington University. 

Professor Rosenbaum received her Jurist Doctorate from Boston 

University Law School and has focused her career on health care 

access for low income, minority, and medically underserved populations. She also worked for the White House Domestic Policy 

Council during the Clinton Administration where she directed the 

drafting of the Health Security Act. While serving on numerous national organizational boards, she has also co-authored a help law 

textbook ‘‘Law and the American Health Care System’’. 

Finally, we will hear from Douglas Johnson, Federal Legislative 

Director from the National Right to Life Committee, who will offer 

his testimony. Mr. Johnson has served as the Legislative Director 

of the NRLC since 1981. Over the past several years, Mr. Johnson 

has written extensively on the abortion related issues raised by 

11 

various bills to restructure the health care system including the 

Patient Protect and Affordable Care Act. He has also published extensively on other right to life issues, including partial birth abortion, fetal homicide, and human cloning, as well as on issues relating to restrictions on political free speech and critiques of how the 

news media covers some of these issues. So at this point I will recognize Ms. Alvare ́. 

STATEMENTS OF HELEN M. ALVARE, ASSOCIATE PROFESSOR 

OF LAW, GEORGE MASON UNIVERSITY SCHOOL OF LAW; 

SARA ROSENBAUM, J.D., HIRSH PROFESSOR AND CHAIR, DEPARTMENT OF HEALTH POLICY, SCHOOL OF PUBLIC 

HEALTH AND HEALTH SERVICES, THE GEORGE WASHINGTON UNIVERSITY; AND DOUGLAS JOHNSON, LEGISLATIVE DIRECTOR, NATIONAL RIGHT TO LIFE COMMITTEE 

STATEMENT OF HELEN M. ALVARE 

Ms. ALVARE. Thank you, Mr. Chairman. Good afternoon and 

thank you for this opportunity. My testimony today will address 

conscience protection in health care under the Protect Life Act. Initially I want to say that there is no need for us to view the matter 

of conscience protection as a zero-sum game between consciencedriven health care providers and the patients they serve particularly the most vulnerable. Opponents of conscience protection are 

portraying the situation this way but the opposite is true. It is by 

protecting conscience and elevating respect for life in health care 

that we are likely as a Nation to serve and reflect the values of 

most Americans particularly the vulnerable. 

This can be understood from several angles. First, less privileged 

women are less likely to support abortion or abortion funding then 

their more privileged sisters or than men. They are also less likely 

to abort their nonmarital pregnancies than more privileged women. 

Second, abortion has not mainstreamed into American health care 

even 38 years after Roe. It remains, in the words of the New York 

Times ‘‘at the margins of medical practice’’. This, I believe, is why 

opponents of conscience want to force the government and conscience-driven providers to give them what the market has steadfastly refused—dispersed sources for abortions in hygienic medical 

settings. 

Instead, today we have this: 87 percent of counties with no abortion provider, a small percentage of doctors willing to perform it according to the Guttmacher Institute because of stigma issues. Ninety-five percent of abortions delivered in clinics and not hospitals or 

doctor’s offices. Just recently even an affiliate of Planned Parenthood, our largest abortion provider quit the national organization 

over its insistence they provide abortions. Finally, there are the 

regular reports of unhygienic or even horrific conditions at abortion 

clinics. 

In recent weeks we can’t have missed the reports about Planned 

Parenthood employees offering to cooperate with someone posing as 

a sex trafficking ring director of minor girls as young as 13. 

Planned Parenthood has acknowledged it needs nationwide retraining. Third, there’s an emerging scientific and cultural willingness 

to conclude that abortion is killing and not health care for women. 

12 

Not only is this the word used by a majority of our Supreme Court, 

but abortion providers and supporters of abortion rights are using 

it regularly. More broadly, and I think this is new with respect to 

women’s flourishing, there is emerging a critical mass of evidence 

from respected scholars and peer review journals that more easily 

available abortion is associated with women’s what they are calling 

‘‘immiseration’’, that is, making them miserable not their flourishing. Associate, that is, with creating a market for sex and mating that demands more uncommitted sexual encounters contrary to 

women’s empirically demonstrated preferences thereby producing 

more sexually transmitted diseases, more nonmarital pregnancies, 

more single parenting, more abortions, more poverty. 

Women of color, immigrants, and poor women are suffering the 

most from this. If opponents of conscience protection want to encourage high quality health care for women, they couldn’t do better 

than ally themselves with supporters of conscience. These are the 

kinds of providers and institutions with a thick sense of vocation 

and a record particularly of assisting vulnerable women. These are 

not the providers we want to drive out of health care. 

The Protect Life Act will assure that conscience-driven providers 

remain in this marketplace. It adds protections for them which reinstate the status quo but were not present in the Affordable 

Health Care Act. It adds protections regarding training for abortion 

and protects health care entities and providers against discrimination by governments and federally funded institutions—an important oversight. It explicitly protects existing state conscience protections from federal preemption. The Affordable Care Act also 

lacks sufficient enforcement mechanisms in connection with the 

limited conscience protections it did offer. 

In conclusion, the freedom of religion and moral conscience is enshrined in the universal declaration of human rights. Our own 

President Obama has urged ‘‘secularists are wrong when they ask 

believers to leave religion at the door before entering the public 

square.’’ Our founders understood that human beings require respect for conscience as a condition for living in freedom and integrity. Our founders knew and we know and we can ever measure 

it today, the relationship between the flourishing of religion and 

moral conscience and a good society. When it comes to abortion, 

conscience protection in some form has been the common ground 

between all sides of the debate even before Roe. Even when abortion was legal before Roe, conscience protections were attached to 

it. Our Supreme Court called them in Doe v. Bolton ‘‘appropriate’’. 

So it is contrary today to common sense those insisting that health 

care providers check their consciences at the door. This should be 

recognized for the marginal and dangerous opinion that it is. 

Thank you. 

[The prepared statement of Ms. Alvare ́ follows:] 

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Mr. PITTS. Thank you. 

Please pardon the interruption to the witnesses, but a vote has 

been called on the floor. There are two votes, so the committee will 

stand in recess for votes and reconvene 15 minutes after the last 

vote to resume the hearing. Thank you. Committee’s in recess. 

[Recess.] 

Mr. PITTS. The meeting will come to order. Thank you for your 

patience to the witnesses as the members were called to the floor 

for a vote. We have heard from Professor Alvare ́. Next we will hear 

from Professor Sarah Rosenbaum. Welcome. 

STATEMENT OF SARA ROSENBAUM 

Ms. ROSENBAUM. Thank you very much Mr. Chairman and members of the Committee for providing me with the opportunity to 

speak before you today. The Hyde amendment and existing conscience protections both were expressly incorporated into the Affordable Care Act through section 1303 in order to ensure the preservation of conscience and to protect against public funding for 

abortions. The Protect Life Act would dramatically expand the 

reach of abortion prohibitions beyond the furthest limits of the 

Hyde amendment by incorporating its prohibitions direction into 

the Internal Revenue Code. The bill would achieve this result by 

amending the ACA to bar the use of premium tax credits, even 

though these credits must in many cases be repaid from personal 

income, if earnings increase for privately purchased health insurance products, if those products cover medically indicated abortions 

for which federal funding is barred, and even if the abortion coverage is paid for out of private income. This would be an enormous 

break from the existing provisions of law which allow tax credits 

to be used for products even if those products cover medically indicated abortions so long as that component of the product is purchased with private funding. 

This change would produce three results. For the first time, the 

IRS would be required to assume major policy making and enforcement responsibility where federal abortion policy is concerned. 

Among its responsibilities the agency would be obligated to develop 

implementing policies that define critical terms. The IRS would 

have to define abortion in order to separate allowable claims such 

as claims related to spontaneous abortions and miscarriages from 

prohibited claims for induced abortions that fall outside allowable 

federal legal parameters. The IRS would have to define rape. It 

would have to define incest. It would have to define what is ‘‘a 

physical disorder, physical injury, or physical illness’’ that would as 

certified by a physician place the female in danger of death. The 

IRS would also need to establish a plan certification system to assure front end compliance as well as medical audit procedures for 

measuring corporate compliance. 

Second, health plans could be expected to exit this optional coverage market entirely rather than expose themselves to IRS standards, audits, disallowances, and exposure for potential legal violation. The law would continue to permit but of course not require 

a plan to cover certain distinct types of abortions, but the consequences of crossing the line for a plan would be potentially so severe, i.e., loss of the right to sell qualified products in exchange, 

25 

that there is really no business reason to risk this kind of corporate 

exposure. This is particularly true given the weak market for this 

kind of a product that is a supplemental product in view of the 

modest income of so many people who will be buying their coverage 

through exchanges. 

Women also conceivably could risk loss of coverage of abortion of 

important health care if they abortion supplements ironically. A 

health plan could deny claims that in the plan’s view fall within 

what the plan would consider an abortion related exclusion as defined by the plan. Clearly such an exclusion would apply to treatment of the after affects of a medically indicated abortion whose 

aim is to restore a woman’s health in childbearing. So, for example, 

if an abortion undertaken for physical health reasons resulted in 

sepsis, the plan would potentially exclude treatment of sepsis and 

aftercare for sepsis because it is related to the abortion. 

Another example would be following up on treatment for stroke 

level blood pressure triggered by a pregnancy that is terminated for 

health endangerment reasons. The plan conceivably could deny ongoing treatment because the blood pressure was a condition 

brought on by a pregnancy that ended in an excluded abortion. 

While such a decision may be reversed on appeal, critical care 

could be lost. 

Finally, the conscience clause provisions bear focus. They accomplish three goals. First, they explicitly strip legal protections from 

entities that are the subject of discrimination because of their willingness to provide lawful abortions. Second, the provisions create 

an expressed private right of action for both money damages and 

injunctive relief against State and Federal Governments for ‘‘actual’’ or ‘‘threatened’’ violations of the law without definition. Third, 

the nondiscrimination provision raises great uncertainty around 

EMTALA. While uniform enforcement of EMTALA screening, stabilization, and medical transfer requirements against federally obligated hospitals constitutes anything but discrimination, in my view 

if you are enforcing the law uniformly you are not discriminating. 

The fact is that the newly recodified provisions without clarifying 

language raise troubling questions for administrative and judicial 

enforcement. I have the utmost respect for religious healthcare institutions, but the literature including articles published in the 

peer review literature demonstrate instances in which crucial treatment involving pregnant women was withheld or delayed over 

what is termed conscience. EMTALA is a paramount protection 

unique in all of health law and in my view Congress should take 

no action that begins for any reason the long unraveling of its absolute safeguards. 

[The prepared statement of Ms. Rosenbaum follows:] 

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Mr. PITTS. Chair thanks the gentlelady and now for the final witness, Mr. Douglas Johnson. 

STATEMENT OF DOUGLAS JOHNSON 

Mr. JOHNSON. Mr. Chairman, before I begin I would just like to 

note that we are not getting any time information. This device is 

not working, so if you could give me some sort of 90 second warning. 

Mr. PITTS. So sorry—we will correct that. 

Mr. JOHNSON. I would appreciate it. Chairman Pitts, distinguished members of the subcommittee, I am Douglas Johnson, Federal Legislative Director for the National Right to Life Committee 

or NRLC. NRLC is the Federation of State Right to Life organizations nationwide. NRLC supports the Protect Life Act as well as 

the more comprehensive government wide approach incorporated in 

the No Taxpayer Funding for Abortion Act, H.R. 3. 

The Protect Life Act could correct the new abortion expanding 

provisions that became law as part of the so called Patient Protection and Affordable Care Act or PPACA. That law contains multiple provisions that authorized subsidies for abortion as well as 

provisions that could be employed for abortion expanding administrative mandates. Some of these objectionable provisions are entirely untouched by any limitation on abortion. While others are 

subject only to limitations that are temporary, contingent, and/or 

riddled with loopholes. Federal funding of abortion became an issue 

soon after the U.S. Supreme Court decision Roe v. Wade and by 

1976 the federal Medicaid program was paying for 300,000 elective 

abortions annually. If a woman or girl was Medicaid eligible and 

wanted an abortion then abortion was deemed to be ‘‘medically necessary’’ and was federally reimbursable. Unfortunately that pattern 

was generally replicated in other federal health programs.And so 

beginning in the late 1970’s Congress applied restrictions to nearly 

all of them but this was done in a piecemeal, patchwork fashion. 

And many of these protections were achieved through limitations 

amendments to annual appropriation bills. This is a disfavored 

form of legislation. For one thing, the limitation amendments expire with the term of each appropriation bill which is never more 

than 1 year. Some of the pro-life policies have in fact been lost for 

varying periods of time because of their transient nature. For example, because of the actions of the 111th Congress and the Obama 

White House, today congressionally appropriated funds may be 

used for abortion for any reason at any point in pregnancy right 

here in the Nation’s capitol. And that is being done, as reported in 

today’s Washington’s Post. 

We believe that when Congress creates or reauthorizes or expends a health insurance program it should write the appropriate 

abortion policy into the law as was done with the SCHIP program 

when it was created in 1997. During the 111th Congress we strongly advocated that all programs created or modified by the health 

care bill should be governed by explicit permanent language to 

apply the principles of the Hyde amendment to the new programs. 

I wish to underscore here what many have tried to obscure. The 

language of the Hyde amendment prohibits not only direct federal 

funding of abortion, but also funding of plans that include abortion. 

34 

I would refer to my written testimony in footnote 10 for the full 

text of the Hyde amendment and you will see that it refers to funds 

that go to any trust fund from which includes coverage of abortion. 

And this is explicitly defined to include the ‘‘package of services 

covered by a managed care provider or organization pursuant to a 

contract or other arrangement.’’ Very similar language is found in 

the abortion related provisions that govern other federal health 

programs, for example, SCHIP and the Federal Employee’s Health 

Benefits Program. This exact language is in footnote 12 of my written testimony. 

I have also submitted to the Committee a 24-page affidavit that 

I executed that explains four of the major components of the 

PPACA that authorized subsidies for elective abortion. Its focus is 

primarily on 1, the pre-existing condition insurance program; 2, the 

federal tax credit subsidies for private health plans that cover elective abortion; 3, authorization for funding of abortion through community health centers; and 4, authorization for inclusion of abortion in health plans administered by the federal office of personnel 

management. And Mr. Chairman, it is not an exhaustive list. 

To summarize, in the PPACA there is nothing on the way that 

remotely resembles the Stupak-Pitts amendment. Instead of bill 

wide language to permanently apply the Hyde amendment principles we find a hodgepodge of artful exercises and misdirection, 

bookkeeping gimmicks, loopholes, ultra-narrow provisions that 

were designed to be ineffective, and provisions that are rigged to 

expire. We find abortion authorizations that are permanent and 

limitations that expire. 

As to President Obama’s Executive order it is a hollow political 

construct. As discussed further in my written testimony and in the 

affidavit, it consists mostly of rhetorical red herrings, exercises in 

misdirection, and was characterized by the president of Planned 

Parenthood as a symbolic gesture. 

[The prepared statement of Mr. Johnson follows:] 

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Mr. PITTS. Thank you. Chair thanks the witnesses for their statements. Your entire written testimony will be made a part of the 

record and at this time we will go to questioning for the members 

of the committee. Chair recognizes himself for 5 minutes for questions. First for Professor Alvare ́. If Catholic hospitals were to lose 

their tax exemptions and have to close their doors because they 

refuse to perform abortions what would be the impact on the playing—— 

Ms. ALVARE. Can’t claim to be representative of Catholic hospitals. I do know that there is information that you can easily access regarding their services in poor areas. Just as one example 

that I brought with me today. One, the third largest Catholic hospital system in the United States, its statistics alone 19 States, 73 

hospitals, 900—excuse me, $590 million in charity care and a great 

deal of loss as a result of that. Because of the charity care it is nonprofit and they regard themselves as having a particular commitment to the poor, to free clinics, to education, and research. These 

hospitals have empirically demonstrated that they provide the 

kinds of services to women and the poor in particular that are exemplary and are thought to be superior in many ways to other 

kinds of hospital systems. 

Mr. PITTS. Thank you. Mr. Johnson, in your testimony you estimated that more than one million Americans are alive today because of the Hyde amendment limitations on government funding 

of abortions. What would be the effect of authorizing government 

funding of abortion nationwide as a routine method of healthcare? 

Mr. JOHNSON. Mr. Chairman, this estimate is based on studies 

done by the Guttmacher Institute and other critics of the Hyde 

amendment and they have given figures. The lowest figure being 

the reduction of abortions among Medicaid eligible population has 

been on the order of one in four. There have been some estimates 

as high as one in two, that if one takes even the lowest estimate, 

the 25 percent figure and extrapolates that over the life of the 

Hyde amendment there are indeed more than one million Americans alive today because of that policy. So we have heard President 

Obama speak about his desire for abortion reduction. We believe 

the Hyde amendment has proven itself to be the greatest domestic 

abortion reduction policy ever enacted by Congress and yet it has 

been characterized by in a 19—rather a 2007 Guttmacher Institute 

monograph as a ‘‘tragic result of the Hyde amendment’’ these one 

million births. Mr. Chairman, we think it stands to reason that if 

the Hyde amendment is overturned or effectively circumvented by 

these mechanisms in the PPACA, the effect is going to be more 

abortions, not abortion reduction. We think that anyone who thinks 

that the million plus Americans who walk among us today because 

of the Hyde amendment constitute a tragic result should vote 

against your bill. But those who believe otherwise we respectfully 

submit should vote for it. 

Mr. PITTS. To follow on, Mr. Johnson, given that President 

Obama and the 111th Congress greatly expanded the role of government in the private insurance market does it seem reasonable 

that Congress would correspondingly try to extend the Hyde 

amendment and similar measures to prevent taxpayer subsidies for 

elective abortions? 

85 

Mr. JOHNSON. These principles have been in place with respect 

not only to the Health and Human Services Appropriation Bill and 

Medicaid, but in a great many other programs as well including as 

I mentioned the Federal Employees Health Benefits Program 

which of course covers most members of Congress and their staffs, 

and about eight million others. For most with one brief interruption for the last 24 years, the 200 plus private plans that participate in that program have been required as a condition of participation not to cover any abortions except life of the mother, rape, 

and incest. It is not a bookkeeping scheme like you find in PPACA. 

It doesn’t say they can—no, it says they can’t participate in the 

program if they cover any abortions. And you know, the scenarios 

that we have heard spun out about how it is impossible for insurers to handle this, the IRS will never be able to administer it—the 

experience of the Federal Employees Health Benefits Program 

itself I think disproves these sorts of fanciful scenarios. 

Mr. PITTS. In other words under the Federal Employee Health 

Benefits Plan—Program now, you can purchase abortion coverage 

with your own money. Is that correct? 

Mr. JOHNSON. Within the program itself there is no abortion coverage. It is prohibited by the limitation on the Annual Appropriation Bill. Insurers are not required to cover any abortions to participate in the programs, but they are forbidden to cover any other 

than life of the mother, rape, and incest and that has been the case 

for almost a quarter of a century. Now, there is nothing of course 

to stop any private individual from going out and purchasing abortion coverage with their own resources on the private market if 

they choose to do so. I suspect from the data we have seen that 

very few people do that. 

Mr. PITTS. Thank you. Chair thanks gentleman, and now recognizes the ranking member Mr. Pallone for 5 minutes for questioning. 

Mr. PALLONE. Thank you. I want to ask each of the panelists just 

a yes or no answer. There is a lot of frustration by myself and on 

the democratic side of the aisle that you know we are in the midst 

of a recession, maybe we are getting out of it hopefully, but it is 

still out there, and that we should be spending our time focused on 

the economy and on jobs. And in all honesty just like the Health 

Care Repeal, I don’t see that even if this bill passes the House it 

has any chance of garnering 60 votes in the Senate or being approved by the President. So I just wanted to ask you, is there anything in this legislation that creates jobs? Just a yes or no and then 

I will move on. Start with Mr. Johnson. Yes, or no, does this legislation in any way created jobs? 

Mr. JOHNSON. Mr. Pallone, I have no competence to answer that 

question. 

Mr. PALLONE. All right, Ms.—— 

Mr. JOHNSON. I would be—— 

Mr. PALLONE. Alvare ́? I will just move on. 

Ms. ALVARE. Nor do I. I am here to testify on conscience. 

Mr. PALLONE. OK. And Ms. Rosenbaum? 

Ms. ROSENBAUM. It doesn’t appear to me that it does. 

Mr. PALLONE. All right, thank you. Now let me ask—is it Alvare ́? 

Is that how you pronounce it? Now, I am sorry, this is for Dr. 

86 

Rosenbaum and I am going to come to you if I have time. The 

EMTALA statute prohibits hospitals from dumping a patient who 

is medically unstable. If a patient arrives in a life threatening situation the hospital must treat them until her life is no longer in 

danger. The Health Reform Law made clear that the conscience 

protections that were written into law did not repeal or amend the 

basic EMTALA provisions requiring hospitals to treat a patient 

until she is stable. Now the Pitts legislation changes that. It says 

that EMTALA is subject to the abortion provisions. So Dr. Rosenbaum, what does that do? Does that mean if a pregnant woman’s 

life is in danger and the medically indicated response is to terminate the pregnancy to save her life that the hospital can refuse her 

emergency care or refuse to transfer her to another facility that 

would perform such a life saving procedure? 

Ms. ROSENBAUM. As long as the later amendment, this amendment is unclear, the impact of EMTALA, the impact of the amendment on EMTALA is similarly immeasurable at this point. To the 

extent that the statute raises questions about whether or not 

EMTALA applies, and also creates a federal right of action to seek 

an injunction against the actual or threatened enforcement of a 

federal law that discriminates against a hospital, an administrative 

agency and a court would face a very difficult situation in which 

they would have to reconcile the language of EMTALA which 

seems to be an obligation on the part of hospitals against an express authority now in the statute to be able to essentially to be 

able to essentially evade what is an EMTALA obligation which is 

of course stabilization or medically appropriate—— 

Mr. PALLONE. But my fear is that if this bill were to pass, and 

again, I don’t see how that happens, but if it were to become law 

that you could have a situation where the hospital can refuse the 

woman emergency care—— 

Ms. ROSENBAUM. But what—— 

Mr. PALLONE [continuing]. Or refuse to transfer her to another 

facility that would perform the—save her life. 

Ms. ROSENBAUM. It would appear that way. I mean, this is the 

problem. It is a later amendment that does not clarify how it is to 

be applied in an EMTALA situation. And so a court or an administrative agency would be faced with a very difficult question and it 

would seem to imply that the later legislation actually alters the 

EMTALA provision. 

Mr. PALLONE. And so that could happen? 

Ms. ROSENBAUM. Yes. 

Mr. PALLONE. OK. Now let me ask Ms. Alvare ́. You say that the 

bill before us today would protect individuals and entities who are 

not willing to provide all medical choices to women and their families even in life saving situations. Now, this is the conscience aspect. Why shouldn’t these protections apply equally to all beliefs? 

In other words, why shouldn’t we protect those who believe that 

they have a moral obligation to provide all medical service choices 

in this case, one that is legal in the country to a woman and families. I mean, I will give you an example. My concern is, Catholic 

hospital, I guess, religious hospital that doesn’t believe in abortion. 

You know, administrator or doctor, or somebody makes a decision 

that because of the mother’s life that they are going to perform the 

87 

abortion and it is contrary to the beliefs of that particular religious 

hospital, and then they fire them or they don’t hire them because 

they say that they would perform an abortion in that circumstance. 

So why aren’t we protecting that person so they can’t be fired or 

they can’t be discriminated against? Or would you protect them as 

well? 

Ms. ALVARE. One thing is that our law, the Supreme Court has 

said it—whether in the Harris v. McRae or the Webster decision, 

our Supreme Court has said that government can favor life over 

abortion. It can favor bringing children into this world versus taking their life. 

Mr. PALLONE. But the bottom line is then you wouldn’t protect 

that person against that type of discrimination. 

Ms. ALVARE. In 38 years of legal abortion there has never been 

a situation, not one, where a woman lost her life because she needed an abortion and didn’t get one. So the idea that it is a medical 

choice is even contradicted by the evidence, let alone by statements 

by people like Dr. Guttmacher of Guttmacher Institute who said he 

really couldn’t imagine a situation in which you couldn’t deliver the 

child and protect the mother’s life without that. 

Mr. PALLONE. But it sounds like you wouldn’t be in favor of passing a law that would do that, that would protect the person. 

Ms. ALVARE. In 38 years since Roe v. Wade, there has never been 

a conflict. The Catholic Health Association letter that was referred 

to as coming in here today indicated that they had never had a conflict in 38 years. 

Mr. PALLONE. No, but I am just asking you if you would be in 

favor of that kind of a law. 

Ms. ALVARE. You would have to overturn EMTALA then because 

EMTALA itself and I have the provision with me—Section 

1395DD(e) says when faced with pregnant woman and child you 

most ‘‘stabilize the woman and her unborn child’’. So I think you 

would have to first of all change what EMTALA says is emergency 

care in order to say we would have to kill to provide care. EMTALA 

says stabilize to provide care. 

Mr. PALLONE. I don’t think I am going to get an answer so we 

will move on. 

Mr. PITTS. OK. Chair thanks the gentleman and recognizes the 

Vice Chairman of the Subcommittee, Dr. Burgess, for 5 minutes. 

Mr. BURGESS. Thank you, Mr. Chairman. Well, in fact, Mr. 

Pallone, I think you got your answer. EMTALA, if I understood the 

comments correctly actually specifies protection of the unborn. 

Does it not? 

Ms. ALVARE. Yes, sir, it does. It is 42 U.S.C. 1395DD subsection 

E, it talks about if you are faced with a pregnant woman ‘‘the 

health of the woman or her unborn child is in serious jeopardy you 

must stabilize them both.’’ 

Mr. BURGESS. Well, it is interesting that you said in 38 years of 

law since the Supreme Court ruling in the early 1970s—I was 

thinking back and trying to remember the specific clinical situation 

that would have occurred that is being referred to here over and 

over again and in 25 or 28 years of medical practice, four of which 

at Parkland Hospital, a major downtown public health facility, it 

never happened. So I guess sometimes we do try to legislate to the 

88 

most extreme case, but we are trying to legislate to a case that no 

one can identify. Ms. Rosenbaum, Dr. Rosenbaum, you have referenced in your opening statement that you have cases from—I 

think you said from Catholic hospitals where care was compromised. Do you have such a body of case reports that you could 

supply to the committee? I don’t necessarily need to hear about 

them today, but I would be very grateful if you would supply those 

clinical situations to the committee so that we might evaluate 

where those situations have occurred. Because apparently in the 

legal literature in 38 years there are not any. My own personal experience for almost 30 years there are not any. I just fail to see 

where are we trying to govern with this. And it is well established 

again in EMTALA and in federal statute that the life of the mother 

of course can be protected. So there are extreme problems that do 

occur, big pregnancy, cancer of the cervix, required radial therapy, 

well recognized that is going to be deleterious to the pregnancy but 

you do protect the life of the mother. OK. That—a rare occurrence, 

but it does happen and it is taken care of under current law, under 

PPACA, under the Executive order, under all existing conditions 

today. So again, if you have those circumstances I pray that you 

would share them with the committee. 

Ms. ROSENBAUM. Certainly. There are both actually peer reviewed literature references and the case that arose in Arizona last 

summer involved a near—a woman who was on the verge of death 

and who was in an early stage of pregnancy. I would also note that 

EMTALA actually specifies that the obligation to save a life runs 

independently to the woman and/or her unborn child. So it is not 

a matter of only being able to save them as a unit. It is a matter 

of having to save whatever life—— 

Mr. BURGESS. Yes, let me stop you there because in present day 

practice of obstetrics in this country, having to choose between the 

life of one and the life of the other as a practical matter that just 

doesn’t come up. It just doesn’t. There are—yes, there are pregnancies that cannot be saved. We all recognize—heartbreaking 

when they happen. Yes, there are situations that the baby has to 

be delivered so early that it may have a tough go and may not survive. We all recognize when that happens, but it is just rare. I 

can’t—and again, I am trying to think back in my own volume of 

clinical experience which was not insignificant. I cannot remember 

ever having to stand outside the patient’s room with the family and 

say look, we got to make a decision here. It is one or the other. 

Which would you have me save? It just simply doesn’t happen. And 

nothing that we are doing here today—I think, we may add just 

intellectual discussion, but as a practical matter I don’t think we 

are affecting anything at all one way or the other again, either in 

PPACA, Executive order, EMTALA, or any existing statute. Let me 

just ask you, Ms. Alvare ́ one quick question. Some opponents of the 

legislation that is under consideration today seem to suggest that 

by denying taxpayer funding of termination of pregnancy that we 

are denying access to a basic form of health care. Is elective termination of pregnancy a basic form of health care? 

Ms. ALVARE. I think I wish I had an M.D. in addition to my J.D. 

In the legal literature it has been increasingly said and the Supreme Court’s decision in the Gonzales v. Carhart said it most baVerDate Nov 24 2008 14:50 Aug 09, 2011 Jkt 037690 PO 00000 Frm 00094 Fmt 6633 Sfmt 6633 P:\MY DOCS\HEARINGS 112\112-3 020911\112-3 CHRIS
89 

sically. They referred to abortion as killing. The improvements in 

embryological knowledge, genetic knowledge, et cetera that lawyers 

use in order to come to a hearing like this and make our case, in 

order to make State legislation refer more and more to characteristics of unborn life that place it firmly within the context of being 

a member of the human family. 

Mr. BURGESS. And I would just say the 38 years since Roe v. 

Wade the game changer has been the refinement of 

ultrasonography as a clinical tool. What became just something in 

theory in 1971 is very much reality today with the ability to look 

inside and make determinations about the health and condition of 

a baby well before the time of birth. These technologies didn’t exist 

at the time of Roe. You talked about this procedure has been 

pushed almost of the periphery of the practice of medicine. And I 

think that is a big reason why. Thank you. 

Ms. ALVARE. Thank you. 

Mr. PITTS. Chair thanks gentleman. Chair recognizes the ranking member Mr. Waxman for 5 minutes. 

Mr. WAXMAN. Thank you very much, Mr. Chairman. Ms. Alvare ́

just to follow up on that line of questioning, abortion is sometimes 

a medically necessary procedure, medical procedure. Do you agree 

with that statement? 

Ms. ALVARE. Again, I would like to quote Dr. Guttmacher, the 

founder of the Guttmacher Institute. In 1967 when obstetric care 

was not even as good as it is now who said today it is possible for 

almost any patient to be brought through pregnancy alive unless 

she suffers—— 

Mr. WAXMAN. No, I really—excuse me. I really asked you the 

question. Do you think that it could be a legitimate medical procedure? 

Ms. ALVARE. I have to rely on the doctors, sir, and looking at—— 

Mr. WAXMAN. And what does—the doctor says yes or no? 

Ms. ALVARE. He says even if she suffers from a fatal illness such 

as cancer or leukemia, abortion would be unlikely to prolong much 

less save life. I can provide you with additional medical literature—— 

Mr. WAXMAN. Well, we do allow abortion under the Hyde language to save the life of the mother. Do you acknowledge that there 

could be circumstances where the life of the mother would be lost 

if a termination of a pregnancy didn’t take place? 

Ms. ALVARE. Not having been present when that was negotiated, 

I imagine that that is the kind of thing that in politics is said and 

is not necessarily have referenced to the medical literature. But in 

public debate and at public insistence they want the language of 

life of the mother whether it is—— 

Mr. WAXMAN. You would be against abortion under any circumstance. Is that an accurate statement? 

Ms. ALVARE. I would not—yes, I would not say we could knowingly kill human life. 

Mr. WAXMAN. OK. Well, I respect that point of view. I respect the 

idea of a conscience clause. I would not want you if you were a 

medical person to have to perform an abortion even though some 

people would say it would be appropriate under the circumstance. 

And that is why I support this conscience clause idea because a 

90 

Catholic doctor shouldn’t be required to perform abortions if that 

individual feels that way. A Catholic hospital shouldn’t be required 

to do it either. The Affordable Care Act is very clear on this point 

and does provide these protections for people with a conscience. 

But let me ask you this. If a doctor in good conscience or a nurse 

felt that they were morally required to provide an abortion to a victim of a rape who requests it would you respect that as a conscience clause protection? 

Ms. ALVARE. Again, I prefer what the Supreme Court has said 

on this and I am glad they have, which is that the State can prefer 

life over abortion. And if a doctor feels that he or she wants to do 

that then probably they should steer clear of conscience driven 

health care facilities as a place of employment. 

Mr. WAXMAN. Well, they have a different conscience than you. 

Ms. ALVARE. They are free to do it elsewhere. 

Mr. WAXMAN. They have come to a different conclusion than you 

do. 

Ms. ALVARE. Yes. 

Mr. WAXMAN. You want us to protect the conscience of someone 

out of adherence to the Catholic Church not to provide abortions. 

Would you respect the fact that someone with a different religious 

point of view or maybe even a Catholic as well who would say I 

think this would be morally reprehensible not to provide a victim 

of a rape, a rape a service to terminate the pregnancy. Now let me 

ask that to Ms. Rosenbaum because—— 

Ms. ALVARE. Could I respond to one thing? 

Mr. WAXMAN. Sure. 

Ms. ALVARE. I would also—I don’t think this is just about Catholics. Morally pro-life atheists—— 

Mr. WAXMAN. Well it is not. 

Ms. ALVARE ́ [continuing]. I hope would get just as much protection. 

Mr. WAXMAN. You are absolutely right, but people’s conscience 

ought to be respected. It ought to be both ways. If we are going to 

say we want to respect the conscience of the person who doesn’t 

want to do abortions, I think we have to respect the conscience of 

someone who feels it is morally required of them to perform that 

service. Let me ask you about the provision in this bill because it 

says State laws can allow insurance companies to refuse coverage 

of emergency contraception. Well now, let me go back. There is one 

provision in this bill that says State laws can do more than discriminate on abortion because they can look at the conscience on 

other issues as well. Originally it had conscience related to abortion 

but struck the abortion. It said whenever there is a conscience 

issue that conscience issue ought to be respected. I would like to 

know whether this can be read to say that State laws can allow insurance companies to refuse coverage of family planning and contraception because it offends the company’s conscience. 

Ms. ALVARE. Excuse me, sir, could you tell me which provision 

that is because I came with the Protect Life Act. 

Mr. WAXMAN. Section 1303 of the Affordable Care Act dealt exclusively with treatment of abortion. And then this bill strike regarding abortion out. Ms. Rosenbaum, do you know—are you familiar with the provision? 

91 

Ms. ALVARE. I do know what you are talking about now. 

Mr. WAXMAN. OK. Well I—— 

Ms. ALVARE. I am sorry, would you like me to answer that? 

Mr. WAXMAN. I would like an answer, yes or no answer, because 

it seems to me they would be allowed—an insurance company 

would be allowed to say that you can’t have family planning or contraception. 

Ms. ALVARE. That might—— 

Mr. WAXMAN. It seems to me the State law can also allow insurance companies to refuse coverage of emergency contraception like 

a morning after pill. It seems to me this can be read to say that 

State laws could allow insurance companies or doctors who refuse 

treatment of people with AIDS because homosexuality or drug use 

offends their conscience. Or that we can allow insurance companies 

to refuse infertility services because it offends the company’s conscience. Or not to pay for therapies that are derived from stem cell 

research because it offends their conscience. Ms. Rosenbaum, am I 

correct in reading that change as allowing those state laws? 

Ms. ROSENBAUM. I agree the wording is altered to eliminate the 

reference to abortion. 

Mr. WAXMAN. Yes. I find that troubling. Thank you, Mr. Chairman. 

Mr. PITTS. Thanks to the gentleman. Chair recognizes the 

gentlelady from Tennessee, Ms. Blackburn for 5 minutes. 

Mrs. BLACKBURN. Thank you, Mr. Chairman. Ms. Rosenbaum, I 

wanted to—there you are. Now I can see you. OK. Catholic hospitals since we were just looking at that. Should they be required 

to perform all the abortions that you would deem as medically necessary? Because it seems like we are debating and discussing medically necessary and you all continue to go to that provision. So do 

you think Catholic hospitals should be required to perform abortions that you yourself would deem as medically necessary? 

Ms. ROSENBAUM. I think obviously there is a wide range of opinion on how the term medically necessary is used. I don’t think— 

I am actually a very strong believer in a conscience clause and 

would just clarify that EMTALA itself certainly does not obligate 

a hospital to provide medically necessary abortions, however we define the term. 

Mrs. BLACKBURN. OK. Let us talk then about medical students. 

Medical students that are opposed to abortion, should they be required to receive training in how to perform abortions? 

Ms. ROSENBAUM. Again, it is my understanding that the various 

provisions, the various aspects of conscience clauses as we have 

come to understand them today are something that everybody believes in that are actually reflected both in underlying law and in 

the Affordable Care Act. But I think that is a different question 

than the very specific EMTALA obligation. 

Mrs. BLACKBURN. OK. Do you agree with President Obama? He 

made a statement that he thinks the use of abortion should be 

rare. Would you share that view? 

Ms. ROSENBAUM. As a mother and hopefully a grandmother I 

agree emphatically. 

Mrs. BLACKBURN. OK. Mr. Johnson, good to see you. I want to 

ask you about a statement that I have read. It was made by Rahm 

92 

Emanuel, who had been the Chief of Staff over at the White House 

as we had the Pitts-Stupak language last year. And he was giving 

an interview with the Chicago Tribune with their editorial board. 

Have you seen that statement, sir? Do you know what I am 

ready—— 

Mr. JOHNSON. Yes, I have Congressman. 

Mrs. BLACKBURN. OK. And I thought that it was just so telling 

when he said, and I am quoting here ‘‘I came up with an idea for 

how an Executive order to allow the Stupak Amendment not to 

exist in law.’’ So you know, this is of concern to me when you see 

that kind of language. And I just ask you, sir, when you look at 

that is that Executive order addressing abortion funding insufficient to assure that taxpayers are not going to end up footing the 

bill for abortions? 

Mr. JOHNSON. The Executive order is a hollow political construct. 

The president of the Planned Parenthood Federation of America described as ‘‘a symbolic gesture’’. I think these are two ways of saying the same thing. We could go through it section by section if we 

had time and I do in my affidavit that I referred to earlier which 

is available here and on our Web site. But in substance there is 

a great deal of rhetorical misdirection in the first section. The actual operative language only speaks to two of the many abortion 

implicating components of the PPACA itself. In one case it merely 

reiterates the objectionable language that allows the tax credits to 

be used to purchase plans that cover elective abortion and in the 

other case it purports to put a restriction on abortion funding 

through community health centers but there is no statutory basis 

for it and so it is doubtful that they could make that stick if it ever 

became an issue. The other provisions in the bill, in the PPACA 

itself which implicate abortion policy are not even addressed in the 

Executive order. And so we saw, for example, this summer the very 

first component of the packet to be implemented: the high-risk insurance pool program. Once we got a hold of some of the plans that 

had been approved by HHS we found three of those of the ones we 

were able to get explicitly covered elective abortion. And when we 

blew the whistle on this last July and a public controversy ensued, 

after about a week the administration said OK. They would employ 

their administrative discretion not to pay for abortion in that program. But they said and we said and the ACLU said and everybody 

agreed they were authorized to do so and they had already approved plans to do so. There is nothing in the bill to prevent it. It 

was authorized. There is nothing in the Executive order that even 

mentioned it. All of these events are recited in detail in my written 

testimony and in the affidavit. 

Mrs. BLACKBURN. Thank you. Yield back. 

Mr. PITTS. Chair thanks the gentlelady and recognizes the ranking member emeritus Mr. Dingell for 5 minutes. 

Mr. DINGELL. Thank you Mr. Chairman. Ladies and gentlemen, 

I heard someone at the committee table—I don’t remember who it 

was, say that there are a number of subsidies for abortion in federal law. Could you tell me where they are, please, starting with 

Mr. Johnson? 

Mr. JOHNSON. There are subsidies—— 

Mr. DINGELL. For abortion. 

93 

Mr. JOHNSON. Are we talking about the PPACA or other law? 

Mr. DINGELL. Well all right, let us take first of all the Health 

Care Reform Bill. Are there subsidies in there? 

Mr. JOHNSON. Yes, we described them. 

Mr. DINGELL. Where are they and what are they? 

Mr. JOHNSON. In the written testimony I just gave one example: 

the high-risk insurance plan. The Administration in July was already approving State plans that covered elective abortion explicitly. They then backed off but they asserted and they were correct 

that they were authorized to do so by the statute. 

Mr. DINGELL. All right now—— 

Mr. JOHNSON. They weren’t mandated to do so, they were—— 

Mr. DINGELL. All right, Let us analyze that. When you subsidize 

something you pay more than the cost of it. Is that right? That 

would be a good definition isn’t it? 

Mr. JOHNSON. The cost of what, sir? 

Mr. DINGELL. Well, if I am subsidizing abortion I am going to 

pay more than the cost of the abortion to the person that I am giving the money to. Is that right or wrong? 

Mr. JOHNSON. I am not sure I follow you, sir. 

Mr. DINGELL. Well—— 

Mr. JOHNSON. If that is—— 

Mr. DINGELL. In the farm bill we give a subsidy and there we 

subsidize farmers for producing goods. We essentially pay them to 

do that. So where in this—where in the Health Reform Bill is there 

where we subsidize it, where we pay people to have it? 

Mr. JOHNSON. Well, that was—— 

Mr. DINGELL. Where we give them a financial inducement? 

Mr. JOHNSON. This first example which would be the first in a 

long list I could give you if I had time—— 

Mr. DINGELL. All right. 

Mr. JOHNSON [continuing]. Is 100 percent federally funded program. It is 100 percent federally funded. That is where it goes. 

Mr. DINGELL. But 100 percent federal funded—— 

Mr. JOHNSON. To purchase the health coverage—— 

Mr. DINGELL. I am sorry? 

Mr. JOHNSON [continuing]. For the population that qualifies for 

this particular program, the pre-existing condition program created 

by the PPACA. OK. Now, so we take it as a premise. 

Mr. DINGELL. You are telling me it is a pre-existing condition 

prohibition pays a subsidy for people to get abortions? 

Mr. JOHNSON. They were paying 100 percent of the cost of State 

plans. 

Mr. DINGELL. One hundred percent of what cost? 

Mr. JOHNSON. They were covering the cost of the health plan, sir. 

Entire cost—— 

Mr. DINGELL. One hundred percent—— 

Mr. JOHNSON [continuing]. Of the health plan is being paid by 

the Federal Government. 

Mr. DINGELL. Well, maybe I am looking at a different session but 

I am curious. We don’t—the government doesn’t pay 100 percent of 

that. We simply say you got to pay—you say to the insurance company you have to give folks this—you have to give them coverage 

94 

and may not deny it because they have a pre-existing condition. 

What—how? 

Mr. JOHNSON. No, that is—you are—that is a different part of 

the law. 

Mr. DINGELL. All right. To what—— 

Mr. JOHNSON. I am talking about—— 

Mr. DINGELL. To what do you refer? I am having a hard time following you. 

Mr. JOHNSON. I am talking about it is the high-risk pool program 

that pre-existing insurance—— 

Mr. DINGELL. All right, so the high—the pre-existing where does 

that subsidize? 

Mr. JOHNSON. Section 1101. 

Mr. DINGELL. What—— 

Mr. JOHNSON. This is for the qualified population the Federal 

Government pays 100 percent of the cost of their health coverage. 

Mr. DINGELL. Of the health coverage. Do we pay 100 percent of 

the rest of the—wait, hold—do we pay—— 

Mr. JOHNSON. And the State plans were explicitly covering—pay 

for—— 

Mr. DINGELL. Just yes or no? Do we pay or? 

Mr. JOHNSON. Yes. Of course. 

Mr. DINGELL. We pay 100 percent of the cost of the abortion? 

Mr. JOHNSON. When the government pays for health insurance 

it pays for what the insurance pays for, Mr. Dingell. And if you 

adopt the view that it is a bottom line issue. Look at back when 

Medicaid was paying for 300,000 abortions a year before there was 

a Hyde amendment. Now, every time they paid for one of those 

abortions they actually saved the cost of childbirth which is more 

expensive than the abortion. So you could say there was no bottom 

line impact and that the government wasn’t actually subsidizing 

abortion when they were paying for 300,000 elective abortions a 

year. We think that—— 

Mr. DINGELL. Let us stay—— 

Mr. JOHNSON [continuing]. Would be tortured logic. 

Mr. DINGELL [continuing]. With my question and not get off into 

rather odd dialectic here if you please. I am trying to understand 

if the Federal Government pays the cost of the overage so that the 

State may offer this particular benefit to people how is it then that 

they are subsidizing abortion? I am trying to understand how—— 

Mr. JOHNSON. I am not sure why you keep talking about the 

State. This is a 100 percent federally funded program. 

Mr. DINGELL. OK. Well, there are actually several programs 

here, but all right, let us say it is 100 percent federal. Where—how 

is the Federal Government, if they pay 100 percent of that cost, 

subsidizing abortion? 

Mr. JOHNSON. If the Federal Government is paying for somebody 

to enroll in this program in, say New Mexico which is one of the 

plans, and that plan covers elective abortion, then the Federal Government is paying for every abortion that is paid for by that plan. 

How could it be otherwise? 

Mr. DINGELL. All right, what are the other subsidies? 

95 

Mr. JOHNSON. There are authorizations in the PPACA for a great 

deal—what seven billion in money to community health centers. 

These—— 

Mr. DINGELL. So do community health services—centers provide 

abortions? 

Mr. JOHNSON. Some do. 

Mr. DINGELL. How many? 

Mr. JOHNSON. This was disputed. We don’t know. 

Mr. DINGELL. I have got seven of them in my District and I am 

not aware of one that does. 

Mr. JOHNSON. There is a national project called the Reproductive 

Health Equity Project I believe which is devoted to trying to get 

them to adopt abortion as part of their regular—— 

Mr. DINGELL. Is that covered by the Hyde amendment? 

Mr. JOHNSON. It is not, sir, because these funds are self-appropriated in the packet itself. Now, the President in his Executive 

order purports to say please don’t use those monies for abortions 

but there is no statutory basis for it. The Hyde amendment only 

covers what flows through the HHS appropriations pipeline. The 

PPACA has a great many new pipelines self-appropriated at 

this—— 

Mr. PITTS. The gentleman’s time has expired. 

Mr. DINGELL. Thank you, Mr. Chairman. 

Mr. PITTS. Gentlemen, the Chair recognizes the gentleman from 

Pennsylvania, Dr. Murphy for 5 minutes. 

Mr. MURPHY. Thank you, Mr. Chairman. I hope I can—you can 

see me back there. I just want to clarify the stream and what is 

the law and not the law. Can federal money such as Medicare, 

Medicaid be used to purchase medical supplies at health clinics? 

Can that be used? Yes or no, anybody from the panel. 

Ms. ROSENBAUM. Certainly Medicare and Medicaid pay for the 

supplies. 

Mr. MURPHY. OK yes, OK. And so they can pay the rent and 

heating and utilities that clinics that perform a number of services 

including abortions? 

Ms. ROSENBAUM. There would be no payment. I am—— 

Mr. MURPHY. But if it is the same building it would pay for the 

medical supplies and utilities and the rent et cetera where some 

types of medical procedures are covered, but also where abortions 

are also performed. Is that correct? 

Ms. ROSENBAUM. You could not bill for a prohibited feature. 

Mr. MURPHY. But if it pays the rent and utilities and the medical 

supplies you could use Medicare funds, Medicaid funds to pay for 

that where those abortions may also exist. Am I correct? 

Ms. ROSENBAUM. No, you could not bill for a prohibited feature. 

And you could not pay for—— 

Mr. MURPHY. Can you—if an abortion takes place and there is 

medical equipment needed: sutures, scalpels, scissors, clamps, 

gauze, medicines, can some of those that are paid for in the clinic 

in one category filing or closet be also used for a woman who may 

be having an abortion? 

Ms. ROSENBAUM. I still don’t understand. You cannot bill for a 

prohibited feature. 

96 

Mr. MURPHY. When a clinic purchases supplies do they have two 

separate medical supply rooms? One that is paid for—the money 

could come from federal or say taxpayer dollars such as Medicaid 

and another entirely separate funding stream where supplies 

would come from? Are they kept entirely separate? Does anybody 

on the panel know? OK. I hold in my hand a federal grand jury 

report about a clinic in Philadelphia, first judicial district of Pennsylvania. It is 260 pages worth of shocking and horrifying descriptions of what took place at the Women’s Medical Society. It is—and 

it has procedures and lists of things too gruesome to describe. 

Many babies who were born, who were viable and were left on a 

table until the doctor would come in and use scissors to sever their 

spine. The fellow Rhenus Clinic is up for many charges of murder 

although it is estimated this actually took place in the hundreds. 

Now, I want to show you a document here which is fairly important 

with regard to this that—with regard to how one billed for some 

of these services. And what it has on this document, it is very interesting the column of how things are paid for because it lists 

some of the prices. Let me see if I can find it here. It lists some 

of the prices for these services and in this column it says you know 

paid for by Medicaid and for—and then part was out of pocket expenses. Does anybody—here would help me find that paper. Anybody know how that could be? 

Ms. ROSENBAUM. I presume you would have to ask the Pennsylvania Medicaid folks. 

Mr. MURPHY. I mean the thing that is real difficult for me is we 

are told it is illegal and yet here is a clinic that has operated for 

quite a time billing Medicaid. I want to know how this is where it 

has on this price list and it is broken down by the age of the fetus 

from 6 to 12 weeks under discount price for Medicaid and cash it 

is $330. Thirteen to 14 weeks gestation is $440. When it is 21 to 

22 weeks it is 1180 although the 23 to 24 weeks because it is a 

3 day procedure of dilation for a partial birth abortion it is 1525. 

The prices go up according to the age of the baby. But it says Medicaid and cash and I don’t understand how if we are saying federal 

taxes don’t go towards paying for abortions I just want to make 

sure we are not living in a delusional world. Is it used or not? 

Ms. ROSENBAUM. A State Medicaid program, a state Medicaid 

agency can use nonfederal share funding to pay for a broader range 

of services. 

Mr. MURPHY. How do they do that? Do they mark the bills that 

come from the Federal Government and separate them into a pile? 

Ms. ROSENBAUM. Yes. They literally segregate out claims that 

would be federally allowed. 

Mr. MURPHY. So state taxpayer dollars—— 

Ms. ROSENBAUM. This is a—— 

Mr. MURPHY [continuing]. Are going toward this? But State taxpayer dollars can go toward these abortions? 

Mr. JOHNSON. I have a different view on this point, Mr. Murphy. 

Mr. MURPHY. Yes. 

Mr. JOHNSON. First of all, it is not true that the Hyde amendment allows states to use matching funds in Medicaid for abortions 

other than life of the mother, rape, and incest. This is explicitly 

prohibited by the text of the Hyde amendment which again the 

97 

complete text is footnote 10 in my written testimony. But a state 

may set up a parallel program with entirely state funds. Technically it is not Medicaid—— 

Mr. MURPHY. Taxpayer funds. 

Mr. JOHNSON [continuing]. As former administrator has pointed 

out—to cover whoever they want with entirely state funds. But 

Pennsylvania has not done so. Pennsylvania in fact has resisted 

even the expansion to the rape/incest back during the Clinton Administration. So I can’t explain the document that you have in your 

hand. I think that does bear further investigation. And it really illustrates how particularly with respect to late abortions a lot of the 

things that were told, statistics and so forth are highly suspect. I 

mean, you are told that late abortions are quite rare. Well, even 

by the Guttmacher Institute figures there is at least 20,000 a year 

after the first half of pregnancy in the fifth month or later—maybe 

a lot more. 

Mr. MURPHY. Mr. Chairman, I would just ask as part of what the 

committee takes action in researching this issue in terms of how 

that funding stream was done and look at this is it an example or 

not of how taxpayers funds were used to pay for abortions. Thank 

you. I yield back. 

Mr. PITTS. Without objection. Thank you. The Chair recognizes 

the gentlelady from California, Ms. Capps for 5 minutes. 

Mrs. CAPPS. Thank you, Mr. Chairman and before I get to my 

questions I want to ask unanimous consent to submit for the record 

statements from NARAL, an organization opposing this legislation. 

Mr. PITTS. Without objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mrs. CAPPS. Thank you. Previously my colleague Mr. Waxman 

was asking some questions and I want to follow up on one of his 

questions to you, Professor Alvare ́. Should a health care provider 

whose conscience dictates that they should provide abortion services just like in Mr. Waxman’s example of a woman who had been 

raped. If you from your lawyer’s point of view from being an attorney and a professor of law, should that individual provider’s conscience receive the same protection under the law that you support 

for those opposed to abortion? We are talking about the conscience 

clause here. 

Ms. ALVARE. The first thing with respect to this particular legislation is that they are free to provide abortions in the United 

States. It remains legal. It remains legal throughout pregnancy and 

they are free to do it. I would not want legislation that particularly 

protects their conscience to do it within an institution that doesn’t 

want to do it. They are free to do it anywhere they like except of 

course within an institution whether they are religious or just morally opposed to abortion. We prefer as a nation life over death. The 

Supreme Court has allowed States to do that and if they want to 

extent conscience protection particularly to people who do not want 

to provide abortions it is because those are the people being forced. 

People who want to provide abortions are not stopped from doing 

so. 

Mrs. CAPPS. So you are referring to an anti-discrimination law? 

Ms. ALVARE. People who want to provide abortions are not 

stopped from doing so. That is the state of our country right now. 

98 

Mrs. CAPPS. OK. Let me point out that you have asserted also 

that poor and vulnerable women are often treated by Catholic hospitals and that the protection of conscience and care for vulnerable 

women are not opposite values. But this is the situation that Professor Rosenbaum brought up. November of 2009, a 27-year-old 

pregnant woman brought to St. Joseph’s Hospital, a medical center 

in Phoenix, Arizona suffering pulmonary hypertension. To quote 

the hospital in that case the treatment—her hypertension was exacerbated by the pregnancy and the treatment necessary to save 

her life required the termination of an 11 week pregnancy. This decision was made after consultation with the patient, her family, her 

physicians, and in consultation with the ethics committee of the 

hospital. Fortunately because of the doctor’s actions in this case 

this woman lived. That is what you are referring to and then went 

home to care for her four children. Now in your testimony, Professor, you describe the need for institutions and medical providers 

to be able to choose against performing health care services that 

they find objectionable. Do you believe that if—that the hospital 

should have had the choice in a different situation or with a different set of committees and so forth to let this woman die without 

a treatment or referral? 

Ms. ALVARE. Congresswoman, I think the hospital would disagree with your characterization. The details of this particular situation have never been fully, publicly verified—— 

Mrs. CAPPS. But you could answer my question as an attorney. 

Say the details were—— 

Ms. ALVARE. Well, they said it wasn’t an abortion, Representative. 

Mrs. CAPPS. Well, but it—the—then—— 

Ms. ALVARE. At the hospital. 

Mrs. CAPPS. Then make this a hypothetical situation. 

Ms. ALVARE. OK. 

Mrs. CAPPS. As a professor of law in this kind of situation do you 

believe that a hospital with a conscience clause who chooses not to 

perform these procedures should let this woman die? Or someone 

who is hemorrhaging which is sometimes the case in a pregnancy 

and only has a few minutes to live and in some parts of this country there is not another hospital within the time that would be allotted. 

Ms. ALVARE. Then if you believe that unlike what Guttmacher 

says—— 

Mrs. CAPPS. I am asking you to answer for yourself. 

Ms. ALVARE. Yes, that—but it is premised on the question that 

you believe this situation could occur. Doctor and Representative 

Burgess has suggested it hasn’t—38 years of legal abortion it 

hasn’t. 

Mrs. CAPPS. But the conscience clause should apply—it needs to 

apply. 

Ms. ALVARE. Where we really need some conscience protection in 

a big way is at the health department officials that need investigating. 

Mrs. CAPPS. But you are not answering my question, Professor. 

Ms. ALVARE. No, I think I have with due respect that we don’t 

have that situation. It is hypothetical. What is not hypothetical is 

99 

the dozens of women dying at abortion clinics like Dr. Gosnell’s. We 

need protection for those women and the situation in Phoenix as 

you said you—— 

Mrs. CAPPS. Let me put it in another way. I don’t want to interrupt you, but I—there is such little time. In your testimony you 

seem to indicate that an individual with life threatening emergency 

has time to Google all the available medical services and she could 

get to some other place to find a treatment for her life threatening 

hemorrhage. For this woman to receive the care she might need 

she would have to self—do you not think this is an incredibly unreasonable action to expect from a woman in that sort of condition? 

Ms. ALVARE. I never referenced Googling hospital services in any 

of my testimony. There is nothing similar to that in my written testimony. What I am telling you is that when it comes to women 

dying in connection with abortion we have dozens and dozens and 

dozens of examples—— 

Mrs. CAPPS. But doesn’t—but you—— 

Ms. ALVARE ́ [continuing]. At abortion clinics but not in a hospital 

setting. None in 38 years. 

Mrs. CAPPS. I yield back. 

Mr. PITTS. Chair thanks the gentlelady and recognizes the gentleman from Georgia, Mr. Gingrey for 5 minutes. 

Mr. GINGREY. Mr. Chairman, thank you. I want to refer back to 

a line of questioning that the ranking member brought up earlier. 

I don’t think he is still here, but this is in regard to the questions 

over conscience protections and I am going to address this to Ms. 

Alvare ́. Does the Pitts legislation, the Protect Life Act, does it provide any additional conscience protections that are not included in 

the Patient Protection and Affordable Care Act, sometimes referred 

to as ‘‘Obamacare.’’ Or indeed President Obama’s Executive order. 

And if so, why do you think those protections should be adopted 

through enactment of the Pitts legislation before us here today? 

Ms. ALVARE. Thank you. A good deal of that is to preserve what 

we always had in the Hyde-Weldon legislation. For instance specific examples, the Affordable Care Act extended nondiscrimination 

protection with regard to health plans but not as against actions 

of government. The Stupak-Pitts amendment which was adopted by 

voice vote, by the full Energy and Commerce Committee in 2009 

included those protections just like Weldon did. It was considered 

so uncontroversial that it included those on a voice vote. Additionally and this is where I would appreciate the opportunity to clarify 

what I believe was Congressman Waxman’s fundamental misunderstanding of that piece of the Protect Life Act that talks about 

regarding abortion. He thought that by striking that language out 

of the Affordable Care Act and putting other language in we were 

actually allowing for hospitals to refuse to provide or health care 

providers, et cetera—any entity to provide this wide array of health 

care services that he listed. In fact, that was just the striking of 

a heading because the heading did not appropriately characterize 

what went underneath it. And in addition, it was connected with 

amending the Affordable Care Act to make sure that not only did 

it not preempt State laws on abortion, but it also didn’t preempt 

those 47 States and the District of Columbia that already have conscience protection on the books. So his reading of that particular 

100 

piece of Protect Life Act I would say is not—would not be what the 

text is saying. And that what it was doing that the Affordable Care 

Act didn’t do but now we would have under the Protect Life Act 

was to protect all those State’s conscience protection clause. 

Mr. GINGREY. So Ms. Alvare ́, in just in summary from what you 

say, clearly your opinion is that what is in Patient Protection Affordable Care Act and also in the Executive order does not go far 

enough in regard to the conscience clause; therefore, the need of 

that provision, that section of the Protect Life Act in the Pitts bill. 

Ms. ALVARE. On its face—— 

Mr. GINGREY. Yes. 

Ms. ALVARE ́ [continuing]. Textually speaking Protect Life Act 

does—— 

Mr. GINGREY. And I think that is a yes and I am going to accept 

that—— 

Ms. ALVARE. Yes. 

Mr. GINGREY [continuing]. Because my time is getting limited. I 

did want to go to Mr. Johnson. And Mr. Johnson, some have suggested that the current existence of the Hyde amendment and the 

President’s Executive order mean there is no need for the Pitts legislation. Does President Obama’s Executive order support the Hyde 

amendment and does his Executive order address all of the concerns regarding federal funding of abortion? 

Mr. JOHNSON. The reference in the Executive order, the Hyde 

amendment is just discursive. It is a form of misdirection. Of 

course, the bill doesn’t repeal—— 

Mr. GINGREY. Let me interrupt you just for a second. I will let 

you answer. And I think that came up a little bit earlier. My colleague from Tennessee, Ms. Blackburn mentioned the interview 

that the former Chief of Staff to the President, Mr. Rahm Emanuel 

had in an interview with the Chicago Tribune, he essentially said 

that. Did he not? You go ahead. 

Mr. JOHNSON. Yes, and that is why president of Planned Parenthood said it was just a symbolic gesture. By the way, I am sorry 

Mr. Dingell is not here anymore because my associate handed me 

the memo from the Congressional Research Service about the highrisk pool program that we were discussing a few minutes ago and 

it says—this is a memo from the CRS July 23, 2010, and I quote 

‘‘Because the Hyde amendment restricts only the funds provided 

under the appropriations measure for the Departments of Labor, 

HHS, and Education, it would not seem to apply to the funds provided for the high-risk pools.’’ And that is why the ACLU criticized 

the White House when they made the discretionary decision after 

the public controversy last July not to fund abortions in that particular program. They had the authority to do so under the PPACA. 

They decided not to because of the controversy. 

Mr. GINGREY. Mr. Johnson, let me interrupt you just quickly. In 

the last 5 seconds I have do you think then that the Protect Life 

Act is an effort to codify, essentially to codify the language in the 

Stupak-Pitts amendment that was passed by this house in November of 2009? 

Mr. JOHNSON. Yes, the bill was patterned very closely on the 

amendment that passed the house by—— 

Mr. GINGREY. With much Democratic support. 

101 

Mr. JOHNSON [continuing]. Two-hundred forty votes, which was 

one quarter of all the Democrats and no Republican voted against 

it. 

Mr. GINGREY. Thank you. Yield back. 

Mr. PITTS. Chair thanks the gentleman and recognizes the 

gentlelady from Illinois, Ms. Schakowsky for 5 minutes. 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. I wanted to ask 

you Mr. Johnson, do you want to stick with your statement that 

the Federal Government pays 100 percent of the high-risk pools? 

Mr. JOHNSON. Yes, and in fact that statement is up on the Secretary Sebelius’s Web site. 

Ms. SCHAKOWSKY. I have in my hand the Illinois plan, the Illinois Pre-existing Condition Insurance Plan and it says how is IPXP 

being funded. In addition to the federal funds, the IPXP will be 

funded by premiums paid by enrollees and here is the whole list 

of the money that is being paid by the enrollees. This is not a question. I want to say for the record that this is not 100 percent paid 

for by the Federal Government. And if I could just have a yes or 

no answer to this, did the National Right to Life Committee support the changes to the Hyde amendment that were originally included in this bill forcible rape and regarding incest if a minor? 

Mr. JOHNSON. I can address that question, but not with a yes or 

a no. 

Ms. SCHAKOWSKY. Well, it seems pretty simple. Did the organization support those? 

Mr. JOHNSON. We supported the bill as introduced. We also support the current policy which is incorporated in the Hyde amendment. I believe that these—well, Congresswoman if you want my 

position then you will have to allow me to answer in my own way. 

We support the policy that is incorporated in the Hyde amendment. 

It is not perfect, but we do support it. And we supported the bill 

as introduced. It is not perfect either. You know we could discuss 

the history of how the language was—— 

Ms. SCHAKOWSKY. No, I—medical doctors on—however, my understanding of the National Right to Life constituent views of the 

term for—they said see it as what we are talking about as frivolous 

or—so let me ask you this. Is it elective when a woman has an 

abortion because she will go blind because of the use of all the—— 

Mr. JOHNSON. The term elective as it has been used the last couple of years and in testimony today is a kind of shorthand for abortions outside the scope of the Hyde exceptions, life of the mother, 

rape, and incest. It is not a moral judgment or an ethical judgment 

on these other circumstances. It is just a shorthand way—— 

Ms. SCHAKOWSKY. So in other words by that definition elective, 

if a woman would go blind as a result of pregnancy that would be 

outside of Hyde and that would be elective? 

Mr. JOHNSON. That would be elective as the term has been used 

in some of this discourse as a form of shorthand. It does not—the 

circumstance you have just described is not to prevent the death 

of the mother as you have just stated. It is not rape. It is not incest. 

Ms. SCHAKOWSKY. Right, OK. So is it elective then—I want to 

just get this on the record if a woman with an ectopic—— 

Mr. JOHNSON. I have answered your question. 

102 

Ms. SCHAKOWSKY. No, I am asking another question. Excuse me. 

If the—is it elective if a woman with an ectopic pregnancy has the 

embryo surgically removed while leaving the fallopian tube intact? 

Mr. JOHNSON. What you have described many would dispute as 

any kind of an abortion, but if it is to be considered an abortion 

it would be considered an abortion to save the life of the mother 

and certainly allowed by Hyde. Indeed this was explicitly in the 

Hyde language back in the ’70’s I believe or at least in the conference report. But it has never been an issue. 

Ms. SCHAKOWSKY. If—is it elective if a woman miscarries one of 

the twins she is pregnant with and terminates the pregnancy of the 

second fetus after doctors conclude there is no hope for survival? 

Mr. JOHNSON. For whose survival, Congresswoman? 

Ms. SCHAKOWSKY. For the—no hope for survival of the fetus. 

Mr. JOHNSON. The Hyde amendment does not permit federal 

funding of abortion of a child because the child has a poor prognosis or a handicap. The criteria is if the life of the mother would 

be endangered if the pregnancy were be carried to term. 

Ms. SCHAKOWSKY. So, no hope for survival does not constitute— 

that would be elective? No hope for survival. 

Mr. JOHNSON. No hope for survival of the child for some time 

after birth? Is that what you are saying? 

Ms. SCHAKOWSKY. That the child cannot perhaps survive the full 

nine months or could not survive after birth. Right. 

Mr. JOHNSON. The Hyde amendment does not permit federal 

funding of abortion as a form of prenatal euthanasia. 

Mr. PITTS. The Chair thanks the gentlelady and recognizes the 

gentleman from Louisiana, Mr. Cassidy for 5 minutes. You want to 

step back here? We will hold the five. 

Mr. CASSIDY. Hi Ms. Rosenbaum. In full disclosure to everybody 

else, you and I have authored and coauthored a paper before. 

Ms. ROSENBAUM. I have to put my mic down for that. We have 

indeed. 

Mr. CASSIDY. Yes. Now, a couple things. I am approaching this 

as a physician because some of this discussion—a woman doesn’t 

go blind from diabetes in pregnancy. The Renal-retinal syndrome 

is something that develops over years and so it is not something 

that would precipitously occur. And that is just one example how 

as a physician I have kind of approached this. When I read your 

testimony you quoted an article that you had written so I pulled 

it up. I have great respect for your writing. And one of the things 

you are talking about here is medically indicated and you say a 

woman has a car wreck, fractures her pelvis, loses the baby, would 

the hospital not be paid for fixing the pelvis because the baby was 

lost. Now frankly, that would most likely be to save the life of the 

mother, but I had never heard of a hospital having a problem in 

such a situation, a major motor vehicle accident. Have you? 

Ms. ROSENBAUM. Let me just be sure I am following your question. 

Mr. CASSIDY. I am reading your paper here—I am sure you are 

familiar with it. It is regarding the Stupak-Pitts amendment. It is 

actually about current law and not about what is proposed. And 

you say how will plan administrators distinguish between the abortion procedure and the rest of the treatment? Will the entire cost 

103 

of a course of treatment—example, surgery to repair a damaged 

pelvis following an automobile accident—be denied if abortion is 

part of the procedure. I have never heard of that happening. Have 

you? 

Ms. ROSENBAUM. Here is the problem. The analysis which I reference and also gave sort of shorthand to in my oral statement focuses on the administrative choices made by health plans. When a 

particular treatment is excluded often they will say that other 

treatments that are related to the treatment—— 

Mr. CASSIDY. But see, for example, I am sure we have experience 

with Medicaid managed care. 

Ms. ROSENBAUM. Yes, absolutely. 

Mr. CASSIDY. If a woman comes in with sepsis following a whatever—an abortion that normally the Medicaid wouldn’t pay for, she 

paid cash and had a complication and came to the hospital, I have 

never heard of a managed care plan not paying for the rescue, if 

you will, of the botched procedure. Have you? 

Ms. ROSENBAUM. What I am writing about and testifying about 

is what is absolutely legally within the right of the—— 

Mr. CASSIDY. So it is not anything that empirically happened 

with a long experience with Medicaid managed care. Rather it is 

a what if? 

Ms. ROSENBAUM. It is the legal implication of having an exclusion. This is once you have a benefit exclusion then other—— 

Mr. CASSIDY. But we have benefit exclusions in Medicaid managed care which is why I come back to that. Medicaid managed 

care does not cover abortion. 

Ms. ROSENBAUM. Correct. 

Mr. CASSIDY. But as far as I know I have never heard of it not 

paying for the rescue of somebody who has had a complication following a cash paid abortion. Have you—again, I just ask because 

I don’t think you are fear mongering on purpose, but frankly it has 

that effect because I have never heard of that and that is as a practicing physician. 

Ms. ROSENBAUM. Well, I think the issue in analyzing a bill like 

this is to identify for Members of Congress what the potential implications are. Now you could address the issue—— 

Mr. CASSIDY. Now I accept that. OK. So I think it is fair to say 

it hasn’t happened and it is just a question of—— 

Ms. ROSENBAUM. No, we don’t know, at least. There has been no 

documentation. 

Mr. CASSIDY. I can promise that would hit the newspaper. But 

that said, and again I was struck because I have seen patients. Although I am a gastroenterologist. I know of such patients. Secondly, the ERISA market—there seems to be some concern you 

have that by doing this we are going to somehow destroy the insurance market for non- federally somehow connected plans. It is interesting that you suggest that a lot of people are going to drop 

their current coverage to go on a subsidized plan and I will note 

that we were assured that was not going to happen. But nonetheless, as you note in your paper we have a huge ERISA market. I 

mean, a huge 87 percent of the people are covered by ERISA and 

most of those folks have coverage. Maybe as a percentage it will 

104 

decline but really in absolute numbers it is huge. Are you saying 

that that will go away? 

Ms. ROSENBAUM. No, no. The paper addresses what happens 

when the same health benefit companies that sell products in, let 

us say the exchange market, are also selling small group products, 

employer products in the non-exchange market. A company can 

only make so many variations on the product itself. 

Mr. CASSIDY. But we certainly know that they do make a lot of 

product variations now. Now you mentioned, for example, that 

there is dental and vision. We all know that and you say that 

would be a smaller market. On the other hand I have no doubt 

there is an enterprising insurance company out there that will become the coverer for many other companies. 

Ms. ROSENBAUM. The problem with this particular market is that 

if you follow both this bill and H.R. 3—— 

Mr. CASSIDY. Now by the way, we are talking actually by—this 

is about Stupak-Pitts. 

Ms. ROSENBAUM. Yes, yes, yes. 

Mr. CASSIDY. So you are describing now what would be the effect 

of this addendum, if you will, but rather what is the effect of the 

current Executive order as regards PPACA now. Correct? 

Ms. ROSENBAUM. No, no, no. In fact, I would say this bill would 

bring health reform into line with what originally was StupakPitts. 

Mr. CASSIDY. OK. So the original kind of thing that passed by 

a huge bipartisan, this would bring it into align with where that 

was? 

Ms. ROSENBAUM. This would substitute—— 

Mr. CASSIDY. Yes. 

Ms. ROSENBAUM [continuing]. At least in part Stupak-Pitts for 

what was—— 

Mr. CASSIDY. They are clicking behind me. We are through. 

Thank you very much. 

Mr. PITTS. Gentleman’s time is expired. Chair recognizes the 

gentlelady from Wisconsin, Ms. Baldwin. 

Ms. BALDWIN. Thank you, Mr. Chairman. Before I begin I would 

like to ask unanimous consent to submit for the record the testimony of Dr. Douglas Laube who is the Board Chair of Physicians 

for Reproductive Choice in Health. 

Mr. BURGESS. Mr. Chairman, could I ask to see that before we 

have that unanimous—— 

Mr. PITTS. Could we request a copy of that? 

Ms. BALDWIN. Well certainly. 

Mr. BURGESS. While we are on the subject, can I see the paper 

that the previous questioner was referring to? If I could get a copy 

of that as well that would be great. 

Mr. PITTS. No—— 

Mr. BURGESS. Thanks. No rush. I just—— 

Mr. PITTS. All right, the gentlelady is recognized for 5 minutes. 

Ms. BALDWIN. And the result of my unanimous consent request? 

Have I—— 

Mr. BURGESS. Take a minute to read it. I don’t mean to be rude. 

I am going to read while you are talking but I can listen while I 

read. 

105 

Ms. BALDWIN. All right. Earlier I expressed my dismay that our 

very first hearing of this subcommittee in this brand new session 

of Congress wasn’t focused on the issues that are most important 

to my constituents. I would suggest all of our constituents—that 

being jobs. Many facets of which would be directly relevant to our 

subcommittee’s jurisdiction. But instead on a bill that rolls back 

the right of women to make important life decisions. And I think 

that speaks volumes and I wonder what else we will see on this 

issue in the weeks and months to come. Will we see defunding of 

family planning and access to contraception? Will we see revisiting 

of the rape and incest exemptions? And on that topic, I am familiar 

with the chairman’s bill as introduced. I believe it is H.R. 358 and 

another bill, H.R. 3. That one which is cosponsored by over half of 

the Republican conference. In both of those bills there is a redefinition of the rape exemption that would give insurance companies 

and health care providers new authorities. Perhaps you could even 

argue new responsibilities to decide if a woman has been forcibly 

raped and the authority to deny care to victims of incest. You 

know, it used to be that we told our young daughters and sons no 

means no. But now apparently no isn’t sufficient. What happens if 

a rape victim is unconscious? What about somebody who has been 

given the date rape drug as it is known? Are these people no longer 

considered rape victims? Now, thanks to Americans and particularly American women who spoke out against these provisions, we 

are now considering a discussion draft of the Chairman’s bill without these provisions. Although I don’t have the discussion draft at 

my desk. I don’t know if I am alone, but am I—— 

Mr. PITTS. Where is it? 

Ms. BALDWIN. Were people provided with the discussion draft, 

because I would like to certainly confirm that that language has indeed been removed? But it doesn’t appear to be at our desks with 

our materials. In any event, let me move on. We know that this 

language in this proposal is not new. During the debate last year 

on the health care reform bill, this language was proposed and ultimately again withdrawn. So I guess, Professor Rosenbaum, I would 

like to explore the impact of this proposed redefinition of rape and 

incest that was included in the legislation H.R. 358, a variation of 

what we are looking at today. Who would make these treatment 

and coverage decisions for victims of rape and if this redefinition 

were to occur how might it be applied in practice? It is deeply troubling to me. 

Ms. ROSENBAUM. There would be—really two levels of decisionmaking. First of course there would have to be a structure by 

which the sellers of the products themselves could certify that they 

were in compliance with the definitions. And so in this case because we are talking about a tax advantage plan definition the IRS 

would have to define these issues. But then when it comes to individual claims, it would go through a claims appeals process. So if 

you were a woman who claimed to have had an abortion for a covered purpose, the plan might review the claim and decide that the 

medical justification, the supporting evidence was not strong 

enough and would have legal authority of course to deny the claim 

for that purpose. So it would be an evidentiary determination just 

106 

like any evidentiary determination. Then you would go through the 

appeals process. 

Ms. BALDWIN. What about at the treatment stage? Is there any— 

what would come into play there in terms of what a young victim 

of rape would have to share in terms of demonstrating that she 

was forcibly raped? 

Ms. ROSENBAUM. If the standard is a forcible rape standard then 

one could imagine everything from police reports which sometimes 

don’t exist in these cases because of fears about coming forward. 

Other evidence, evidence of particularly brutal attack, physical 

tearing, all of the medical, clinical, law enforcement evidence that 

would surround presumably a forcible rape would come into play. 

And the insurer would be labeled as the bad guy but the insurer 

would be doing what it legally needed to do in order to adhere to 

the federal exclusion. 

Ms. BALDWIN. Thank you and I would renew my unanimous consent request. 

Mr. PITTS. Chair thanks the lady. There is no objection so with 

unanimous consent, so ordered. 

Ms. BALDWIN. Thank you. 

Mr. PITTS. Chair thanks the lady and recognizes the gentleman 

from Kentucky, Mr. Guthrie for 5 minutes. 

Mr. GUTHRIE. Thank you, Mr. Chairman. My friend Mr. Cassidy 

was talking about this—the paper, Ms. Rosenbaum that you had 

and I guess what you were saying how is the physician going to— 

if there is an abortion procedure, there is complication of that and 

they are treated beyond that, how are they going to disentangle 

what was abortion related and what wasn’t. That was the same 

question we had with insurance. If somebody goes into the exchange and they receive a subsidy to go into the exchange, whether 

they pay 80 percent, 50 percent, and some of the argument that 

was made on the floor, I guess in the Senate although we did pass 

Stupak-Pitts in the House, was how do you know what portion of 

that premium is going to be for abortion? How—what portion is 

going to be from the federal taxpayer? And without being able to 

disentangle that we said well, you can’t disentangle it because it 

is all tied together. And therefore, the intent is to ban this to keep 

with our idea that the federal taxpayer shouldn’t pay for people’s 

abortions. And on that with Mr. Johnson—and I am going to try 

to get this quickly because I want to yield some time. With Chairman Dingell, or Mr. Dingell you were talking about the coverage. 

So even if you don’t get 100 percent coverage in the high-risk pool, 

if you get some percentage of coverage in the high-risk pool or any 

exchange, if the exchange offers abortion coverage and then there 

is no way to disentangle just what I was saying, what is a federal 

dollar and what is a private dollar? 

Mr. JOHNSON. Well, these are two different issues. I think Congresswoman Schakowsky and I were talking past each other a little 

bit. The high-risk pool program, yes, the client has to pay a certain 

amount in. Those become federal funds. Those become federal 

funds. That is why the secretary of HHS, on their Web site, says 

it is 100 percent federally funded. The state contributes nothing. 

The clients pay a certain fee just like in Medicare, but those then 

become federal funds. The notion that a federal agency can pay out 

107 

of the treasury for medical services, abortions, or any other and 

that that is the use of private funds is really a hoax. And we saw 

an attempt with the Capps amendment on a bill last year to make 

that claim where the—under the public plan, the secretary of HHS 

would have been paying for elective abortions out of the federal 

treasury and they said but that was private funding of abortion. 

That is a hoax and nobody would entertain it for a moment if you 

were talking about some context other than abortion. 

Mr. GUTHRIE. I am going to yield the remainder of my time to 

Mr. Burgess. 

Mr. BURGESS. I thank the gentleman for yielding. And in fact, 

Mr. Johnson when we had that discussion on the Capps amendment in the mark-up of the Patient Protection and Affordable Care 

Act in July of 2009 the Democrats own counsel characterized that 

as, he said it would be a sham if I recall correctly. It was late at 

night and after a lot of discussion, but I think many of us were 

startled when Mr. Barton asked the question and again the Democratic Counsel said no, that would be a sham. 

Mr. JOHNSON. We cite in our testimony a host of authorities on 

this that these are public funds, federal funds once they are collected. The government collects money through diverse means: 

taxes, user fees, these premiums, and so forth. They are all federal 

funds once the government has them. 

Mr. BURGESS. On just a couple of things that have come up. The 

issue of a pregnancy located in the fallopian tube—I just—there 

would not be a situation arise where that would not be the health 

of the mother invoked in treating that condition. 

Mr. JOHNSON. Life of the mother. 

Mr. BURGESS. Life or health of the mother with—life of the mother. Whether you use Methotrexate as a medical procedure or a surgical procedure but that has to be treated and everyone recognizes 

that. The paper that I asked permission to look at before we accepted it in the record does go through a litany of very hard rendering difficult situations. There is only one that is referenced in 

here that really would fall outside the emergency classification 

where it needed to be ten to two whether it is a hospital that provides this service or not. The doctor is obligated under EMTALA 

to provide that care, stabilize, transfer to another facility if the condition permits it, but only one of the six or seven cited here would 

actually fall into the category of elective. And the one that is elective, again, it is a tough story of someone with another child who 

is ill and decides not to carry their pregnancy. But that is hardly 

an emergency situation and one that can easily be stabilized and 

a proper caregiver found. Now, the other issue that is brought up 

in this paper is the issue about that the requirement of a rider 

would be unworkable, but in fact that is what insurance is. It is 

planning for the unplanned. And it does not seem to me to be unreasonable to ask for that to be one of the conditions. And again, 

the President is pretty clear in his Executive order I think. So we 

are just—Mr. Pitts, I congratulate you. You are trying to help the 

president and there are a lot of people who would say that that is 

an evidence of bipartisanship. So I welcome. 

Mr. PITTS. The chair thanks the gentleman and recognizes the 

gentleman from New York, Mr. Engel, for 5 minutes. 

108 

Mr. ENGEL. Thank you, thank you Mr. Chairman. Look, we are 

all really beating around the bush here and when we are talking 

about a right of a woman to choose or the right of abolishing abortion in any circumstances. These are very heartfelt and personal 

views and I don’t denigrate anybody’s view on this issue. But I 

really am very much chagrined that first thing out of the box in 

this Congress the majority is pushing forward on wedge issues 

such as abortion when we should be doing things like helping our 

economy, and getting people back to work, and getting unemployment down. That is as far as I can see what the election was about 

in November and it is very disconcerting to see these wedge issues 

being pushed to the fore. Let me get back to basics. Let me first 

ask Professor Rosenbaum because we have been back and forth on 

this, aside from the narrow exceptions of life, rape, and incest, does 

the Affordable Care Act allow federal funding for abortion services? 

Ms. ROSENBAUM. It does not. 

Mr. ENGEL. OK. So it is—your reading of it is a lot different from 

some of the testimony we have been hearing? 

Ms. ROSENBAUM. I think—and every effort has been made to 

clarify any circumstance in which there was any question. I can 

find no evidence that anybody has not clarified that the same 

standards that we know in Hyde apply under the Affordable Care 

Act. 

Mr. ENGEL. In your testimony you state that the Protect Life Act 

will affect women’s ability to find a health plan that includes abortion and purchase it with her own funds. Can you explain what 

that implication would mean for a woman’s access to health services? 

Ms. ROSENBAUM. The effect of the Protect Life Act would be in 

my view given my familiarity with the way insurers behave in a 

marketplace is that the market for the kind of coverage that one 

would need to buy essentially totally outside of the tax advantaged 

coverage just would never materialize because the people who are 

going to get the benefit of the Affordable Care Acts tax advantage 

system are individuals who don’t have disposable income. They are 

by definition without the means to buy coverage. That is problem 

number one. Problem number two is the problem that I alluded to 

in both the written testimony and the oral statement namely it is 

very difficult to buy supplemental coverage and have that supplement totally, separately administered. Because the whole nature of 

a supplement is that it works in tandem with the basic coverage. 

Under the Protect Life Act the only way a supplement can be offered is if it is offered entirely separately, administered separately 

from the underlying coverage and is the example actually that Mr. 

Cassidy provided before where you have a terrible car accident and 

you have several things going on at the same time: an injury and 

potentially an abortion. You could easily end up in a situation 

where both—with the full coverage has to work in tandem in order 

to work otherwise the supplement and the primary just both deny 

it. 

Mr. ENGEL. Well, I think that this is another attempt to try to 

kill the Affordable Care Act and I am sorry that it uses—this legislation uses low-income and middle-income women as a political 

football. I just don’t think it is right. Professor Alvare ́, I want to 

109 

ask you a question. You talked a lot about the conscience clause 

and conscience protections for hospitals and doctors. I actually do 

agree with you on a number of things. I don’t think that anybody 

who is opposed to abortion should be forced to perform one. And 

I don’t think that hospitals that for moral or religious reasons don’t 

believe in it should be forced to perform it. That is their conscience. 

You talked about the conscience of doctors or hospitals. But what 

about the conscience of the woman who is being affected? If in her 

conscience, if what she decides and she has to make a gut-wrenching decision, or if the family has to make a decision because of the 

woman’s health why are we not respecting her conscience? Why 

only the conscience of the hospital or the doctor? 

Ms. ALVARE. Thank you, sir. Under your definition of that being 

her conscience we do have over 1.2 million abortions a year with 

a hugely disproportionate number among the women you would 

consider to be vulnerable that we especially want to take care of. 

And if you are saying that—which I would not agree with—that 

abortion is part of that care, then I think you can rest assured in 

a rather sad way that the most vulnerable women are getting access to the most abortions. And the conscience protection for them 

is Roe, Casey, Stenberg, Gonzales which allows abortion on demand in the United States. 

Mr. ENGEL. But you would eliminate that so where is—— 

Ms. ALVARE. Absolutely. 

Mr. ENGEL. Where is respect for her conscience? 

Ms. ALVARE. This bill does not eliminate that whatsoever and I 

would also bring up which I should have before and I am sorry the 

Church amendment which since 1973 has not only said that employers can’t discriminate against doctors who don’t want to do 

abortions, but also can’t discriminate against doctors who do. Now, 

they can’t do them at a religious or morally opposed hospital, but 

they are protected by federal law from—for doing them. 

Mr. ENGEL. But you would eliminate it given your druthers, 

would you not? 

Ms. ALVARE. Would eliminate? 

Mr. ENGEL. Abortion under any circumstances. You said—— 

Ms. ALVARE. That is absolutely true, but this Act doesn’t agree 

with what I say. 

Mr. ENGEL. Even with rape and incest you would say a woman 

should be forced to go through a pregnancy if she was raped or if 

there was incest. 

Ms. ALVARE. I would never punish the child for what other people did. But this bill doesn’t come close to reducing abortion in the 

United States, sadly enough, unless it changes the federal bully 

pulpit to say abortion is not a preferred service in a way that I 

hope it will. 

Mr. ENGEL. Mr. Chairman, before I relinquish, Mr. Towns before 

he left asked me if I would submit for him for the record—unanimous consent to submit testimony from the National Asian Pacific 

Women’s Forum and the Center for Reproductive Rights. I have it 

here. I am doing it on behalf of Mr. Towns. 

Mr. PITTS. Good enough. Could—we haven’t seen that. Take a 

look at that. 

Mr. ENGEL. Yes. Thank you. 

110 

Mr. PITTS. Chair thanks the gentleman and recognizes the gentleman from New York, Mr. Weiner for 5 minutes. 

Mr. WEINER. Thank you, Mr. Chairman. Let us face it. There is 

a broad gulf. Mr. Engel is right on people’s views of abortion and 

the Hyde amendment is one way to come to a conclusion on it. I 

don’t believe that someone should be denied a medical procedure 

because of their income. I don’t believe that someone who is more 

well-to-do who gets enormous tax breaks from the country that we 

don’t attach to that tax break an agreement that they won’t get a 

certain medical procedure. I don’t believe we should distribute 

health care that way. I think it is inhumane and immoral. We have 

this Hyde amendment that is supposed to try to strike some kind 

of a middle ground that I am not completely happy with and members of the panel are not completely happy with. But let us agree 

on what we are saying here. We are not codifying the Hyde amendment. The Hyde amendment says that there is an exemption from 

the restriction of an abortion if a pregnancy is the result of a rape 

or an act of rape or incest. The bill that the sponsor would have 

liked to have us pass and probably will still succeed, a pregnancy 

occurred because a pregnant female is the result of a forcible rape 

changing the definition of rape because apparently some rape is 

more desirable in the eyes of the maker of the bill than others. And 

that includes a minor in active incest. So it can’t be someone 19 

is that age. So it is not at any effort here to codify the Hyde 

amendment. This is in an effort to expand the Hyde amendment. 

And well, frankly, someone caught him this time but they will 

work it in. They are the majority party. They can work this in at 

rules committee. We can count on seeing this language again expanding the Hyde amendment. Don’t let anyone who supports this 

bill ever say to you I am for less government regulation. There is 

too much government regulation. You have got to be kidding. You 

can’t vote for this thing and then say you are for less government 

regulations the mother of all government regulations. This is the 

regulation of an individual woman in a room with her doctor and 

Congressman Pitts apparently. I can’t think of a bigger government 

regulation. So let us agree that in one hearing last week where we 

are against government regulation and another one this week we 

are for all kinds of government regulation. If you don’t think it is 

a government regulation ask a doctor who has got to try to navigate this hearing. God bless the three of you, but it is complicated 

stuff because you are trying to shoehorn government into what is 

essentially a basic relationship that revolves around health care. It 

doesn’t revolve around which funding stream is coming—of course 

this is complicated. Of course you guys have different view of this. 

And if you are a physician and I—you can’t swing a dead cat 

around here without signing someone—well, I am speaking from a 

level of experience. I am a doctor, therefore I can tell you. I mean, 

stop that already. The bottom line about this is you are not any 

particular doctor for a particular client. I don’t want anyone who 

is a doctor here in my operating room. You can just keep with your 

Congressman stick. It is more—that is better. I mean, what this is 

about is a fundamental philosophical agreement. And that is that 

if you are conservative and you believe in smaller, less intrusive 

government you have got to take a wild, wild, philosophical bank 

111 

shot to get back into supporting this bill. I don’t know how you do 

it. I really don’t know how you can ever say you are conservative 

believing you should have this much of government involvement in 

a medical decision in a conversation. And I do have to say this. I 

know we read the Constitution that first day we were here and I 

am glad we did. You have to also basically say if you support this 

you don’t believe in a right to privacy for at least one half of the 

country. And that is the bottom line. Now some people don’t. Some 

people believe to this day and you know the right to privacy as my 

lawyer friends or people who were lawyers and portraying lawyers 

the fact is that there is—does and there is not explicit right to privacy. But I think most Americans of all political stripes believe 

there is a basic right to privacy. Is there anything more basic, more 

basic than your body? Is there anything more basic privacy there? 

Well, not according to—not according to many people. And that is 

the conversation here. And if you are on the side of the—saying 

you know what? I think government should have a limit on where 

they go. I think there should be a limit beyond which they should 

not pass, this means you do not support this bill bottom line. If you 

believe there is no limit, you can go anywhere, you can get into any 

personal relationship the government wants to get involved in they 

can we have got a bill for you and we are going to have others. But 

I have to tell you something. I would say to my colleagues and 

friends that if you are going to wring your hands and gaze at your 

naval about how we reduce regulation in this country and how we 

get government out of business, try being in the business of health 

care watching this debate. Try dealing with an emergency room situation where a woman is coming in there and the doctor is saying 

you know what? I believe this is a medically necessary procedure. 

I want to do it. But wait a minute. I got to go through this first. 

I got to go—and let me—and someone get CSPAN 9 tapes back for 

me so I can see if I am allowed to do it. There is too much government regulation in this. And I think the best thing to do is we 

should say let doctors and their patients make these decisions. And 

as far as I remember listening to health care debate, so did my Republican friends way back when last week. 

Mr. PITTS. Chair thanks gentleman. On the issue of the unanimous consent request, without objection. 

[The information appears at the conclusion of the hearing.] 

Mr. BURGESS. Mr. Chairman, was there a question in that soliloquy? Should we let our panel respond? 

Mr. PITTS. Would one of the panelists like to respond to any of 

them? Mr. Johnson? 

Mr. JOHNSON. I think you are forgetting someone, Mr. Weiner. 

What about this little girl here? This is from the Grand Jury Report. You talk about the privacy of the body? What about her body? 

You are forgetting someone. There is another human individual, a 

member of the human family who is involved here. That is why it 

is different than—— 

Mr. WEINER. When you say another, Mr. Johnson, are you stipulating that the woman has rights here? 

Mr. JOHNSON. Of course the woman has rights including the 

right to life. But he unborn child is also a member of the human 

family. 

112 

Mr. WEINER. And Mr. Johnson, do you think that a bunch of 

members of Congress should make that determination where that 

line is? 

Mr. JOHNSON. We think that the Congress makes laws for all 

members of the human family. 

Mr. WEINER. Well that is a yes. You think 435 fairly well-to-do, 

mostly white men should make that decision? 

Mr. JOHNSON. I think the elected representative of the American 

people should establish—— 

Mr. WEINER. Should make decisions for that woman and child? 

Mr. JOHNSON. Can I finish my answers may I not? 

Mr. WEINER. Well, it doesn’t sound terribly enticing, no. 

Mr. PITTS. Chair thanks gentleman. Chair recognizes the 

gentlelady from Colorado, Ms. DeGette for 5 minutes. 

Ms. DEGETTE. Thank you so much, Mr. Chairman. I have quite 

a number of questions for all the witnesses so if you can try to keep 

your answers short I would appreciate it. Professor Rosenbaum, 

you have written extensively on issues around insurance law as 

part of your academic career. Correct? 

Ms. ROSENBAUM. I have. 

Ms. DEGETTE. Now, right now under current law—is your microphone on? We are having—— 

Ms. ROSENBAUM. It is. 

Ms. DEGETTE. Under current law right now employers can— 

many employers can take tax credits for offering their employees 

insurance plans. Correct? 

Ms. ROSENBAUM. It is deductible. 

Ms. DEGETTE. And so they are getting a federal benefit for offering their employees insurance. Correct? 

Ms. ROSENBAUM. Indeed. 

Ms. DEGETTE. Right now? 

Ms. ROSENBAUM. Yes. 

Ms. DEGETTE. And the insurance plans that many employers 

offer to their employees include a full range of reproductive services including abortion coverage. Correct? 

Ms. ROSENBAUM. That is correct. 

Ms. DEGETTE. And the Hyde amendment as it is currently written even in the Affordable Care Act and the other bills does not 

preclude people from getting tax credits for offering insurance 

plans that offer a full range of reproductive services? 

Ms. ROSENBAUM. Tax Advantage Plans are outside the Hyde 

amendment. 

Ms. DEGETTE. Now, in addition, most insurance policies don’t 

break out abortion services. They just say any medically necessary 

services. So if it is legal and it is necessary then the insurance will 

cover it. Correct? 

Ms. ROSENBAUM. Correct. 

Ms. DEGETTE. Now, Professor, the Hyde amendment says that no 

federal funds shall be used to pay for abortions with the exception 

of rape, incest, and the life of the mother. Correct? 

Ms. DEGETTE. And that does not include indirect expenditures 

like tax credits or tax deductions. Is that right? 

Ms. ROSENBAUM. It does not. 

113 

Ms. DEGETTE. So under this legislation, this Pitts bill, for the exchanges and then under the Smith bill which is also being examined what it would do, it would go far beyond the established law 

of current law which says no direct federal funds shall be used for 

abortion. And it would then define a whole different set of benefits 

that people get in the way of tax relief as somehow being federal 

funding. Is that correct? 

Ms. ROSENBAUM. Correct. 

Ms. DEGETTE. And so is it your opinion, Professor, that what 

that would do in essence would be to either if employers wanted 

to offer people plans in the exchange that offered abortion coverage 

they couldn’t get the tax credits. Right? 

Ms. ROSENBAUM. Correct. 

Ms. DEGETTE. So then those employers would be paying higher 

taxes. Wouldn’t they? Because they wouldn’t get the—— 

Ms. ROSENBAUM. They offered a product that was not tax advantaged anymore. 

Ms. DEGETTE. Right. So basically employers would be forced to 

purchase plans that didn’t offer a legal medical service that they 

are offering now in order to get federal tax relief. Right? 

Ms. ROSENBAUM. The other way of saying it is that plans—that 

companies would stop selling products that offered—— 

Ms. DEGETTE. Right. And so that is far beyond what the Hyde 

amendment says. 

Ms. ROSENBAUM. Yes. 

Ms. DEGETTE. OK. Than you very much. Now, Professor Alvare ́, 

I wanted to ask you a question following up on what Mr. Dingell 

and several other people were asking you. Section 1303 of the Affordable Care Act talks about the treatment of abortion under the 

Act. But under the Pitts bill, this bill that we are talking about 

today, the words regarding abortion in Section 1303 are struck and 

instead the language that says protecting conscience rights is inserted. Correct? 

Ms. ALVARE. That is correct and—— 

Ms. DEGETTE. Is it your understanding as sort of an ethicist that 

conscience rights could be talking about more issues other than 

abortion? For example, Catholic providers conscience rights around 

birth control and family planning and contraception—it could be interpreted that way couldn’t it? 

Ms. ALVARE. I don’t think so, Congresswoman. 

Ms. DEGETTE. Why not? 

Ms. ALVARE. Because the purpose of that was to strike a heading 

that was not properly characterizing what went before it. And at 

the same time, to extend non-preemption to State laws not only regarding abortion and abortion coverage but conscience. 

Ms. DEGETTE. So OK. So I am sorry, you can supplement your 

answer. I apologize. So you don’t think so? 

Ms. ALAVARE. That is all of it. 

Ms. DEGETTE. OK. Mr. Johnson, I just have a couple questions 

for you. Now, you have been the head of the National Right to Life 

Committee since 1981. Correct? 

Mr. JOHNSON. No, I am not the head of the National Right to 

Life Committee. I am the legislator. 

114 

Ms. DEGETTE. OK. I am sorry. You are the legislative director. 

Thank you for clarifying that. Do you support a constitutional 

amendment to overturn Roe v. Wade? Yes or no? 

Mr. JOHNSON. Our organization has supported constitutional 

amendment—— 

Ms. DEGETTE. Do you support a constitutional amendment to 

overturn Roe v. Wade? 

Mr. JOHNSON. Properly drafted, yes. 

Ms. DEGETTE. Yes or no? 

Mr. JOHNSON. I said if properly drafted. 

Ms. DEGETTE. Yes or no? 

Mr. JOHNSON. There have been many amendments and some we 

support. Some we don’t. 

Ms. DEGETTE. Do you support—OK. But you would overturn Roe 

v. Wade, right? 

Mr. JOHNSON. We would overturn Roe v. Wade. 

Ms. DEGETTE. Now, do you agree with Professor Alvare ́ that 

abortion should be outlawed. Correct? 

Mr. JOHNSON. The position of the National Right to Life Committee—— 

Ms. DEGETTE. No, what is your position, sir? 

Mr. JOHNSON. No, I represent the National Right to Life Committee. 

Ms. DEGETTE. So you are not going to answer that question? 

Would that be correct? 

Mr. JOHNSON. I am going to answer it. I am just testifying on 

the behalf of the National Right to Life Committee. 

Ms. DEGETTE. OK. So what is their position? Do they support 

banning abortion? 

Mr. JOHNSON. The exception that should be allowed is to save 

the life of the mother if there is indeed such a case. Which you 

have heard disputed. 

Ms. DEGETTE. OK. So you would not support an exemption for 

rape. Correct? 

Mr. JOHNSON. That is correct. Our policy practice would not 

be—— 

Ms. DEGETTE. And you would not support—you as an organization would not support an exemption for incest. Is that correct? 

Mr. JOHNSON. That is correct. 

Ms. DEGETTE. Thank you very much, Mr. Chairman. I appreciate 

your comity in letting me participate. 

Mr. PITTS. Chair thanks the lady and recognize the gentleman 

from Ohio, Mr. Latta for 4 minutes. 

Mr. LATTA. Thank you very much, Mr. Chairman. At this time 

I would like to yield 5 minutes to Dr. Burgess. 

Mr. BURGESS. I thank the gentleman for yielding. Let us just 

come back to the issue we are here discussing today and it is not 

overturning Roe v. Wade. It is dealing with the aftermath that we 

were dealt in a very poorly drafted piece of legislation that was 

signed into law on March 23 of last year. And because of some of 

the unfinished business, the way that was pushed through so late 

in the night we are here today to make certain that we all understand what the parameters are, what is required of each of us, and 

what the Federal Government is going to be required to cover and 

115 

reimburse for. So I do think that while I might agree with Mr. 

Weiner and it hurts me to say this, but I might agree with Mr. 

Weiner on some points. And in fact with no thought to my personal 

safety I would go into an operating room if it were required to save 

his life even though I am licensed and uninsured. But at the same 

time what we are talking about here today is the use of federal 

funds, taxpayer dollars to fund this procedure. And there have 

been correctly some parameters and boundaries set around this 

since 1976. And we are here to help the President see the execution 

of his Executive order and make certain that the spirit of it is 

upheld not just this year, but next year and the year after. And 

even if there is a different president in the White House and a different set of Executive orders that the spirit of this Executive order 

will continue to be carried out. Now, let me just ask a general 

question, but probably it goes to Mr. Johnson. Does anyone really 

want to force someone to perform a procedure of termination of 

pregnancy if it is against their will to do so? 

Mr. JOHNSON. Dr. Burgess, I have heard remarks from both sides 

here today about no one would want to do that. And I can only implore the members of the Committee who really want to explore 

that issue to read this document: Health Care Refusals. It is put 

out by the National Health Law Program, 2010. Professor Rosenbaum was on the advisory committee which according to the acknowledgments played a very active role. It is an amazing document. I just read it myself the other day for the first time. It is 

about 100 pages. And it is relentless in attacking all forms of conscience laws. They absolutely argue that it is an obligation that 

should be enforced both on institutions and individuals to perform 

abortions to provide abortions. This should be enforced through 

law, through malpractice law, through licensure requirements, and 

through diverse other means. There are even attacks on physicians 

who simply share their personal views about the sanctity of human 

life with their patients. That is deemed to be a breech of the ethics 

as defined by these people. The ACLU has a very active project as 

Mr. Dorflinger from the Catholic Bishops Conference testified before the other committee yesterday to try to compel Catholic hospitals to either get with the program on abortion or get out of town. 

They do want to basically drive people out of health care if you will 

not get with their program and ideology of collaborating and actively participating in killing unborn members of the species Homo 

sapiens. And if you think I am engaged in hyperbole, I implore you 

to read this report. 

Mr. BURGESS. I thank you for bringing it to our attention. Certainly, Mr. Chairman, if the committee could be provided a copy of 

that I for one would be happy to look at it. Now, if—Mr. Johnson, 

if this bill does not pass—well, let me just ask you a question. Do 

you really think that hospitals are going to not allow emergency 

treatment for women who show up in the emergency room who are 

suffering a complication? And we have heard that professed by the 

other side but is that the intent of this legislation? 

Mr. JOHNSON. I believe they are going to continue to comply with 

EMTALA and just with good medical practice which is to recognize 

that they have two patients and the law could not be more explicit. 

Professor Alvare ́ read it earlier. It says you seek to help to save 

116 

i(Beal v. Doe, 432 U.S. 438 [1977], Maher v. Roe, 432 U.S. 464 [1977]; and Poelker v. Doe, 

432 U.S. 519 [1977]) 

both the mother and her unborn child. It uses that term unborn 

child. And I don’t see how any fair reading of that law could mean 

that that is a mandate to take the unborn child out in pieces. OK? 

Mr. BURGESS. And I appreciate your answer. Just because I am 

about to run out of time, again, I want to stress that this law is 

to put the boundaries in place that the President asked for in the 

Executive order. This hearing, this legislation is not about overturning Roe v. Wade. It is not about doing anything other than 

helping the President accomplish his goal that taxpayer funding 

will not be used for the performance of elective termination of pregnancy. Thank you, Mr. Chairman. I will yield back my—I will yield 

back to the gentleman from Ohio. 

Mr. PITTS. Chair thanks the gentleman. Every member was 

emailed with the hearing notice a copy of the discussion draft. If 

any of you did not have a copy we will be happy to provide it for 

you. That in conclusion I would like to thank all of the witnesses 

and all of the members that participated in today’s hearing. I remind the members that they have 10 business days to submit questions for the record, and I ask the witnesses all agree to respond 

promptly to those questions. Again, I would like to thank Mr. 

Pallone, all the members for the civil tone of the hearing on such 

a controversial issue. The subcommittee hearing is adjourned. 

[Whereupon, at 4:20 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

PREPARED STATEMENT OF HON. JOE BARTON

Thank you Chairman for holding this important hearing. As ChairmanEmeritus, 

I stand with Chairman Upton and Subcommittee Chairman Pitts in support of legislation to prevent federal funding for abortion or abortion coverage under the Patient 

Protection and Affordable Care Act (PPACA). 

It has been 38 years since the United States Supreme Court, in Roe v. Wade, determined that the U.S. Constitution protects a woman’s right to terminate her pregnancy. Three years after this legalization of abortion, the Supreme Court, in 3 related rulings, determined that states have neither a statutory or moral constitutional obligation to fund elective abortions or provide access to public facilities for 

such abortions i

. In Harris v. McRae, the Court also indicated that there is no statutory or constitutional obligation of the states or the federal government to fund necessary abortions. 

In the 111th Congress, during the debate of the various health care reform bills, 

public funding for abortions and the Hyde Amendment were hotly debated and discussed. Republicans were firmly told that federal dollars would not be used H.R. 

3962, the Affordable Health Care for America Act, was to include the Stupak-Pitts 

Amendment which preserved the Hyde Amendment. The Patient Protection and Affordable Care Act, which is now law, does not include the Hyde Amendment. In fact, 

all the Patient Protection and Affordable Care Act requires is that at least one plan 

not cover abortions. The language requires that those who are enrolled in a plan 

that covers abortion make separate payments into an account that will be used for 

abortions, therefore creating public and ‘‘private’’ funds. However, just because the 

funds are put into another account does not mean they are not federal dollars subsidizing abortions. Regardless of what account these federal dollars to put into, 

they’re still taxpayer dollars being used to pay for abortions. PPACA also includes 

language which could allow the Health Resources and Services Administration 

(HRSA) to define abortion as ‘‘preventative care.’’ 

While the House has voted to repeal PPACA, in its entirety, the Senate voted 

against a full repeal. So, now we are left with the task of repealing the sections of 

PPACA that we can and reforming others. I think the issue of abortion funding is 

one of the top priorities for repealing and reforming. American taxpayers should not 

117 

be forced to fund elective abortions, nor should doctors who have moral or religious 

objections be forced to perform abortions. I supported the Stupak-Pitts Amendment; 

I have also cosponsored the Protect Life Act. 

I look forward to hearing from our witnesses and working to repeal these provisions of PPACA. 

PREPARED STATEMENT OF HON. MARSHA BLACKBURN

Mr. Chairman, I would like to thank you for holding this hearing and I welcome 

our witnesses. I am pleased that this Subcommittee will examine federal funding 

of abortion services as provided by the Patient Protection and Affordable Care Act 

(PPACA). 

I have long held the belief that unborn lives should be protected, and I do not 

condone the use of taxpayer dollars to support elective abortions. Furthermore, Congress should respect the right of conscience and not force individuals or organizations to violate their personal and moral convictions by having to support abortion 

services for fear of being penalized by federal or state governments. 

The right of conscience has long been protected in this country under the Hyde 

amendment and is a tradition that this Committee should seek to restore to all 

health care professionals. Some may argue that the Hyde amendment is no longer 

necessary after President Obama signed an Executive Order banning the use of federal funding of abortions. However, as you will see in my questioning, even former 

White House Chief of Staff Rahm Emanuel has confirmed that this Executive Order 

will not prevent taxpayers from funding abortions in PPACA since the Executive 

Order does not ‘‘carry the force of law.’’ 

Mr. Chairman, I thank you for bringing this issue before the Committee today 

and I urge my colleagues to join me in ensuring that taxpayers do not fund abortion 

and the right of conscience is restored. 

Thank you Mr. Chairman and I yield back the balance of my time. 

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PREPARED STATEMENT OF HON. EDOLPHUS TOWNS

Mr. Chairman, Ranking Member Pallone, and distinguished colleagues—thank 

you for being here today to discuss Chairman Pitts’ proposal to amend the Affordable Care Act regarding abortion coverage. 

The proposed bill, the Protect Life Act, claims to unambiguously state that no federal funds will be used to pay for abortion services. However, under current law, 

this is already the case. It is already illegal to pay for elective or ‘‘therapeutic’’ abortion using federal funds. This Act does nothing to change that fact. 

What the Act does do is impose unprecedented limitations on abortion coverage, 

while restricting access to abortion services for all women - not just those who purchase coverage through a state health-insurance exchange. It makes it virtually impossible for insurance companies in state health-insurance exchanges to offer abortion coverage, even to women paying entirely with their own money, and would forbid abortion coverage for millions of middle-and low-income women who will receive 

partial subsidies to purchase insurance. 

In addition, the bill penalizes private insurers who offer comprehensive insurance 

products for sale in multiple states. It imposes crippling administrative burdens on 

plans that choose to cover abortion care. Namely, under this Act, if an insurance 

company offers a plan with abortion coverage, it must also offer a second, identical 

plan without abortion coverage, greatly increasing an insurer’s administrative overhead. The likely outcome under this Act, is that a private insurance company would 

simply choose to not offer any health plans that cover abortion services. 

Most importantly, the bill expands federal conscience protections, namely by overriding critical federal protections provided in the Emergency Medical Treatment and 

Labor Act (EMTALA). These protections were written with women in mind, and require that all patients, regardless of ability to pay, be provided life-saving, stabilizing treatment when they arrive at an emergency room. In the event that an abortion is medically necessary to save the mother’s life, one will be performed in this 

narrow circumstance. 

Overriding EMTALA in the name of ‘‘conscience’’ is a very dangerous precedent. 

The Protect Life Act would effectively change current federal law to allow hospitals 

to refuse treatment to a woman. Furthermore, it would allow, under the guise of 

‘‘conscience’’ a hospital to refuse to refer a woman to another facility that would be 

able to save her life. 

I am not against ‘‘conscience’’ laws. I am, however, against the use of these laws 

to allow doctors to watch their patients die. 

I have serious concerns with this bill. I hope that Members on both sides of the 

aisle can work together, to ensure access to quality care for all. 

Thank you, Mr. Chairman. I yield the balance of my time. 

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