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A chain e-mail written by former attorney Michael Connelly -- which blasts the Democrats' health care plan as unconstitutional -- was penned in August, but continues to make the rounds. Although many of the issues in the e-mail have been addressed in previous PolitiFact items, we continue to get queries about it.
So we've decided to visit -- or revisit -- several claims made in the e-mail. In this item, we will address the claim that HR 3200, "The Affordable Health Care Choices Act of 2009," would provide for "free abortion services, and probably forced participation in abortions by members of the medical profession."
In the health care debate, abortion coverage has been a moving target as provisions have changed in various versions of the House and Senate bills. And we should note that Connelly wrote his e-mail back in August, long before the bills came to the floors of the two chambers.
The House ultimately passed a health care bill that included an abortion amendment that essentially renders Connelly's argument moot. Still, Connelly said in an interview with PolitiFact on Jan. 20, 2010, that the same concerns he raised about the House bill back in August apply to the version of the health care bill passed by the Senate.
Before we address that, let's back up a step. Although the original health care reform bills introduced in both the House and Senate were silent on abortion, the issue came to a head in late July when the House Energy and Commerce Committee passed an amendment offered by Rep. Lois Capps, D-Calif., which sought to make abortion coverage available in both the public plan and in private plans participating in the exchange, but paid exclusively through patient premiums, not government subsidies. Under that amendment, insurers would not be required to offer, or be prohibited from offering, abortion services in order to participate in the exchange. It also provided "conscience protections" so that any insurance plan participating in the exchange could not discriminate against hospitals or other health care facilities (such as Catholic hospitals) unwilling to provide abortions.
That was largely the working House plan when Connelly penned his e-mail. And by that measure, we think Connelly was wrong when he said the bill would provide free abortions. Insurance purchased through private insurers on the exchange or the public option would not be "free." In fact, the amendment required that abortion coverage be paid through premiums paid by the insured. And Connelly's claim that the bill would probably mean "forced participation in abortions by members of the medical profession," was specifically prohibited in "conscience protection" measures in the amendment.
And that all became moot in November 2009, when a group of Democrats led by Rep. Bart Stupak of Michigan forced a vote on an amendment that included tight restrictions barring any insurance plan that is purchased with government subsidies from covering abortions. It passed.
Connelly said the concerns he raised in his August e-mail no longer apply to the House bill. But they still apply to the bill that passed the Senate, he said. The abortion language in the Senate bill is close to that in the Capps Amendment (though the Senate plan does not include a public option). As with the earlier House bill, the Senate plan would allow insurance companies on the exchange to offer abortion services. But for the same reasons we mentioned about the earlier House plan, we think it's a distortion to say it would provide "free abortions." And as in the earlier House bill, there are specific "conscience protections" written into the bill that make it clear doctors could not be discriminated against for opting not to provide abortions. So under the bill, no doctors would be forced to provide abortions.
In other words, the claim was false when Connelly made it; it's moot now with regard to the House bill; and it's false with regard to the Senate bill.
In other words, under no version of the plan then or now is Connelly's statement accurate. And we rate the claim False.
Michael Connelly's Web site, "The Truth About the Health Care Bills"
Cornell University Law School, The Constitution of the United States of America
PolitiFact, "Abortion and the Baucus health care bill," by Robert Farley, Sept. 21, 2009
CNS News, "Reid Introduces Senate Health Bill That Mandates Federally Subsidized Abortion," by Terence P. Jeffrey, Nov. 19, 2009
FactCheck.org, "Health Care Overhaul: Constiutional?" by Viveca Novak, Oct. 2, 2009
Fort Myers News-Press, "Florida AG Bill McCollum says health care bill is unconstitutional," by Paul Flemming, Jan. 19, 2010
Los Angeles Times, Opinion: "Constitutional objections to Obamacare don't hold up," by Akhil Reed Amar, Jan. 20, 2010
House Rules Committee Web site, HR 3962
House Energy and Commerce Committee, The Capps Amendment to HR 3200
PolitiFact, "Boehner says Democrats' health care plan would subsidize abortions," by Robert Farley, Aug. 7, 2009
New York Times, "Abortion Was at Heart of Wrangling," by David M. Herszenhorn and jackie Calmes, Nov. 7, 2009
Ed2go.com, Instructor Bio: Michael Connelly
Wall Street Journal, Opinion: "Mandatory Insurance Is Unconstitutional," by David B. Rivkin Jr. and Lee A. Casey, Sept. 18, 2009
Politico, "Health care reform is constitutional," by Erwin Chemerinsky, Oct. 23, 2009
Fox News, "Health Care Bill Could Face String of Legal Challenges," Dec. 22, 2009
Interview with Michael Connelly, Jan. 20, 2010
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