Michael Sean Winters has put up a post on NCR Online that is a rebuttal to a Deal Hudson commentar y on abortion and the public option. Winters demonstrates that he is either wholly ignorant of the legislative and judicial process, or that he puts support for Obamacare ahead of opposition to abortion.

Hudson argues that the public option will end up extending federal funding for abortion. He says that the courts will step in even if Congress doesn’t mandate abortion coverage in any such plan. Mind you, the courts have not stepped in to over-rule the Hyde Amendment lo these many years. The federal health insurance coverage that members of Congress enjoy does not include abortion coverage. Federal Medicaid funds do not support abortion. So, why would the federal option, which would be modeled after the insurance that members of Congress get, necessarily end up mandating abortion coverage? Hudson does not say.

I can’t speak for Hudson, but the Courts won’t even have to get involved in order for Congress to skirt the Hyde Amendment in order to fund abortion through the public option. As has been pointed out by numerous sources—and I’ll start out with the National Right to Life Committee —the Hyde Amendment only applies to annual HHS appropriations.
Since the Hyde Amendment applies only to funds appropriated through the annual HHS appropriations bill, the Hyde Amendment will not apply to any of the funds used to establish or operate either the “public option” or the premium-subsidy program created by H.R. 3200. Members of Congress who assert that the Hyde Amendment would prevent federal government funding of abortions under H.R. 3200 are misleading their constituents, in some cases perhaps inadvertently and in other cases perhaps by design.

It has been well established elsewhere that H.R. 3200, particularly as revised by the “Capps Amendment” (or Capps-Waxman Amendment) that was adopted in the House Energy and Commerce Committee on July 30, 2009, would (1) authorize the Secretary of Health and Human Services (HHS) to pay for elective abortions under the “public plan,” and (2) allow the “affordability credits” to subsidize both the public plan and private insurance plans that cover all abortions. See, for example, the August 21, 2009 FactCheck.org analysis “Abortion: Which Side is Fabricating,” and the August 13, 2009 NRLC factsheet “What Do the ‘Health Care Reform’ Bills Backed by President Obama Have to Do With Abortion?” The sole purpose of this memorandum is to correct the erroneous assertions that the Hyde Amendment would somehow prevent those results.


The NRLC goes into greater detail as to why the Democrats cannot hide behind the Hyde Amendment.

Even if one allows that there might be some reasonable arguments against the NRLC position, the next two paragraphs contain just a stunning amount of mendacity.        

Actually, I can think of one scenario in which this could happen. If the USCCB follows Hudson’s lead and opposes health care legislation that includes a public option that does not include abortion coverage, their moral voice will have been so weakened that perhaps they will not be able to perpetuate the Hyde Amendment or its health care corollary.

This is just amazing. In order for the Hyde Amendment to retain its teeth, the USCCB and other Obamacare skeptics just have to shut up and support this horrendous legislation or else their moral voice will not be heard. The pro-life Catholic rabble might disturb the utopia that will be brought about if Obama and his minions get what they want, so Winters spins a noble lie that we’ll just make matters worse by expressing our disagreement with the proposed plan. This is a disgusting and transparent effort by Winters to silence the opposition.

One hopes that Winters isn’t this naive. Does he actually think that the secular left really is interested in any sort of dialogue? Then again, maybe we should take Winters at his word. He is essentially saying that if the pro-life community expresses its outrage about the health care reform package, then the Democrats—out of spite—will do everything in their power to reverse the Hyde Amendment. If the party currently in power is motivated by such petty concerns, then where is the nobility in continuing to support such a party?

Now here’s the big whopper:

We are all waiting to see what the final legislation looks like. The bishops are right to insist that no federal dollars go to cover abortion: The Hyde Amendment is nearly as settled law as is Roe .

This is wrong on so many levels. The Hyde Amendment is a piece of Congressional legislation that can be repealed at any time for any reason.  Roe v. Wade is a decision handed down by the Supreme Court that cannot be reversed until at least five Supreme Court Justices vote to overturn it, and they can do that only when a case comes before them that touches upon the issue.  Moreover, federal legislators are not bound by the (absurd) doctrine of stare decisis , and therefore are subject to no theoretical limitations on their ability to repeal legislation. They can do it at any time, for any reason.

The claim is also absurd because it just ignores political reality. The Supreme Court rarely reverses itself. It happens, but reversing a nearly forty-year old decision is about several orders of magnitude more difficult than repealing federal legislation. Furthermore, while the Hyde Amendment has been around for nearly as long as judicially mandated abortion rights, it is nowhere as ingrained in our culture as the Roe decision. Does anybody rationally think that the repeal of the Hyde Amendment would cause even remotely the same type of stir that reversal of Roe would create?  I’m willing to wager that a majority - probably a super majority—of Americans don’t even know that the Hyde Amendment exists. And while a majority might theoretically oppose federal funding of abortion, the mere fact that the Hyde Amendment is not steeped in the public consciousness means that those who seek to repeal it have a far easier political path to trod than those who seek to reverse Roe .

For his sake, I truly hope that Winters is simply unaware of the facts and is not just spinning.

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