Re: Abortion Non-Discrimination Act

Fact Sheet: ACLU's Misrepresentations
about the Abortion Non-Discrimination Act

In testimony before the House Energy and Commerce Subcommittee on Health (July 11, 2002), the Reproductive Freedom Project of the American Civil Liberties Union (ACLU) made several claims about the practical effect of H.R. 4691, the Abortion Non-Discrimination Act. Each claim is quoted below and followed by a rebuttal that sets the record straight.

Claim: "It would compromise the ability of Title X clients to obtain information critical to their health."

Response: This is false -- nothing in H.R. 4691 limits federal or state agencies' ability to require the provision of accurate information about abortion or abortion providers. Under H.R. 4691, government may not penalize a private health care entity for declining to provide or make arrangements for abortions. However, this does not conflict with current federal law on Title X family planning services, which actually forbids grantees to promote and facilitate abortion. In an August 2001 letter to the Missouri Family Health Council, for example, the HHS Office of Population Affairs explained that a Missouri law against funding agencies which perform direct referrals for abortion does not conflict with federal requirements on providing information on pregnancy options to clients.

Claim: "It would interfere with the delivery of abortion services to poor women in dire emergencies. H.R. 4691 would impede a state's ability to comply with the federal Hyde Amendment, which mandates coverage of abortions for women in the Medicaid program in cases of rape, incest, or where the pregnancy endangers a woman's life."

Response: The bill creates no such conflict. The Hyde amendment requires states to reimburse providers for abortions in these rare cases - it does not require specific private health care providers who accept Medicaid patients to perform those abortions against their will, or authorize states to practice such coercion. In fact, the Medicaid managed care law explicitly instructs states to notify enrollees of any services to which they are entitled that a specific provider does not offer, and to notify the enrollees of how they might obtain such services elsewhere (42 USC § 1396u-2(a)(5)(D)). This law also explicitly protects providers from having to cover a counseling or referral service to which they have a moral or religious objection so long as they notify enrollees of their policy (42 USC § 1396u-2(b)(3)). If respect for conscience rights is an "impediment" to easy access to abortion, that impediment is already enshrined in federal law.

Claim: "It would interfere with states' ability to enforce their own laws on abortion. H.R. 4691 could prevent those states that cover medically necessary abortions beyond those mandated by the Hyde Amendment (whether as a result of state constitutional rulings or by virtue of state laws) from effectuating that coverage by contracting only with Medicaid managed care organizations that agree to provide or refer for abortion services."

Response: As in the federal law described above, states can ensure access to any abortions they fund without forcing specific providers against their will to provide these particular abortions. A requirement that a state will contract only with a provider that offers absolutely every reimbursable service would be an enormous barrier to patients' access to care, as few providers in any state could meet such a test.

Claim: "It would disrupt the enforcement of state health care regulations. H.R. 4691 would thwart the enforcement of state and local laws that require entities certified or licensed by the state to address the full range of health care needs in the communities they serve."

Response: It is the ACLU approach that would "disrupt" provision of health care in unprecedented ways. "According to a 1998 study published by the Alan Guttmacher Institute, only 14% of U.S. hospitals currently provide abortions, and many of these provide only a few procedures a year" (Web site of the Abortion Access Project, www.repro-activist.org, citing S. Henshaw, "Abortion Incidence and Services in the United States, 1995-1996," in 30 Family Planning Perspectives [Nov./Dec 1998] 263-70 & 287). If states denied licenses and certification to all hospitals that fail to provide the "full range" of abortions, our health care system would disappear. The fact is that the vast majority of states already have their own conscience laws that would prevent the enforcement of such a coercive and harmful policy.

Claim: "It could immunize a health care entity's refusal to provide emergency contraception, even to victims of rape," because "it does not define the term 'abortion'."

Response: Just the opposite is true. Because H.R. 4691 does not provide its own definition of 'abortion' or 'contraception,' it does not change the current federal policy of classifying the morning-after pill as "postcoital emergency contraception" [62 Federal Register 8609 ff. (Feb. 25, 1997)] . The conscience rights of providers who recognize that "emergency contraceptives" may have an abortifacient mode of action are very much in need of legal clarification - but that issue is not addressed by this particular bill.

__________________________
Secretariat for Pro-Life Activities
United States Conference of Catholic Bishops
3211 4th Street, N.E., Washington, DC 20017-1194 (202) 541-3070

July 25, 2002 Copyright © by United States Conference of Catholic Bishops