H. Rept. 112-38 - 112th Congress (2011-2012)

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House Report 112-38 - NO TAXPAYER FUNDING FOR ABORTION ACT

[House Report 112-38]
[From the U.S. Government Publishing Office]


112th Congress                                             Rept. 112-38
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================



 
                  NO TAXPAYER FUNDING FOR ABORTION ACT

                                _______
                                

                 March 17, 2011.--Ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                         [To accompany H.R. 3]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3) to prohibit taxpayer funded abortions and to 
provide for conscience protections, and for other purposes, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................     4
Background and Need for the Legislation..........................     4
Hearings.........................................................     9
Committee Consideration..........................................    10
Committee Votes..................................................    10
Committee Oversight Findings.....................................    21
New Budget Authority and Tax Expenditures........................    21
Congressional Budget Office Cost Estimate........................    21
Performance Goals and Objectives.................................    22
Advisory on Earmarks.............................................    22
Section-by-Section Analysis......................................    23
Changes in Existing Law Made by the Bill, as Reported............    31
Dissenting Views.................................................    35

                             The Amendment

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``No Taxpayer Funding for Abortion 
Act''.

SEC. 2. PROHIBITING TAXPAYER FUNDED ABORTIONS AND PROVIDING FOR 
                    CONSCIENCE PROTECTIONS.

  Title 1, United States Code is amended by adding at the end the 
following new chapter:

 ``CHAPTER 4--PROHIBITING TAXPAYER FUNDED ABORTIONS AND PROVIDING FOR 
                         CONSCIENCE PROTECTIONS

``Sec.
``301. Prohibition on funding for abortions.
``302. Prohibition on funding for health benefits plans that cover 
abortion.
``303. Prohibition on tax benefits relating to abortion.
``304. Limitation on Federal facilities and employees.
``305. Construction relating to separate coverage.
``306. Construction relating to the use of non-Federal funds for health 
coverage.
``307. Non-preemption of other Federal laws.
``308. Construction relating to complications arising from abortion.
``309. Treatment of abortions related to rape, incest, or preserving 
the life of the mother.
``310. Application to District of Columbia.
``311. No government discrimination against certain health care 
entities.

``Sec. 301. Prohibition on funding for abortions

  ``No funds authorized or appropriated by Federal law, and none of the 
funds in any trust fund to which funds are authorized or appropriated 
by Federal law, shall be expended for any abortion.

``Sec. 302. Prohibition on funding for health benefits plans that cover 
                    abortion

  ``None of the funds authorized or appropriated by Federal law, and 
none of the funds in any trust fund to which funds are authorized or 
appropriated by Federal law, shall be expended for health benefits 
coverage that includes coverage of abortion.

``Sec. 303. Prohibition on tax benefits relating to abortion

  ``For taxable years beginning after the date of the enactment of this 
section--
          ``(1) no credit shall be allowed under the internal revenue 
        laws with respect to amounts paid or incurred for an abortion 
        or with respect to amounts paid or incurred for a health 
        benefits plan (including premium assistance) that includes 
        coverage of abortion,
          ``(2) for purposes of determining any deduction for expenses 
        paid for medical care of the taxpayer or the taxpayer's spouse 
        or dependents, amounts paid or incurred for an abortion shall 
        not be taken into account, and
          ``(3) in the case of any tax-preferred trust or account the 
        purpose of which is to pay medical expenses of the account 
        beneficiary, any amount paid or distributed from such an 
        account for an abortion shall be included in the gross income 
        of such beneficiary.

``Sec. 304. Limitation on Federal facilities and employees

  ``No health care service furnished--
          ``(1) by or in a health care facility owned or operated by 
        the Federal Government; or
          ``(2) by any physician or other individual employed by the 
        Federal Government to provide health care services within the 
        scope of the physician's or individual's employment,
may include abortion.

``Sec. 305. Construction relating to separate coverage

  ``Nothing in this chapter shall be construed as prohibiting any 
individual, entity, or State or locality from purchasing separate 
abortion coverage or health benefits coverage that includes abortion so 
long as such coverage is paid for entirely using only funds not 
authorized or appropriated by Federal law and such coverage shall not 
be purchased using matching funds required for a federally subsidized 
program, including a State's or locality's contribution of Medicaid 
matching funds.

``Sec. 306. Construction relating to the use of non-Federal funds for 
                    health coverage

  ``Nothing in this chapter shall be construed as restricting the 
ability of any non-Federal health benefits coverage provider from 
offering abortion coverage, or the ability of a State or locality to 
contract separately with such a provider for such coverage, so long as 
only funds not authorized or appropriated by Federal law are used and 
such coverage shall not be purchased using matching funds required for 
a federally subsidized program, including a State's or locality's 
contribution of Medicaid matching funds.

``Sec. 307. Non-preemption of other Federal laws

  ``Nothing in this chapter shall repeal, amend, or have any effect on 
any other Federal law to the extent such law imposes any limitation on 
the use of funds for abortion or for health benefits coverage that 
includes coverage of abortion, beyond the limitations set forth in this 
chapter.    

``Sec. 308. Construction relating to complications arising from 
                    abortion

  ``Nothing in this chapter shall be construed to apply to the 
treatment of any infection, injury, disease, or disorder that has been 
caused by or exacerbated by the performance of an abortion. This rule 
of construction shall be applicable without regard to whether the 
abortion was performed in accord with Federal or State law, and without 
regard to whether funding for the abortion is permissible under section 
309 of this Act.

``Sec. 309. Treatment of abortions related to rape, incest, or 
                    preserving the life of the mother

  ``The limitations established in sections 301, 302, 303, and 304 
shall not apply to an abortion--
          ``(1) if the pregnancy is the result of an act of rape or 
        incest; or
          ``(2) in the case where a woman suffers from a physical 
        disorder, physical injury, or physical illness that would, as 
        certified by a physician, place the woman in danger of death 
        unless an abortion is performed, including a life-endangering 
        physical condition caused by or arising from the pregnancy 
        itself.

``Sec. 310. Application to District of Columbia

  ``In this chapter:
          ``(1) Any reference to funds appropriated by Federal law 
        shall be treated as including any amounts within the budget of 
        the District of Columbia that have been approved by Act of 
        Congress pursuant to section 446 of the District of Columbia 
        Home Rule Act (or any applicable successor Federal law).
          ``(2) The term `Federal Government' includes the government 
        of the District of Columbia.

``Sec. 311. No government discrimination against certain health care 
                    entities

  ``(a) Nondiscrimination.--A Federal agency or program, and any State 
or local government that receives Federal financial assistance (either 
directly or indirectly), may not subject any individual or 
institutional health care entity to discrimination on the basis that 
the health care entity does not provide, pay for, provide coverage of, 
or refer for abortions.
  ``(b) Health Care Entity Defined.--For purposes of this section, the 
term `health care entity' includes an individual physician or other 
health care professional, a hospital, a provider-sponsored 
organization, a health maintenance organization, a health insurance 
plan, or any other kind of health care facility, organization, or plan.
  ``(c) Remedies.--
          ``(1) In general.--The courts of the United States shall have 
        jurisdiction to prevent and redress actual or threatened 
        violations of this section by issuing any form of legal or 
        equitable relief, including--
                  ``(A) injunctions prohibiting conduct that violates 
                this section; and
                  ``(B) orders preventing the disbursement of all or a 
                portion of Federal financial assistance to a State or 
                local government, or to a specific offending agency or 
                program of a State or local government, until such time 
                as the conduct prohibited by this section has ceased.
          ``(2) Commencement of action.--An action under this 
        subsection may be instituted by--
                  ``(A) any health care entity that has standing to 
                complain of an actual or threatened violation of this 
                section; or
                  ``(B) the Attorney General of the United States.
  ``(d) Administration.--The Secretary of Health and Human Services 
shall designate the Director of the Office for Civil Rights of the 
Department of Health and Human Services--
          ``(1) to receive complaints alleging a violation of this 
        section;
          ``(2) subject to paragraph (3), to pursue the investigation 
        of such complaints in coordination with the Attorney General; 
        and
          ``(3) in the case of a complaint related to a Federal agency 
        (other than with respect to the Department of Health and Human 
        Services) or program administered through such other agency or 
        any State or local government receiving Federal financial 
        assistance through such other agency, to refer the complaint to 
        the appropriate office of such other agency.''.

SEC. 3. AMENDMENT TO TABLE OF CHAPTERS.

  The table of chapters for title 1, United States Code, is amended by 
adding at the end the following new item:

``4. Prohibiting taxpayer funded abortions and providing for 
              conscience protections..............................301''.

                          Purpose and Summary

    For more than 30 years, a patchwork of policies has 
regulated Federal funding for abortion. Amendments have been 
added to various appropriations bills that prohibit the Federal 
funding of abortions through the programs funded by those 
appropriations bills. The time has come for Congress to pass 
one piece of legislation to prohibit Federal funding of 
elective abortion, no matter the source in the Federal system 
of funding. H.R. 3, with the exception of a few narrow 
categories that have been accepted for many years, provides 
that the Federal Government shall not make taxpayers pay for, 
subsidize, encourage, or facilitate abortions or insurance 
coverage that includes abortion.

                Background and Need for the Legislation

    H.R. 3 was introduced by Reps. Chris Smith (R-NJ) and 
Daniel Lipinski (D-IL) on January 20, 2011.

            THE AMERICAN PEOPLE OPPOSE FEDERAL PAYMENTS AND 
                   FEDERAL ENCOURAGEMENT OF ABORTION

    The American people overwhelmingly oppose Federal funding 
of abortions.
    A 2010 Zogby/O'Leary poll found that 77% of Americans 
believe that Federal funds should never pay for abortion or 
should pay only to save the life of the mother.\1\
---------------------------------------------------------------------------
    \1\Zogby/O'Leary, January 19-21, 2010, The O'Leary Report, August/
September 2010, Volume 5, Issue 4, http://www.olearyreport.com/media/
pdf/OLR_Vol5Issue4_AugustSeptember2010
Final.pdf
---------------------------------------------------------------------------
    A September 2009 International Communications Research poll 
asked, ``If the choice were up to you, would you want your own 
insurance policy to include abortion?'' Among respondents, 68% 
answered no and only 24% answered yes.\2\
---------------------------------------------------------------------------
    \2\International Communications Research, September 16-20, 2009, 
1043 adults (margin of error:  3.0%).
---------------------------------------------------------------------------

   HUNDREDS OF THOUSANDS OF ABORTIONS WOULD BE PAID FOR EACH YEAR BY 
   FEDERAL TAXPAYERS WITHOUT THE POLICIES THAT H.R. 3 MAKES PERMANENT

    In 1993 the Congressional Budget Office estimated that the 
Federal Government would pay for as many as 675,000 abortions 
each year without the Hyde Amendment and other measures in 
place at the time to prevent taxpayer funding of abortion in 
Federal programs.\3\ By contrast, in 2008 there were 425 
abortions funded by the Federal Government (through Medicaid) 
and in 2009 there were 220 Medicaid-financed abortions.\4\ It 
is axiomatic that when government subsidizes conduct, it 
encourages it. Our tax code is replete with pertinent examples. 
The Supreme Court in Maher v. Roe acknowledged the truth of 
this proposition in the context of abortion when it equated 
government funding of an activity with government encouragement 
of that activity.\5\
---------------------------------------------------------------------------
    \3\Robert D. Reischauer, Director, Congressional Budget Office, 
Letter to the Congressman Vic Fazio (D-Ca) (July 19, 1993).
    \4\FY 2011 Moyer Report, submitted by the Office of the Assistant 
Secretary for Financial Resources, U.S. Department of Health and Human 
Services, February 2010, at 106.
    \5\Maher v. Roe, 432 U.S. 464, 475 (1977).
---------------------------------------------------------------------------
    According to recent studies, when government funding for 
abortion is not available under Medicaid or the state 
equivalent program, conservative estimates are that at least 
one-fourth of the Medicaid-eligible women who would otherwise 
procure federally funded abortions, carry their babies to term. 
One abortion advocacy group, the National Abortion and 
Reproductive Rights Action League (NARAL), has claimed that the 
effect of a denial of public funding on abortion reductions is 
even greater, around 50 percent. For example, a 2010 NARAL 
factsheet contains this statement:

        A study by the Guttmacher Institute shows that 
        Medicaid-eligible women in states that exclude abortion 
        coverage have abortion rates of about half of those of 
        women in states that fund abortion care.\6\
---------------------------------------------------------------------------
    \6\``Discriminatory Restrictions on Abortion Funding Threaten 
Women's Health,'' NARAL Pro-Choice America Foundation factsheet 
(January 1, 2010) (citing Rachel K. Jones et al., Patterns in the 
Socioeconomic Characteristics of Women Obtaining Abortions in 2000-
2001, Persp. on. Sexual & Reprod. Health 34 (2002)).

    Using a conservative 25 percent abortion-reduction figure, 
well over one million Americans are alive today because of the 
Hyde Amendment.\7\
---------------------------------------------------------------------------
    \7\See ``Whose Choice? How the Hyde Amendment Harms Poor Women,'' 
Center for Reproductive Rights, 2010, at 4, available at http://
reproductiverights.org/en/feature/whose-choice-download-report (stating 
that ``[b]ecause of the Hyde Amendment, more than a million women'' 
have not had abortions they may have had otherwise). See also The Heart 
of the Matter: Public Funding Of Abortion for Poor Women in the United 
States, by Heather D. Boonstra, Guttmacher Policy Review, Volume 10, 
Number 1 (Winter 2007) (``Studies published over the course of two 
decades looking at a number of states concluded that 18-35% of women 
who would have had an abortion continued their pregnancies after 
Medicaid funding was cut off.'').
---------------------------------------------------------------------------

                           H.R. 3 IS WORKABLE

    H.R. 3 will ensure that American taxpayers are not forced 
to be involved in funding what many consider to be the 
destruction of innocent human life through abortion on demand. 
The ``No Taxpayer Funding for Abortion Act'' will establish a 
government-wide statutory prohibition on funding abortion or 
insurance coverage that includes abortion. This comprehensive 
approach will reduce the need for the numerous separate 
abortion-funding policies and ensure that no program or agency 
is exempt from this important safeguard.
    This comprehensive approach is administratively workable, 
despite critics' claims. Insurers have been operating under the 
limits of the Hyde Amendment and the Hyde-companion policy that 
applies to the Federal Employee Health Benefits Program for 
decades. As CQ recently reported, ``Most people with employer-
sponsored insurance also must pay for abortions out of their 
own pocket. `Most insurers offer plans that include this 
coverage, but most employers choose not to offer it as part of 
their benefits package,' said Robert Zirkelbach, a spokesman 
for America's Health Insurance Plans, the insurance industry's 
trade association.''\8\
---------------------------------------------------------------------------
    \8\CQ Today (July 15, 2009).
---------------------------------------------------------------------------

            H.R. 3 CONTINUES LONG-STANDING FEDERAL POLICIES

    H.R. 3 will make permanent the policies that have 
previously been enacted on a case-by-case basis. Provisions 
that currently rely on regular re-approval include:

        1) Lthe Hyde amendment, which prohibits funding for 
        elective abortion coverage through any program funded 
        through the annual Labor, Health and Human Services 
        Appropriations Act;

        2) Lthe Smith FEHBP amendment, which prohibits funding 
        for health plans that include elective abortion 
        coverage for Federal employees;

        3) Lthe Dornan amendment, which prohibits use of 
        congressionally appropriated funds for abortion in the 
        District of Columbia; and

        4) Lother policies such as the restrictions on elective 
        abortion funding through the Peace Corps and Federal 
        prisons.

    H.R. 3 also codifies the Hyde-Weldon conscience clause that 
has been part of the Hyde Amendment since 2004. The conscience 
clause ensures that governmental recipients of Federal funding 
do not discriminate against health-care providers, including 
doctors, nurses and hospitals, because the providers do not 
provide, pay for, provide coverage for, or refer for abortions.

  THE PATIENT PROTECTION AND AFFORDABLE CARE ACT FAILS TO CONTAIN ANY 
      PROHIBITIONS ON THE USE OF TAXPAYER MONEY TO FUND ABORTIONS

    During the debate last Congress on the Patient Protection 
and Affordable Care Act (PPACA), Rep. Joe Pitts (R-PA) and 
former Rep. Bart Stupak (D-MI) offered an amendment that would 
have prohibited government funding of abortion had it been 
included in the version of the health-care reform that became 
law. The House-proposed health-care legislation, H.R. 3200, 
America's Affordable Health Choices Act, radically departed 
from the current Federal policy of not paying for elective 
abortion or subsidizing plans that cover abortion. However, at 
the last minute, the Democratic leadership permitted a vote on 
the Stupak/Pitts amendment, which passed by a vote of 240-194. 
The Senate then took up another bill (H.R. 3590) which did not 
include the Stupak/Pitts amendment. Instead it contained 
provisions designed to cloak the funding for abortion coverage. 
The Senate bill was signed into law as P.L. 111-148. The law is 
a drastic break from longstanding Federal policy. The Hyde 
Amendment has, for more than 30 years, prevented programs 
funded by the annual Health and Human Services Appropriations 
bill from financing abortion.
    The PPACA passed the House only after a handful of 
Democrats, led by former Rep. Stupak, who claimed to oppose the 
Senate bill's Federal funding of abortion, agreed to a deal in 
which the text of the Senate bill would not change, but the 
President would sign an executive order that would allegedly 
negate the text of the Senate bill. It is black-letter 
constitutional law, however, that executive order cannot trump 
the text of legislation enacted by Congress.
    In a recent interview with the Chicago Tribune editorial 
board, the President's former chief of staff, Rahm Emanuel, was 
asked questions about his commitment to the pro-abortion cause. 
Mr. Emanuel emphasized that Executive Order 13535, the 
Executive Order on abortion signed by President Obama in March 
2010, ostensibly to eliminate the need for the pro-life Stupak 
Amendment to be attached to PPACA, does not carry the force of 
law, and as such, was approved by former House Speaker Nancy 
Pelosi and others who oppose a ban on taxpayer funding of 
abortion. Mr. Emanuel said ``I came up with an idea for an 
executive order to allow the Stupak amendment not to exist in 
law.''\9\ Clearly, then, the substance of the Stupak amendment 
does not now exist in law, according to the person who served 
as the chief of staff to President Obama at the time. Therefore 
Congress needs to pass H.R. 3 to restore the long-standing ban 
on taxpayer funding of abortions in law.
---------------------------------------------------------------------------
    \9\Chicago Tribune mayoral debate video (January 14, 2011), 
available at http://www.wgntv.com/news/elections/mayor/editorial/(Pt. 
10).
---------------------------------------------------------------------------

                 FEDERAL FUNDING FOR ABORTION IN PPACA

    The PPACA subsidizes abortion in private health plans and 
can pay directly for abortion in new health programs.\10\ The 
funds under that law are directly appropriated, not subject to 
further appropriation through the HHS Appropriations bill, and 
are therefore not subject to the Hyde Amendment's abortion 
funding restriction.
---------------------------------------------------------------------------
    \10\For a chart of details of the various abortion funding 
provisions in PPACA, see http://downloads.frcaction.org/EF/EF10C08.pdf.
---------------------------------------------------------------------------
    Here are some examples:

         LPPACA appropriates $5 billion for high-risk 
        pool programs without a restriction on funding 
        abortion.\11\ The Pennsylvania, Maryland, and New 
        Mexico's high-risk pool plans approved by the Federal 
        Government did, in fact, contain coverage of elective 
        abortion. Only after the news of government-financed 
        abortions was reported in the press did the White House 
        tell these states to remove abortion from the list of 
        covered services.\12\
---------------------------------------------------------------------------
    \11\Patient Protection and Affordable Health Care Act (``PPACA''), 
H.R. 3590, became P.L. 111-148, Section 1101.
    \12\On July 14, 2010, HHS Spokesperson Jenny Backus issued a 
statement saying that abortion would not be covered in the high risk 
pool program in Pennsylvania. Then after other states approved abortion 
funding, Nancy-Ann DeParle on July 29, 2010 blogged that abortion would 
not be covered by the high risk pool program http://www.whitehouse.gov/
blog/2010/07/29/insurance-americans-with-pre-existing-conditions

         LPPACA also authorized funding for community 
        health centers,\13\ and the enactment of the Health 
        Care and Education Reconciliation Act\14\ a week later 
        increased the amount of funding for these community 
        health centers to over $9 billion. The money 
        appropriated for community health centers can be used 
        to pay for elective abortions directly, as these funds 
        are not appropriated under the HHS Appropriations bill 
        and therefore is not subject to the Hyde Amendment.\15\
---------------------------------------------------------------------------
    \13\PPACA Section 10503.
    \14\The Health Care and Education Reconciliation Act, 2010, H.R. 
4872, became P.L. 111-152 on March 30, 2010 (``Reconciliation Act'').
    \15\Reconciliation Act, Section 2303.

         LPPACA appropriates $6 billion for loans and 
        grants for the creation of non-profit health co-
        ops.\16\ Because the funds would not be appropriated by 
        the HHS Appropriations bill, they are not covered by 
        the Hyde Amendment and can be used to pay for elective 
        abortions.
---------------------------------------------------------------------------
    \16\PPACA, Section 1322.

         LPPACA provides tax credits for qualified 
        health plans in each of the state exchanges.\17\ 
        Section 1303, as amended, permits qualified health 
        plans to include coverage for elective abortions even 
        if they receive tax credits or cost-sharing 
        credits.\18\ This provision directly conflicts with the 
        principle of the Hyde Amendment and the restriction on 
        subsidizing health benefits plans that include abortion 
        through the Federal Employee Health Benefits Program 
        (FEHBP).\19\
---------------------------------------------------------------------------
    \17\PPACA, Section 1401 provides refundable tax credits and Section 
1402 provides cost-sharing credits to purchase health plans.
    \18\PPACA, Section 1303 as amended by Section 10104(c).
    \19\Section 613, Division C of the Consolidated Appropriations Act, 
2010 (P.L. 111-117).

         LSection 1303, as amended, also permits 
        private insurance plans that receive Federal subsidies 
        to cover elective abortions. If the issuer of the plan 
        chooses to cover elective abortions and receive Federal 
        subsidies, then every individual who is part of that 
        plan is required to pay an abortion surcharge and the 
        insurance company will take that surcharge payment and 
        hold it in a special account. This gimmick does nothing 
        to cure the problem: it still allows Federal dollars to 
        be used to subsidize abortion coverage, and the Federal 
        Government still requires Americans enrolling in these 
        federally subsidized health plans to pay for other 
---------------------------------------------------------------------------
        people's abortions.

         LSecretary of Health and Human Services 
        Kathleen Sebelius said on December 22, 2009 said that 
        ``everyone in the exchange would pay'' a ``portion of 
        their premium'' for ``abortion coverage.''\20\ (This 
        would not be the case for plans purchased without 
        abortion coverage.) The abortion surcharge is, 
        arguably, an even more egregious violation of the Hyde 
        Amendment principle.
---------------------------------------------------------------------------
    \20\See ``Sebelius Praises Abortion Accounting Trick in Senate 
Bill,'' Real Clear Politics Video (last modified December 22,2009) in 
which Secretary Sebelius states: ``That would be an accounting 
procedure, but everybody in the exchange would do the same thing, 
whether you're male or female, whether you're 75 or 25, you would all 
set aside a portion of your premium that would go into a fund, and it 
would not be earmarked for anything, it would be a separate account 
that everyone in the exchange would pay. . . . [I]t's really an 
accounting that would apply across the board and not just to women, and 
certainly not just to women who want 
to choose abortion coverage.'' http://www.realclearpolitics.com/video/
2009/12/22/sebelius_
praises_abortion_accounting_trick_in_senate_bill.html

         LThe PPACA also created a new government-
        controlled, multi-state plan to be run by the Director 
        of the Office of Personnel Management that can include 
        insurance plans with abortion coverage.\21\ This multi-
        state plan is similar to the FEHBP for Federal 
        employees and will be operated by the Federal 
        Government, but without the FEHBP restriction on 
        coverage of elective abortion.
---------------------------------------------------------------------------
    \21\PPACA, Section 1334 as amended by Section 10104(q).
---------------------------------------------------------------------------

     THE PPACA PROVIDES FOR ACTUAL ``FEDERAL FUNDING'' OF ABORTIONS

    The PPACA provides for actual ``federal funding'' of 
abortions. Under the PPACA, tens of millions of Americans will 
be eligible for Federal subsidies for private health plans, at 
a projected total cost of $435 billion over 7 years (from 2014 
through 2020). Without the enactment of H.R. 3, these Federal 
subsidies will be used to pay for plans that cover abortion on 
demand, in direct contradiction to the second principle of the 
Hyde Amendment, which prohibits the use of funds to pay for 
plans that cover elective abortion.
    Although this Federal assistance is called a ``credit,'' it 
is actually provided regardless of one's tax liability, so it 
is akin to an entitlement program. An August 2010 chart by the 
Congressional Budget Office evidences that 73% of the total 
cost for the premium-assistance credits will be through direct 
spending in excess of tax liability. In a separate publication, 
CBO explains: ``PPACA, as amended, establishes new exchanges 
for the purchase of health insurance and authorizes government 
subsidies for such purchases for individuals and families who 
meet income and other eligibility criteria. The subsidies for 
health insurance premiums are structured as refundable tax 
credits; the portions of such credits that exceed taxpayers' 
liabilities are classified as outlays, while the portions that 
reduce tax payments appear in the budget as reductions in 
revenues.''\22\
---------------------------------------------------------------------------
    \22\CBO, ``The Budget and Economic Outlook: Fiscal Years 2011 to 
2021, pp. 62-63 (January 2011).
---------------------------------------------------------------------------
    CBO projects that in year 2020, there will be $72.2 billion 
in direct spending in premium-credit outlays, and $27.2 in 
premium-credit revenue reductions. This means that 73% of the 
total premium-assistance dollars will be in excess of 
taxpayers' liabilities (72.2/99.4=73%).\23\
---------------------------------------------------------------------------
    \23\(When the projected $18.9 billion in direct spending on cost-
sharing subsidies (which are not a credit) is added to the $72.2 
billion in direct spending for premium credit outlays, the resulting 
$91.1 billion in direct spending equals 77% of the total dollars for 
Exchange subsidies (91.1/118.3=77%).
---------------------------------------------------------------------------
    Moreover, these subsidies are advancable, meaning that 
Federal monies will be sent by the Secretary of the Treasury on 
a monthly basis directly to the health insurer to pay for the 
subsidized plan, including plans that cover abortion on demand.
    The PPACA integrates the U.S. Government into the process 
of paying for health plans that cover abortion on demand. 
Opponents are fighting so hard against H.R. 3 because they have 
long opposed the Hyde Amendment's prohibition on Federal 
funding of abortion, as well as funding of plans that cover 
elective abortion. Now, opponents of H.R. 3 see the chance to 
get billions of taxpayer dollars to start flowing to health 
plans that cover abortion on demand. H.R. 3 will prevent that 
from happening.

                                Hearings

    The Judiciary Committee's Subcommittee on the Constitution 
held 1 day of hearings on H.R. 3, the ``No Taxpayer Funding for 
Abortion Act,'' on February 8, 2011. Testimony was received 
from: Richard M. Doerflinger, Associate Director of the 
Secretariat of Pro-Life Activities, United States Conference of 
Catholic Bishops; Sara Rosenbaum, Harold and Jane Hirsh 
Professor of Health Law and Policy and Chair of the Department 
of Health Policy, The George Washington University School of 
Public Health and Health Services; and Cathy Ruse, Senior 
Fellow for Legal Studies, the Family Research Council.

                        Committee Consideration

    On March 3, 2011, the Judiciary Committee met in open 
session and ordered the bill H.R. 3 favorably reported, with an 
amendment, by a rollcall vote of 23 to 14, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 3:
    1. An amendment offered by Mr. Conyers to treat the 
District of Columbia as a state for the purposes of the 
provisions of the bill. Defeated 13 to 18.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             13              18
----------------------------------------------------------------------------------------------------------------

    2. An amendment offered by Mr. Nadler to strike Section 303 
of the bill. Defeated 14 to 20.

                                                 ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................
Mr. Chabot......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             14              20
----------------------------------------------------------------------------------------------------------------

    3. An en bloc vote on (a) an amendment offered by Ms. 
Jackson Lee to provide a new Section 312 that states the bill 
shall not take effect unless the Attorney General certifies to 
Congress that it will not violate constitutionally guaranteed 
rights, and (b) an amendment offered by Ms. Jackson Lee to 
amend Section 309 to provide that the limitations in the bill 
will not apply where continuing the pregnancy could result in 
severe and long-lasting damage to a woman's health. Defeated 15 
to 19.

                                                 ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................
Mr. Chabot......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             15              19
----------------------------------------------------------------------------------------------------------------

    4. An amendment offered by Mr. Nadler to condition the 
effect of Section 303 on the President or his designee's 
decision as to whether any individual, small business, or 
employer taxes would be more than it would have been for such 
taxable years had Section 303 not been in effect. Defeated 14 
to 19.

                                                 ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................
Mr. Chabot......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             14              19
----------------------------------------------------------------------------------------------------------------

    5. An amendment offered by Mr. Nadler to provide that 
Section 303 does not apply with respect to any health benefit 
plan provided by or through an employer. Defeated 13 to 22.

                                                 ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................
Mr. Issa........................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................
Ms. Sanchez.....................................................              X
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             13              22
----------------------------------------------------------------------------------------------------------------

    6. An amendment offered by Mr. Nadler to provide that 
Section 303 does not apply with respect to a taxpayer who is 
self-employed. Defeated 13 to 22.

                                                 ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................
Mr. Issa........................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             13              22
----------------------------------------------------------------------------------------------------------------

    7. An amendment offered by Mr. Nadler to amend Section 311 
to provide protections for entities who provide, pay for, 
provide coverage of, or refer for abortions. Defeated 13 to 19.

                                                 ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................
Mr. Issa........................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             13              19
----------------------------------------------------------------------------------------------------------------

    8. An amendment offered by Mr. Johnson to amend Section 311 
to provide the bill shall not take effect unless the Attorney 
General submits a report to Congress setting forth the effect 
of the bill on women's access to abortion and health benefits 
coverage that includes coverage of abortion. Defeated 11 to 18.

                                                 ROLLCALL NO. 8
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             11              18
----------------------------------------------------------------------------------------------------------------

    9. An amendment offered by Mr. Johnson to amend Section 303 
to provide it does not apply in the case of a taxpayer who is 
an individual, except to the extent that such amount is paid or 
incurred in carrying on a trade or business. Defeated 14 to 19.

                                                 ROLLCALL NO. 9
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             14              19
----------------------------------------------------------------------------------------------------------------

    10. An amendment offered by Mr. Quigley to amend Section 
303 to apply only if the President or his designee submits to 
Congress written certification that this section will not 
affect the availability of abortion coverage offered by private 
health insurance issuers or group health plans for individuals 
who are not eligible for tax credits under title I of the 
Patient Protection and Affordable Care Act of 2010. Defeated 12 
to 21.

                                                 ROLLCALL NO. 10
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             12              21
----------------------------------------------------------------------------------------------------------------

    11. An amendment offered by Ms. Chu to add new Section 312 
that provides that nothing in the bill shall be construed to 
relieve any health care provider from providing emergency 
health care services as required by State or Federal law. 
Defeated 14 to 21.

                                                 ROLLCALL NO. 11
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             14              21
----------------------------------------------------------------------------------------------------------------

    12. An amendment offered by Ms. Wasserman Schultz to amend 
Section 303 to provide that subsection (a) does not apply with 
respect to a taxpayer who is a small business. Defeated 14 to 
22.

                                                 ROLLCALL NO. 12
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             14              22
----------------------------------------------------------------------------------------------------------------

    13. An amendment offered by Ms. Wasserman Schultz to amend 
Section 309 to exclude abortions in the case of a woman with 
cancer who needs a life saving treatment incompatible with 
continuing the pregnancy. Defeated 15 to 21.

                                                 ROLLCALL NO. 13
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Reed........................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
                                                                 -----------------------------------------------
    Total.......................................................             15              21
----------------------------------------------------------------------------------------------------------------

    14. To report H.R. 3 favorably. Passed 23 to 14.

                                                 ROLLCALL NO. 14
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................              X
Mr. Chabot......................................................              X
Mr. Issa........................................................              X
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Jordan......................................................
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................              X
Mr. Reed........................................................              X
Mr. Griffin.....................................................              X
Mr. Marino......................................................              X
Mr. Gowdy.......................................................              X
Mr. Ross........................................................              X
Ms. Adams.......................................................              X
Mr. Quayle......................................................              X
Mr. Conyers, Jr., Ranking Member................................                              X
Mr. Berman......................................................                              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................                              X
Mr. Deutch......................................................                              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             23              14
----------------------------------------------------------------------------------------------------------------

    An amendment offered by Ms. Chu to add new Section 312 to 
provide that the bill shall not restrict the ability of health 
care providers to provide full disclosure of all relevant 
information to patients making health care decisions or violate 
the principles of informed consent and the ethical standards of 
health care professionals was defeated by voice vote.
    A manager's amendment was adopted by voice vote.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 3, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 15, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3, the ``No 
Taxpayer Funding for Abortion Act.''
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 3--No Taxpayer Funding for Abortion Act.
    H.R. 3 would amend Title 1 of the United States Code to 
prohibit the use of Federal funds provided under Federal law to 
pay for abortion services or for any health plan that provides 
abortion services, except in cases of rape or incest, or when 
the life of the pregnant woman is in danger. The bill would 
prohibit any tax credit that results from amounts paid for 
abortion services or, under certain circumstances, the costs of 
a health benefits plan that includes coverage of abortion 
services. Further, it would not allow the costs of abortion 
services, other than under the excepted circumstances mentioned 
above, to count as a deductible medical expense in determining 
income tax liability. In addition, the bill would expand 
nondiscrimination rules for health care providers that decline 
to engage in abortion-related activities.
    Enacting H.R. 3 could affect direct spending or revenues; 
therefore, pay-as-you-go procedures apply. According to the 
staff of the Joint Committee on Taxation, the bill would have 
negligible effects on tax revenues. Similarly, CBO estimates 
that any effects on direct spending would be negligible for 
each year and over the 2011-2021 period.
    H.R. 3 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on State, local, or tribal governments.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 3 
prevents Federal taxpayer funds and other incentives from 
supporting abortion.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 3 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following describes each section in H.R. 3. A manager's 
amendment (an amendment in the nature of a substitute) was 
offered by Rep. Trent Franks and adopted by the committee, 
which makes several clarifying amendments to H.R. 3 which are 
also described below.
    Section 1. Provides the short title of the bill.
    Section 2. Contains the following provisions prohibiting 
taxpayer-funded abortions and providing conscience protections:

                              SECTION 301

    Section 301. Prohibits Federal funding for abortion.

                              SECTION 302

    Section 302. Prohibits funding for health benefits coverage 
that includes coverage of abortion.

                              SECTION 303

    Section 303. Clarifies, in Section 303(1), that the 
prohibition on abortion and abortion coverage subsidies applies 
to tax credits (a sum deducted from the total amount a taxpayer 
owes) and, in Sections 303(2) and 303(3), ensures that abortion 
is not incentivized through tax breaks in the form of itemized 
deductions or pre-tax health accounts, such as health savings 
accounts (HSAs), medical savings accounts (MSAs) or cafeteria 
plans (company benefit programs that allow employees to use 
pretax dollars to pay certain out-of-pocket expenses). Elective 
abortions are not health care, and they should not be treated 
as such by any Federal Government entity, including the I.R.S. 
Federal tax policy should not incentivize abortion.

                             SECTION 303(1)

    Section 303(1) provides that ``no credit shall be allowed 
under the internal revenue laws with respect to amounts paid or 
incurred for an abortion or with respect to amounts paid or 
incurred for a health benefits plan (including premium 
assistance) that includes coverage of abortion.''
    The Patient Protection and Affordable Health Care Act 
(``PPACA''), H.R. 3590, became P.L. 111-148. It is a radical 
expansion of government involvement in health care, and as such 
subsidies in the form of tax credits were included in the law 
to help individuals and small businesses purchase health 
insurance. These tax credits are a much more powerful incentive 
because they are far more valuable than a tax deduction. 
Whereas a tax deduction is a way to reduce your gross income 
before determiningthe tax you owe, a tax credit is applied to 
the actual amount of tax you owe. Had the Stupak-Pitts 
amendment been included in the law, those tax credits would 
have been prohibited from subsidizing insurance coverage that 
included elective abortions. But the Stupak-Pitts amendment was 
not enacted and instead PPACA contains provisions that result 
in the largest deviation from the principles of the Hyde 
Amendment in the 35 years since it was first enacted. Section 
303 prohibits abortion coverage subsidies in the form of tax 
credits and would also capture any other pre-existing tax 
credits for health insurance that have gone previously 
unnoticed and which are not covered by the Hyde Amendment. If 
there is any doubt that these tax credits are actually 
subsidies consider this. The CBO has indicated that by 2020 the 
Federal Government will spend $72.2 billion in direct premium 
credit outlays and $18.9 billion in direct spending for cost-
sharing subsidies.\24\
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    \24\Congressional Budget Office, CBO's August 2010 Baseline: Health 
Insurance Exchanges (August 25, 2010), available at http://www.cbo.gov/
budget/factsheets/2010d/ExchangesAugust
2010FactSheet.pdf
---------------------------------------------------------------------------
    Section 303(1) prevents tax credits for both abortion and 
abortion coverage, because tax credits like those in PPACA, are 
a dollar-for-dollar reduction in tax liability and are 
therefore a form of subsidy. Individual premium assistance is 
even paid when the individual has no tax liability at all. In 
fact, according to the CBO by 2020, 73% of premium assistance 
dollars made available under PPACA will be in the form of 
direct spending, meaning that 73% of the dollars made available 
as ``tax credits'' under PPACA law will actually be subsidies 
over and above tax liability.\25\ This is the case because the 
tax credits in PPACA are refundable, advancable tax credits 
that are paid directly to the insurance company.
---------------------------------------------------------------------------
    \25\Congressional Budget Office, CBO's August 2010 Baseline: Health 
Insurance Exchanges (August 25, 2010), available at http://www.cbo.gov/
budget/factsheets/2010d/ExchangesAugust
2010FactSheet.pdf
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    Section 303(1) prohibits small business owners from 
obtaining tax credits under PPACA for the cost of health care 
plans which cover abortion.\26\ Under H.R. 3, individuals and 
small businesses will be able to obtain tax credits on the 
purchase of health plans that do not include abortion coverage.
---------------------------------------------------------------------------
    \26\Patient Protection and Affordable Health Care Act (``PPACA''), 
H.R. 3590, became P.L. 111-148. PPACA, Section 1421, as amended by 
Section 10105(e), provides a small business tax credit for certain 
employers to cover up to 35% of the cost health care plans from 2010 
through 2013, and up to 50% of the cost of health plans after 2014 for 
two consecutive years.
---------------------------------------------------------------------------

                             SECTION 303(2)

    Section 303(2) provides that ``for purposes of determining 
any deduction for expenses paid for medical care of the 
taxpayer or the taxpayer's spouse or dependents, amounts paid 
or incurred for an abortion or for a health benefits plan that 
includes coverage of abortion shall not be taken into 
account.'' Tax deductions are amounts deducted from a person's 
taxable income. Individuals who spend more than 7.5% of their 
income on health costs are permitted to deduct those costs on 
their individual tax return. The threshold for this 
deductibility will soon increase to 10% under PPACA. Section 
303(2) applies to tax deductions for abortion. The Internal 
Revenue Code does not specify which expenses are eligible for 
deduction, yet the IRS has, without congressional 
authorization, listed ``abortion'' as a deductible medical 
expense in its official publication on medical expenses.\27\ 
Section 303(2) would correct this abortion subsidy and prevent 
deductions from an individual's tax return for abortions.
---------------------------------------------------------------------------
    \27\Section 213(d) of the I.R.S. code allows individuals who 
itemize to deduct medical expenses over 7.5% of their income, but does 
not specify what services can be deducted. IRS Publication 502 for 2010 
``Medical and Dental Expenses'' lists services which can be deducted 
and includes ``abortion.'' See page 5 (http://www.irs.gov/pub/irs-pdf/
p502.pdf).
---------------------------------------------------------------------------
    The manager's amendment struck the reference, in Section 
303(2), to ``or for a health benefits plan that includes 
coverage of abortion.'' The reason for that change is as 
follows. Section 303(2) deals with tax deductions which reduce 
a taxpayer's taxable income. The tax credits addressed in 
Section 303(1) are a much more powerful incentive because they 
are far more valuable than a tax deduction. Whereas a tax 
deduction is a way to reduce your gross income before figuring 
the tax you owe, a tax credit is applied to the actual amount 
of tax you owe. This change will ensure that tax deductions are 
not available for abortion, but will allow deductions for 
employer-sponsored plans that cover abortion.\28\
---------------------------------------------------------------------------
    \28\Because tax deductions are a much less powerful incentive than 
tax credits, and because determining tax deduction eligibility is much 
more complicated than determining tax credit eligibility, the manager's 
amendment only covers tax credit eligibility as regards overall health 
benefits plans that include abortion.
---------------------------------------------------------------------------

                             SECTION 303(3)

    Section 303(3) provides that ``in the case of any tax-
preferred trust or account the purpose of which is to pay 
medical expenses of the account beneficiary, any amount paid or 
distributed from such an account for an abortion shall be 
included in the gross income of such beneficiary.'' This 
section involves the various tax-preferred savings accounts for 
medical expenses. An individual's contributions to a tax-
preferred savings account sometimes are not included in 
adjusted gross income, are not always deducted on a tax return, 
and are often excluded from income by the employer. These tax-
preferred trusts or accounts include Health Savings Accounts 
(HSAs), Medical Savings Accounts (MSAs) and Flexible Spending 
Arrangements (FSAs) and other tax-favored health plans.\29\ 
Currently, I.R.S. Publication 969 specifies that qualified 
medical expenses for these accounts include any deductable 
medical expense listed in Publication 502, which lists 
abortion, and so abortions are currently tax-preferred medical 
expenses. If elective abortion is not health care, the I.R.S. 
should not be giving tax-preferred status to the procedure and 
Section 303(3) appropriately excludes abortion as a qualified 
medical expense.
---------------------------------------------------------------------------
    \29\See IRS Publication 969 for 2010 ``Health Savings Accounts and 
Other Tax-Favored Health Plans,'' at 8 (http://www.irs.gov/pub/irs-pdf/
p969.pdf).
---------------------------------------------------------------------------
    In sum, H.R. 3 prohibits the use of tax credits for 
abortion or abortion coverage. It also prohibits individuals 
from deducting the costs of abortion on their individual tax 
returns. Finally, it prohibits the use of tax-preferred trusts 
like flexible spending accounts (systems in which certain types 
of expenses are not included in payroll or other taxes) and 
health savings accounts (in which funds contributed to an 
account are not subject to Federal income tax) to get a tax-
free abortion.
    H.R. 3 does not affect the tax treatment of employer-
sponsored health insurance coverage as is permitted through the 
general employer deduction and the employee exclusion. Employee 
contributions to their premiums are taken out of their paycheck 
as a pretax exclusion called the employer exclusion. Exclusions 
for premiums are not addressed in H.R. 3. Employer-sponsored 
plans consist of insurance provided by an employer in one of 
two ways. One way allows the individual to exclude the cost of 
premiums (either paid by themselves or by their employer) from 
their gross income.\30\ This is a pre-tax benefit excluded from 
income called the ``employee exclusion.'' H.R. 3 does not 
affect exclusions for the cost of premiums. The second way 
comes through the employer's general deduction which includes 
deducting any costs associated with compensating employees. 
Such deductions allow employers to deduct the cost of their 
contributions to an employee's health insurance plan as a 
business expense. Since Section 303(2) only ever applied to 
deductions for expenses of taxpayers and their dependants, it 
never captured employer deductions because those would not be 
deductions for expenses of the taxpayer. However, with the 
removal of the phrase ``health benefits plan that includes 
coverage of abortion,'' Section 303(2) no longer addresses any 
kind of deduction for the cost of health plans that include 
abortion.
---------------------------------------------------------------------------
    \30\The ``employer tax deduction'' found in IRS Code 162(a) allows 
employers to write off the cost of their contribution to their 
employees' health plans as well as other business expenses. The 
``employee tax exclusion'' found in IRS Code 106(a) allows employees to 
exclude from taxable income the amount their employer contributes to 
their health care premiums.
---------------------------------------------------------------------------
    Taken together, Sections 301, 302, and 303 of H.R. 3 will 
stop government funding of abortions under PPACA, will prevent 
tax credits for premiums paid to health plans that cover 
abortions, and will prevent abortion from being given tax 
preferred status. Direct payments for abortions under the high 
risk pool program\31\ and in the community health centers will 
be prohibited, and tax credits will not be given to subsidize 
health plans with abortion coverage whether in private plans in 
the state exchanges, in plans created under the co-op program, 
or in the multi-state plan run by the government. These 
Sections will also make permanent policies currently in place, 
such as the Hyde amendment.
---------------------------------------------------------------------------
    \31\Section 1101 of PPACA provides for the establishment of a 
temporary high-risk insurance pool program for specified individuals 
with preexisting conditions between the date on which the program is 
established and January 1, 2014.
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                              SECTION 304

    Section 304. Prohibits abortion in Federal health 
facilities (such as Department of Defense, Indian Health, and 
Veterans Affairs hospitals) and ensures abortion is not 
included in the services provided by individuals as a part of 
their employment by the Federal Government. Under current law 
these facilities do not provided abortions except in the cases 
of rape, incest or to save the life of the mother. Section 304 
codifies that policy.

                              SECTION 305

    Section 305. Clarifies that the bill does not prohibit 
individuals, entities, States or localities from purchasing 
separate privately funded coverage that includes abortion.\32\ 
However, such coverage must be purchased using non-federal 
funds and may not be purchased using matching funds required 
for a federally subsidized program. For example, States may 
provide abortion coverage to Medicaid participants, but may not 
do so using Federal funds or State Medicaid matching funds, as 
is the case under the Hyde Amendment today.
---------------------------------------------------------------------------
    \32\Much of the mechanics of how health insurance will work under 
PPACA will be worked out by Federal regulations and each state's unique 
arrangements, but what follows is a typical example of how this 
provision would work. A subsidy eligible individual goes to a health 
exchange and chooses a plan that costs $300 a month for the premium. If 
the plan does not include abortion they can use their subsidy of $200 
(paid to the insurance company directly by the government), but they 
are only covered if they also pay their share of the premium. In this 
hypothetical, that's $100 a month. If they say ``no, I want the version 
of the plan with abortion coverage,'' then they don't get the subsidy 
(that is, the insurance company won't be able to get the $200 a month 
from the government) and have to pay the full $300 themselves. Or, they 
can take the subsidy for a non-abortion plan and only pay the $100, 
with the government paying $200 a month, and then separately buy 
another policy to cover abortion from the same company or from another 
company. This option would be buying an abortion rider much like buying 
dental or vision insurance separate from your health insurance. If 
someone buys the abortion rider, they then pay the additional cost of 
the rider separately. Individual subsidies may also vary based on 
income level. If someone takes any subsidy, they have to go with a non-
abortion plan and none of their premium share can be used for abortion.
---------------------------------------------------------------------------

                              SECTION 306

    Section 306. Clarifies that non-federal health insurance 
providers may sell abortion coverage consistent with the 
policies described in Section 305. Section 306 provides that 
``Nothing in this chapter shall be construed as restricting the 
ability of any non-Federal health benefits coverage provider 
from offering abortion coverage, or the ability of a State or 
locality to contract separately with such a provider for such 
coverage, so long as only funds not authorized or appropriated 
by Federal law are used and such coverage shall not be 
purchased using matching funds required for a federally 
subsidized program, including a State's or locality's 
contribution of Medicaid matching funds.'' Section 306 makes 
clear that the insurance industry may continue to provide 
abortion coverage to those who purchase such coverage using 
their own private money.

                              SECTION 307

    Section 307. Clarifies that the bill preserves any stronger 
abortion funding restrictions in existing law.

                              SECTION 308

    Section 308. Clarifies that neither the bill nor any other 
Federal law shall be used as a basis to require any State or 
local government to provide or pay for abortion or abortion 
coverage.
    The manager's amendment strikes this section and replaces 
it with another (described below). The manager's amendment 
strikes this language because this provision is not included in 
the current Hyde Amendment, and is seen as unnecessary in that 
amendment. Like H.R. 3, the Hyde Amendment's effect on Federal 
funding of abortion is to prohibit such funding; if it allows 
(that is, fails to prohibit) funding of abortion in certain 
rare cases, the issue of whether a state government or other 
entity may have to provide funds for such an abortion is 
determined by other laws.
    The manager's amendment replaces section 308 with a new 
section that states:

        SEC. 308. CONSTRUCTION RELATING TO COMPLICATIONS 
        ARISING FROM ABORTION. Nothing in this chapter shall be 
        construed to apply to the treatment of any infection, 
        injury, disease, or disorder that has been caused by or 
        exacerbated by the performance of an abortion. This 
        rule of construction shall be applicable without regard 
        to whether the abortion was performed in accord with 
        Federal or state law, and without regard to whether 
        funding for the abortion is permissible under section 
        309 of this Act.

    The manager's amendment adds a Section 308 to explain that 
H.R. 3's restrictions on the use of Federal funds and tax 
incentives for abortion do not apply to the treatment of 
complications from abortion, regardless of whether the abortion 
itself was illegal or ineligible for Federal funds. This 
section is added because opponents of H.R. 3 have tried to 
argue that the provisions in H.R. 3 would allow insurance 
companies to refuse to provide treatment for post-abortion 
complications. The Hyde Amendment and other Federal laws 
regarding abortion funding have never prevented funding for 
complications from an abortion. The performance of abortions is 
clearly separate from the treatment of injuries resulting from 
the performance of an abortion. The Hyde Amendment and other 
longstanding restrictions on Federal funding of abortion have 
not included this explicit rule of construction in the past, 
because no case has been raised to indicate any problem of lack 
of clarity in applying these laws. However, the distinction has 
sometimes been explicit in foreign assistance applications.\33\
---------------------------------------------------------------------------
    \33\For example, President Bush's 2001 memorandum reinstating the 
``Mexico City Policy'' (a policy against disbursing population 
assistance funds to non-governmental organizations that perform or 
promote abortion in foreign countries) explicitly excluded from the 
definition of abortion ``the treatment of injuries or illnesses caused 
by legal or illegal abortions, for example, post-abortion care'' 
(Presidential Memorandum of March 28, 2001, ``Restoration of the Mexico 
City Policy,'' 66 Fed. Reg. 17301-13 (March 29, 2001) at 17306 and 
17311). The additional clarification in the manager's amendment's 
Section 308 requires no change from the current understanding of 
abortion limitations in domestic or foreign policy.
---------------------------------------------------------------------------
    Moreover, while the Hyde Amendment has been in place, 
nothing has prevented Medicaid from covering services for 
complications following an abortion. The ``State Medicaid 
Manual,'' which is the official guidance provided to states by 
HHS, addresses this point explicitly. The manual, in Chapter 4, 
says explicitly that Federal financial reimbursement is also 
``available for the costs of certain specific services 
associated with a non-Federally funded abortion,'' including 
``charges for all services, tests and procedures performed 
post-abortion for complications of a non-Federally funded 
therapeutic abortion.''\34\
---------------------------------------------------------------------------
    \34\From 4432 Federal Funding of Abortion Related Services, within 
Chapter 4 of the State Medicaid Manual, which can be found at this 
link: http://www.cms.gov/Manuals/PBM/item
detail.asp?filterType=none&filterByDID=-
99&sortByDID=1&sortOrder=ascending&itemID=CMS021927&intNumPerPage=10
---------------------------------------------------------------------------

                              SECTION 309

    Section 309. Establishes an exception to the prohibitions 
on abortion funding for cases of rape and incest, and when 
necessary to save the life of the mother.\35\
---------------------------------------------------------------------------
    \35\The Hyde Amendment does not contain a broader exception for the 
``health'' of the mother. Such an exception would be easily abused on 
the grounds that a federally-funded abortion is deemed necessary to 
prevent the mother's ``emotional distress.'' A general ``health'' 
exception would consequently be bad policy, and the Supreme Court has 
not required such an exception. The Supreme Court upheld the Hyde 
Amendment of Fiscal Year 1977, which allowed Federal abortion funding 
only in cases of danger to the life of the mother. See Harris v. McRae, 
448 U.S. 297 (1980). Consequently, there is no constitutional 
requirement that the Federal Government extend exceptions beyond the 
life of the mother.
---------------------------------------------------------------------------
    The manager's amendment will revert this section to the 
language used in the Hyde Amendment, namely through references 
to pregnancies that are ``the result of an act of rape or 
incest.'' The references to ``pregnant female'' in Section 
309(2) are also changed to ``woman,'' consistent with the 
terminology used in the current Hyde Amendment.
    Reverting to the original Hyde Amendment language should 
not change longstanding policy. H.R. 3, with the Hyde Amendment 
language, will still appropriately not allow the Federal 
Government to subsidize abortions in cases of statutory rape. 
The Hyde Amendment has not been construed to permit Federal 
funding of abortion based solely on the youth of the mother, 
nor has the Federal funding of abortions in such cases ever 
been the practice.

                              SECTION 310

    Section 310. Clarifies that the term ``funds appropriated 
by Federal law'' includes funds appropriated by Congress for 
the District of Columbia, and that standards set for the 
Federal Government include the government of the District of 
Columbia. Because H.R. 3 codifies the Hyde Amendment principle 
as a matter of Federal law, it will affect funding in the 
District of Columbia. Article 1 of the Constitution grants 
Congress control over all District legislation, including 
funding. Last year the Omnibus Appropriations Act\36\ which 
allocates funds to the District removed the provision 
restricting the funding of elective abortions, a provision 
which had been renewed each year since 1996. Section 814 of 
Division C changed this provision to prevent only ``Federal'' 
funds from being used for abortion, which is a bogus 
distinction since all funds received and spent by the District 
are appropriated by Congress. H.R. 3 would restore the 
prohibition on taxpayer funding for elective abortion in 
Washington, D.C.
---------------------------------------------------------------------------
    \36\Section 814 of Division C of The Consolidated Appropriations 
Act, 2010 (P.L. 111-117).
---------------------------------------------------------------------------

                              SECTION 311

    Section 311. Ensures that the Federal Government, and any 
State or local government that receives Federal funds, may not 
discriminate against any individual or institutional health 
care entity on the basis that the entity does not provide, pay 
for, provide coverage of, or refer for abortions.
    H.R. 3 makes permanent the conscience protection language 
found in the Hyde-Weldon Amendment renewed each year in the 
Labor-HHS appropriations bill, and applies this 
nondiscrimination policy to other departments and agencies of 
the Federal Government, as well as state and local governments 
that receive Federal funds from these departments and agencies.
    Since PPACA appropriates funds directly, bypassing the 
Labor-HHS bill, these funds are not bound by the Hyde-Weldon 
conscience protections. Moreover, PPACA included a weaker 
nondiscrimination provision which only prevents health 
``plans'' in the exchanges from discriminating against 
``providers'' or ``facilities'' unwilling to participate in 
abortion. It does not prevent the Federal Government, or state 
or local governments, from committing such discrimination. H.R. 
3 would codify the Hyde-Weldon provision, restoring conscience 
protections for health care workers to the status quo.
    Section 311 forbids government from discriminating against 
any health care entity based on its declining to provide, pay 
for, provide coverage of, or refer for abortions. Thus the 
government may not penalize, deny a benefit or status to, or 
deny participation in public benefits programs to health care 
entities on this basis, whether the law or policy asserted by 
the government as a justification specifically targets such 
entities or is a law of general applicability.
    In three respects Section 311 clarifies or improves the 
language of the Hyde-Weldon amendment.
    First, it clarifies that this policy governs a state or 
local government that receives Federal financial assistance 
``either directly or indirectly.'' Thus, for example, a local 
governmental entity that has received Federal funds to help 
implement health care reform legislation is covered by the 
policy, even if those funds were channeled to the local 
government through a state agency. Likewise, if a state 
government receives Federal financial assistance, an agency of 
that state government is covered by the policy regardless of 
whether that particular agency is itself a direct recipient of 
Federal funds.
    Second, Section 311 provides for a private right of action 
so that health care entities may directly file suit in Federal 
court if their rights under this Section have been or are 
threatened to be violated. This right of action belongs to any 
health care entity that has standing under the general rules of 
standing under Article III of the Constitution. This would 
certainly include the entity whose rights are threatened, and 
can also include an association of health care entities when 
one or more of its members are threatened by a violation of the 
law.\37\ This right of private action, and the process 
discussed below for filing complaints with HHS for actual or 
threatened violations of Section 311, are set forth as 
concurrent and independent avenues for enforcement. Section 311 
does not require, and should not be construed to require, that 
an administrative complaint must be filed, or that an 
investigation must be either initiated or concluded, before 
suit may be filed in Federal court.
---------------------------------------------------------------------------
    \37\See United Food & Commercial Workers Union v. Brown Group, 517 
U.S. 544, 555-56 (1996).
---------------------------------------------------------------------------
    Third, Section 311 designates the Office for Civil Rights 
of the Department of Health and Human Services (HHS) to receive 
complaints under this section. This designation parallels the 
regulation recently issued by HHS regarding enforcement of 
Federal conscience laws, including the Hyde-Weldon 
Amendment.\38\ Because Section 311 applies to Federal agencies 
and programs in addition to HHS, it instructs the HHS Office 
for Civil Rights to investigate complaints or refer them to the 
other agency or program, as appropriate.
---------------------------------------------------------------------------
    \38\See Department of Health and Human Services, ``Regulation for 
the Enforcement of Federal Health Care Provider Conscience Protection 
Laws,'' 76 Fed. Reg. 9968-77 (February 23, 2011).
---------------------------------------------------------------------------
    In an April 2009 survey by The Polling Company, Inc., 87% 
of American adults believed it is important (and 65% saw it as 
very important) to ``make sure that healthcare professionals in 
America are not forced to participate in procedures and 
practices to which they have moral objections.''\39\
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    \39\On the April 2009 survey, see www.freedom2care.org/docLib/
200905011_Pollingsummary
handout.pdf.
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                              SECTION 312

    Section 312. Defines the term health benefits coverage.
    The manager's amendment strikes this definition, as it 
could prove overly restrictive and exclude from coverage other 
forms of health benefits coverage that may be created under 
PPACA and other Federal legislation.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                      TITLE 1, UNITED STATES CODE

                      TITLE 1--GENERAL PROVISIONS

Chap.                                                               Sec.
      Rules of construction............................................1
     * * * * * * *
      Prohibiting taxpayer funded abortions and providing for conscience 
        protections..................................................301
     * * * * * * *

  CHAPTER 4--PROHIBITING TAXPAYER FUNDED ABORTIONS AND PROVIDING FOR 
                         CONSCIENCE PROTECTIONS

Sec.
301. Prohibition on funding for abortions.
302. Prohibition on funding for health benefits plans that cover 
          abortion.
303. Prohibition on tax benefits relating to abortion.
304. Limitation on Federal facilities and employees.
305. Construction relating to separate coverage.
306. Construction relating to the use of non-Federal funds for health 
          coverage.
307. Non-preemption of other Federal laws.
308. Construction relating to complications arising from abortion.
309. Treatment of abortions related to rape, incest, or preserving the 
          life of the mother.
310. Application to District of Columbia.
311. No government discrimination against certain health care entities.

Sec. 301. Prohibition on funding for abortions

    No funds authorized or appropriated by Federal law, and 
none of the funds in any trust fund to which funds are 
authorized or appropriated by Federal law, shall be expended 
for any abortion.

Sec. 302. Prohibition on funding for health benefits plans that cover 
                    abortion

    None of the funds authorized or appropriated by Federal 
law, and none of the funds in any trust fund to which funds are 
authorized or appropriated by Federal law, shall be expended 
for health benefits coverage that includes coverage of 
abortion.

Sec. 303. Prohibition on tax benefits relating to abortion

    For taxable years beginning after the date of the enactment 
of this section--
            (1) no credit shall be allowed under the internal 
        revenue laws with respect to amounts paid or incurred 
        for an abortion or with respect to amounts paid or 
        incurred for a health benefits plan (including premium 
        assistance) that includes coverage of abortion,
            (2) for purposes of determining any deduction for 
        expenses paid for medical care of the taxpayer or the 
        taxpayer's spouse or dependents, amounts paid or 
        incurred for an abortion shall not be taken into 
        account, and
            (3) in the case of any tax-preferred trust or 
        account the purpose of which is to pay medical expenses 
        of the account beneficiary, any amount paid or 
        distributed from such an account for an abortion shall 
        be included in the gross income of such beneficiary.

Sec. 304. Limitation on Federal facilities and employees

    No health care service furnished--
            (1) by or in a health care facility owned or 
        operated by the Federal Government; or
            (2) by any physician or other individual employed 
        by the Federal Government to provide health care 
        services within the scope of the physician's or 
        individual's employment,
may include abortion.

Sec. 305. Construction relating to separate coverage

    Nothing in this chapter shall be construed as prohibiting 
any individual, entity, or State or locality from purchasing 
separate abortion coverage or health benefits coverage that 
includes abortion so long as such coverage is paid for entirely 
using only funds not authorized or appropriated by Federal law 
and such coverage shall not be purchased using matching funds 
required for a federally subsidized program, including a 
State's or locality's contribution of Medicaid matching funds.

Sec. 306. Construction relating to the use of non-Federal funds for 
                    health coverage

    Nothing in this chapter shall be construed as restricting 
the ability of any non-Federal health benefits coverage 
provider from offering abortion coverage, or the ability of a 
State or locality to contract separately with such a provider 
for such coverage, so long as only funds not authorized or 
appropriated by Federal law are used and such coverage shall 
not be purchased using matching funds required for a federally 
subsidized program, including a State's or locality's 
contribution of Medicaid matching funds.

Sec. 307. Non-preemption of other Federal laws

    Nothing in this chapter shall repeal, amend, or have any 
effect on any other Federal law to the extent such law imposes 
any limitation on the use of funds for abortion or for health 
benefits coverage that includes coverage of abortion, beyond 
the limitations set forth in this chapter.    

Sec. 308. Construction relating to complications arising from abortion

    Nothing in this chapter shall be construed to apply to the 
treatment of any infection, injury, disease, or disorder that 
has been caused by or exacerbated by the performance of an 
abortion. This rule of construction shall be applicable without 
regard to whether the abortion was performed in accord with 
Federal or State law, and without regard to whether funding for 
the abortion is permissible under section 309 of this Act.

Sec. 309. Treatment of abortions related to rape, incest, or preserving 
                    the life of the mother

    The limitations established in sections 301, 302, 303, and 
304 shall not apply to an abortion--
            (1) if the pregnancy is the result of an act of 
        rape or incest; or
            (2) in the case where a woman suffers from a 
        physical disorder, physical injury, or physical illness 
        that would, as certified by a physician, place the 
        woman in danger of death unless an abortion is 
        performed, including a life-endangering physical 
        condition caused by or arising from the pregnancy 
        itself.

Sec. 310. Application to District of Columbia

    In this chapter:
            (1) Any reference to funds appropriated by Federal 
        law shall be treated as including any amounts within 
        the budget of the District of Columbia that have been 
        approved by Act of Congress pursuant to section 446 of 
        the District of Columbia Home Rule Act (or any 
        applicable successor Federal law).
            (2) The term ``Federal Government'' includes the 
        government of the District of Columbia.

Sec. 311. No government discrimination against certain health care 
                    entities

    (a) Nondiscrimination.--A Federal agency or program, and 
any State or local government that receives Federal financial 
assistance (either directly or indirectly), may not subject any 
individual or institutional health care entity to 
discrimination on the basis that the health care entity does 
not provide, pay for, provide coverage of, or refer for 
abortions.
    (b) Health Care Entity Defined.--For purposes of this 
section, the term ``health care entity'' includes an individual 
physician or other health care professional, a hospital, a 
provider-sponsored organization, a health maintenance 
organization, a health insurance plan, or any other kind of 
health care facility, organization, or plan.
    (c) Remedies.--
            (1) In general.--The courts of the United States 
        shall have jurisdiction to prevent and redress actual 
        or threatened violations of this section by issuing any 
        form of legal or equitable relief, including--
                    (A) injunctions prohibiting conduct that 
                violates this section; and
                    (B) orders preventing the disbursement of 
                all or a portion of Federal financial 
                assistance to a State or local government, or 
                to a specific offending agency or program of a 
                State or local government, until such time as 
                the conduct prohibited by this section has 
                ceased.
            (2) Commencement of action.--An action under this 
        subsection may be instituted by--
                    (A) any health care entity that has 
                standing to complain of an actual or threatened 
                violation of this section; or
                    (B) the Attorney General of the United 
                States.
    (d) Administration.--The Secretary of Health and Human 
Services shall designate the Director of the Office for Civil 
Rights of the Department of Health and Human Services--
            (1) to receive complaints alleging a violation of 
        this section;
            (2) subject to paragraph (3), to pursue the 
        investigation of such complaints in coordination with 
        the Attorney General; and
            (3) in the case of a complaint related to a Federal 
        agency (other than with respect to the Department of 
        Health and Human Services) or program administered 
        through such other agency or any State or local 
        government receiving Federal financial assistance 
        through such other agency, to refer the complaint to 
        the appropriate office of such other agency.

                            Dissenting Views

    Congress has prohibited the use of Federal funds for 
abortion for more than three decades, and H.R. 3 is not needed 
to achieve what has already been accomplished. Contrary to the 
claims of its sponsors, H.R. 3 is not a ``just and widely 
supported common sense approach'' to Federal funding\1\ but an 
aggressive assault on women's health and the constitutionally 
protected right to decide whether to carry a pregnancy to term. 
If enacted, H.R. 3 would burden that right in a variety of ways 
that have nothing to do with Federal funds. H.R. 3 is not just, 
it is not common sense, and we adamantly oppose it.
---------------------------------------------------------------------------
    \1\No Taxpayer Funding for Abortion Act: Markup of H.R. 3 Before 
the H. Comm. on Judiciary, 112th Cong. 12 (2011) [hereinafter ``Markup 
Transcript''] (opening statement of Rep. Trent Franks), available at 
http://judiciary.house.gov/hearings/mark_03022011.html.
---------------------------------------------------------------------------
    H.R. 3 is far more ambitious than a mere codification of 
existing law. As originally introduced, it would have narrowed 
already inadequate exceptions that allow funding for abortion 
in cases of rape or incest by further limiting these hard-
fought protections to cases of ``forcible rape'' and incest 
only when the victim is a minor. These cutbacks to existing law 
were not an oversight. As explained by a witness invited to 
testify by the Majority at the hearing on H.R. 3 held in the 
Constitution Subcommittee, these changes were intended to 
target and narrow protection for teenage girls.\2\ In response 
to public outcry and anger, and perhaps realizing that this 
particular overreach might cost passage of the bill, 
Representative Trent Franks removed these limitations through a 
manager's amendment offered at the Committee markup. H.R. 3's 
sponsors may have retreated on this particular issue for now, 
but they remain steadfast in their overarching goal.
---------------------------------------------------------------------------
    \2\No Taxpayer Funding for Abortion Act: Hearing Before the 
Subcomm. on Constitution of the H. Comm. on the Judiciary, 112th Cong. 
(2011) [hereinafter ``Constitution Subcomm. Hearing''] (oral testimony 
of Richard M. Doerflinger, unofficial transcript).
---------------------------------------------------------------------------
    The goal of H.R. 3 is to make abortion completely 
unavailable even when paid for with purely private, non-Federal 
funds. H.R. 3 does this by, among other things, imposing an 
unprecedented tax penalty on individuals and businesses who use 
their own money to pay for abortion or to purchase insurance 
that would cover abortion. To the extent that individuals and 
businesses seek to avoid H.R. 3's penalty on insurance by 
purchasing insurance that excludes abortion coverage, any 
resulting costs for abortion-related medical care will be borne 
entirely by women and their families out-of-pocket. This is not 
codification of existing law, nor is it just another attempt to 
enact the approach taken in the Stupak/Pitts Amendment to the 
House-passed Affordable Health Care for America Act.\3\ H.R. 3 
is a radical departure from current tax treatment of medical 
expenses and insurance coverage; and it is not justifiable nor 
necessary to prevent Federal funding of abortion.
---------------------------------------------------------------------------
    \3\H.R. 3962, 111th Cong., Sec. 265 (as passed by House, Nov. 7, 
2009).
---------------------------------------------------------------------------
    H.R. 3 changes existing law in other ways that will further 
harm women's health and place their lives at risk. For example, 
as interpreted by its key sponsors, section 311 of the bill 
would elevate a broad right to refuse to provide abortion-
related care above the fundamental obligation to provide life-
saving care. Current law is clear: no one has the right to 
refuse to provide emergency care, even if that requires 
performance of abortion. Rather than adhere to well-established 
law in this regard, H.R. 3 seeks to upset it, while 
simultaneously creating new and special rights for those who 
refuse to provide abortion-related care.
    H.R. 3 also seeks to extend funding restrictions that are 
limited in time and scope and apply them to all Federal laws, 
without any effort to determine how such a sweeping and 
permanent expansion would impact American women and their 
families.

                      I. OVERVIEW OF H.R. 3, THE 
                ``NO TAXPAYER FUNDING FOR ABORTION ACT''

    H.R. 3 seeks to amend Title I of the U.S. Code to add new 
sections to Federal law, some of which have no corollary in 
existing law. Section 303 of the bill, for example, seeks to 
impose an unprecedented tax penalty on the use of purely 
private funds for abortion. Other sections are similar--but not 
identical to--restrictions that have been placed on Federal 
funding through various amendments to annual appropriations 
bills. The impact of these modified provisions on women and 
their families is unclear, yet H.R. 3 nonetheless seeks to make 
these restrictions permanent, and applicable to all Federal 
laws, as outlined below.
    Sections 301 and 302 would impose a permanent, blanket 
restriction on funding. Sections 301 and 302 are modeled on the 
Hyde Amendment. First enacted in 1976, the Hyde Amendment 
prohibits the use of funds appropriated in particular laws 
(e.g., annual appropriations for the Department of Health and 
Human Services) from being used for abortion.\4\ But unlike the 
Hyde Amendment, sections 301 and 302 would never expire and 
would apply to all Federal funds, not just funds specifically 
appropriated for a particular agency or purpose.
---------------------------------------------------------------------------
    \4\See, e.g., P.L. 111-117, div. D, tit. II, Sec. 507(a), 123 Stat. 
3034, 3280 (2009) (``None of the Federal funds appropriated in this 
Act, and none of the funds in any trust fund to which funds are 
appropriated in this Act, shall be expended for any abortion.'').
---------------------------------------------------------------------------
    Section 303 would impose an unprecedented tax penalty on 
private funding for abortion and for insurance coverage that 
includes abortion. As described more fully below, section 303 
imposes a tax on the use of private funds to pay for abortion 
or for the purchase of insurance that covers abortion in many 
circumstances. Section 303 has no corollary in existing law and 
represents a novel, untested use of the Internal Revenue Code 
to penalize a lawful and constitutionally protected health care 
choice. To the extent individuals and businesses seek to avoid 
section's 303's insurance penalty by purchasing insurance that 
excludes abortion, women and their families will bear the costs 
of any abortion-related medical care out-of-pocket.
    Section 304 would ban abortion services in Federal health 
care facilities or by any Federal employee. Section 304 imposes 
a sweeping prohibition on the inclusion of abortion as part of 
any health care service furnished in a health care facility 
``owned or operated'' by the Federal government or by any 
Federal employee. Congress previously has prohibited abortion 
services in prisons (though requiring transportation from 
prison when necessary)\5\ and in Department of Defense 
facilities,\6\ but H.R. 3 now seeks to impose this ban on all 
Federal facilities and all Federal employees. The ban would not 
apply in cases of rape, incest, or where the woman's life is in 
danger (by virtue of Section 309).
---------------------------------------------------------------------------
    \5\See, e.g., P.L. 111-117, div. B, tit. II, Sec. Sec. 203-04, 123 
Stat. 3034, 3139 (2009).
    \6\See, e.g., 18 U.S.C. Sec. 1093(b) (prohibiting the performance 
of abortions in Department of Defense facilities).
---------------------------------------------------------------------------
    Section 305 would narrow the Hyde Amendment's broad right 
to use non-Federal funds. The Hyde Amendment recognizes and 
preserves a broad right to use private funds, without 
specifying or limiting items that may be purchased with those 
funds.\7\ Rather than mirroring this language exactly, section 
305 protects only the purchase of ``separate abortion coverage 
or health benefits coverage that includes abortion'' with non-
Federal funds. The impact of limiting a broad, unspecified 
right is unclear but notably places the use of funds for 
abortion (as compared to funds used to pay for insurance 
coverage) at risk, particularly when coupled with section 303's 
unprecedented tax penalties on private payments for abortion. 
As described more fully below, those penalties may make the 
right allegedly protected by section 305 purely symbolic for 
many women and their families.
---------------------------------------------------------------------------
    \7\See, e.g., P.L. 111-117, div. D, tit. II, Sec. 508(b), 123 Stat. 
3034, 3280 (2009) (``Nothing in the preceding section shall be 
construed as prohibiting the expenditure by a State, locality, entity, 
or private person of State, local, or private funds (other than a 
State's or locality's contribution of Medicaid matching funds).'').
---------------------------------------------------------------------------
    Section 306 would alter Hyde Amendment protections for 
providers who offer abortion coverage. The Hyde Amendment 
broadly preserves the right for ``any'' managed care provider 
to offer abortion coverage,\8\ while section 306 protects only 
the right of a ``non-Federal'' health benefits plan provider to 
offer coverage that includes abortion. It is not clear who 
might fall in or outside this category, and whether any insurer 
who participates in an exchange established under the 
Affordable Care Act might be considered a Federal provider for 
purposes of H.R. 3.
---------------------------------------------------------------------------
    \8\See, e.g., P.L. 111-117, div. D, tit. II, Sec. 508(c), 123 Stat. 
3034, 3280.
---------------------------------------------------------------------------
    Section 307 would preserve only those Federal laws that 
impose greater restrictions on access to abortion. Section 307 
makes clear that H.R. 3 would supersede any law that does not 
impose equal or greater restrictions on access to abortion. 
Section 307 leaves Congress no discretion or flexibility to, 
for example, provide greater protections for a woman's health 
in a particular setting or circumstance.
    Section 308 would allow funding for treatments of 
complications that might arise from abortion. This section was 
added by the manager's amendment offered at Committee markup 
and appears intended to protect women against wrongful denials 
of coverage by clarifying that funding restrictions do not 
apply to treatment for complications that might arise from an 
abortion. It is unclear whether section 308 will be sufficient 
to overcome the chilling effect of section 303 on insurers' 
coverage decisions.
    Section 309 would adopt the Hyde Amendment exceptions for 
cases of rape, incest, or where a woman's life is endangered. 
As originally introduced, H.R. 3 sought to narrow Hyde 
Amendment exceptions by allowing funding only in cases of 
``forcible rape'' and incest only with a minor. In response to 
justifiable outrage, these further limits were removed at 
markup, leaving in place the Hyde Amendment restrictions that 
provide only limited safeguards for a woman's health.
    Section 310 would reinstate and make permanent restrictions 
on funding for the District of Columbia. While some Congresses 
have restricted the District's use of its own funds, other 
Congresses have afforded it the same right as the states to use 
local, non-Federal funds for abortion-related services. Section 
310 would impose a permanent ban on the District's use of local 
funds for abortion-related services.
    Section 311 would provide unprecedented protection for 
anyone who refuses to provide abortion-related care and would 
elevate the right to refuse care over the obligation to provide 
life-saving care. Section 311 broadly protects any health care 
entity from government discrimination for refusing to provide 
abortion-related services, and creates a new private cause for 
enforcing this right. Unlike existing conscience protections, 
Section 311 protects anyone who faces even a threat of 
discrimination, regardless of whether actual discrimination 
ever occurs. Because section 311 does not define 
``discrimination,'' it is unclear what types of state actions 
might leave states at risk of a lawsuit and loss of Federal 
funding. Section 311, as interpreted by its key sponsors, also 
seeks to upset well-established law that requires the provision 
of life-saving care, even when that care requires the 
performance of an abortion.
    A number of organizations oppose H.R. 3, including: 
Abortion Care Network, Advocates for Youth, Alliance for 
Justice, American Nurses Association (ANA), American Civil 
Liberties Union, American Congress of Obstetricians and 
Gynecologists, American Humanist Association, American Medical 
Student Association (AMSA), American Medical Women's 
Association, American Public Health Association, Asian & 
Pacific Islander American Health Forum, Association of American 
Women (AAUW), Association of Reproductive Health Professionals 
(ARHP), Black Women's Health Imperative, Catholics for Choice, 
Center for American Progress Action Fund, Center for Health and 
Gender Equity (CHANGE), Center for Reproductive Rights, Center 
for Women Policy Studies, EngenderHealth, EQUAL Health Network, 
Feminist Majority Foundation, Guttmacher Institute, Human 
Rights Campaign, International Planned Parenthood Federation--
Western Hemisphere Region, Ipas, Law Students for Reproductive 
Justice, Medical Students for Choice, NARAL Pro-Choice America, 
National Abortion Federation, National Asian Pacific American 
Women's Forum (NAPAWF), National Association of Nurse 
Practitioners in Women's Health (NPWH), National Association of 
Social Workers (NASW), National Council of Jewish Women, 
National Family Planning and Reproductive Health Association, 
National Health Law Program, National Institute for 
Reproductive Health, National Latina Institute for Reproductive 
Health, National Network of Abortion Funds, National 
Organization for Women, National Partnership for Women & 
Families, National Women's Conference Committee, National 
Women's Health Network, National Women's Law Center, People For 
the American Way, Physicians for Reproductive Choice and 
Health, Planned Parenthood Federation of America, Population 
Connection, Raising Women's Voices for the Health Care We Need, 
Religious Coalition for Reproductive Choice, Religious 
Institute, Reproductive Health Technologies Project, Sexuality 
Information and Education Council of the U.S. (SIECUS), Third 
Way, Union for Reform Judaism,United Church of Christ, Justice 
and Witness Ministries, United Methodist Church, General Board 
of Church & Society, Women of Reform Judaism, YWCA USA.

  II. H.R. 3 IMPOSES UNPRECEDENTED TAX PENALTIES ON PRIVATE FUNDS AND 
    WILL INCREASE TAXES AND IMPERIL EXISTING INSURANCE COVERAGE FOR 
               AMERICAN WOMEN, FAMILIES, AND BUSINESSES.

    Section 303 of the bill will impose an unprecedented 
penalty--in the form of a tax increase--on the use of private 
money to pay for abortion or insurance that would cover 
abortion. Section 303 is not about Federal money. It is about 
the Federal Government penalizing individuals, families, and 
businesses when they make a particular, constitutionally 
protected, health care choice that some Members of Congress 
oppose.
    Section 303 of H.R. 3 has absolutely no corollary in 
existing law. It is a completely novel and untested use of the 
Internal Revenue Code, and the claim that section 303 is needed 
to prevent Federal funding for abortion represents a radical 
view that is at-odds with our longstanding treatment of private 
contributions in countless other circumstances. The politically 
convenient fiction that the money in an individual's own pocket 
is converted into Federal funds any time the government elects 
not to tax that money should be rejected.
A. LSection 303 Increases Taxes, Endangers Existing Insurance Coverage, 
        and Creates Uncertainty.
    Exactly how far section 303 sweeps, and what expenses it 
may penalize, is unclear. How much it will increase taxes, and 
exactly whose taxes will increase, is also unclear. Its impact 
on current comprehensive insurance coverage that American 
families now have, and rely upon to safeguard their physical 
and financial health, is similarly unknown.
    Indeed, while a Constitution Subcommittee hearing and the 
markup of H.R. 3 provide a general sense of the minimum reach 
of section 303's novel tax penalty provision, no one has been 
able to explain its maximum impact and when, if ever, insurance 
coverage that includes abortion is beyond its scope. This 
uncertainty will necessarily cause individuals, businesses and 
insurers to drop anything that might be construed as abortion 
coverage, if only to avoid the catastrophic financial 
consequences of an adverse tax ruling in the future. To the 
extent that individuals, businesses, and insurers do so, 
medical expenses incurred as a result of the loss of coverage 
for abortion-related care will be shifted to women and their 
families. These increased costs, which will not be reflected in 
estimates regarding H.R. 3's impact on Federal tax revenues, 
place women and families at considerable financial risk.
            1. LEven if limited to its minimum potential applications, 
                    section 303 will increase taxes of millions of 
                    small businesses, workers, and their families.
    At a minimum, section 303 will reach any private funds paid 
out-of-pocket for abortion services and private funds used to 
purchase insurance that includes coverage for abortion in many 
circumstances, including in the following ways.
    (a) Section 303(1) of H.R. 3 bars any ``credit'' under the 
Internal Revenue Code for any amounts paid for abortion or for 
health benefit plans that include coverage for abortion. This 
provision is intended to and likely would reach: (1) any small 
business that helps pay for insurance for its employees; and 
(2) any individual who qualifies for a credit under the 
Affordable Care Act or any other law, if the insurance 
purchased through private funds that make these businesses and 
individuals eligible for the relevant credit covers 
abortion.\9\
---------------------------------------------------------------------------
    \9\Constitution Subcomm. Hearing, supra note 2 (written testimony 
of Cathy Cleaver Ruse, at 8; written testimony of Sara Rosenbaum, at 
3).
---------------------------------------------------------------------------
    The Council of Economic Advisors estimates that 4 million 
small businesses are eligible for a tax credit under the 
Affordable Care Act if they provide health care to their 
workers, and that ``millions of workers at small firms and 
their families would be eligible for their own tax credits to 
purchase coverage through the Exchange if their firms did not 
offer coverage.''\10\ All of these businesses, individuals, and 
families would lose their tax credits under section 303(1) if 
their insurance covers abortion, thus raising taxes on 
potentially millions of small businesses and their workers.
---------------------------------------------------------------------------
    \10\Christina Romer & Mark Duggan, Council of Econ. Advisors, 
Health Insurance Reform Will Help Small Businesses (Feb. 26, 2010), 
www.whitehouse.gov/blog/2010/02/26/health-insurance-reform-will-help-
small-businesses. Appointed by the President with the advice and 
consent of the Senate, the Council of Economic Advisors offers the 
President objective economic advice on foreign and domestic economic 
policy.
---------------------------------------------------------------------------
    While the bill's sponsors claim that sections 305 and 306 
of the bill will preserve the right to use one's own funds to 
contract for and purchase insurance that covers abortion, 
section 303(1) would make it impossible for many women, 
families, and businesses to do so.
    For example, a single mother with two children who earns 
$24,000 a year becomes eligible in 2014 to purchase insurance 
through an exchange under the Affordable Care Act. If the 
family's health insurance plan includes coverage for abortion, 
section 303(1) requires them to forfeit the premium assistance 
credit that makes it possible to purchase this insurance. This 
effectively forces them to purchase insurance that excludes 
abortion coverage, making the right allegedly protected by 
sections 305 and 306 purely symbolic for this mother and her 
family.
    (b) Section 303(2) of H.R. 3 taxes any private funds paid 
out-of-pocket for abortion services by making these medical 
expenses ineligible for tax deduction. This will increase taxes 
on women and families who use their own money to pay for 
abortion services or where privately-purchased health insurance 
requires an out-of-pocket co-payment.
    As introduced, section 303(2) would also have disallowed 
tax deductions for any amounts paid for health benefit plans 
that include coverage of abortion. During the Constitution 
Subcommittee hearing, witnesses took decidedly different 
positions on whether section 303(2) would reach employer-
provided health insurance plans.\11\
---------------------------------------------------------------------------
    \11\Constitution Subcomm. Hearing, supra note 2 (written testimony 
of Cathy Cleaver Ruse, at 8; written testimony of Sara Rosenbaum, at 
3).
---------------------------------------------------------------------------
    In an apparent effort to clarify that section 303(2) should 
not be interpreted to apply to employer-provided plans, 
Representative Trent Franks offered a manager's amendment to 
H.R. 3 that struck the portion of section 303(2) referencing 
funds used to purchase health benefit plans that cover 
abortion.\12\ Though Representative Franks expressed his belief 
that section 303, as amended, should not be interpreted to 
reach employer-provided plans, he nonetheless objected to an 
amendment offered by Representative Jerrold Nadler that would 
have ensured that employer-provided plans are exempt from 
section 303.\13\ That amendment was not agreed to.
---------------------------------------------------------------------------
    \12\H.R. 3's sponsors may also have made this change to blunt the 
justifiable concern and criticism that, if interpreted to reach 
employer-provided plans, section 303 would immediately alter insurance 
coverage for the vast majority of American workers who receive coverage 
through their employers. However, as explained in Sec. I.(A)(3), even 
if section 303 does not itself reach employer-provided plans, there 
will be a spillover effect (as companies redesign insurance products 
for use in multiple markets) that will impact coverage under employer-
provided plans regardless. For a further explanation of the industry-
wide impact, and how insurance product design responds to broad 
regulatory intervention aimed at reshaping product content, see also 
Sara Rosenbaum et al., George Washington Univ. Med. Ctr., An Analysis 
of the Implications of the Stupak/Pitts Amendment for Coverage of 
Medically-Indicated Abortions (Nov. 16, 2009), http://www.gwumc.edu/
sphhs/departments/healthpolicy/dhp_publications/pub_uploads/
dhpPublication_FED314C4-5056-9D20-3DBE77EF6ABF0FED.pdf.
    \13\Markup Transcript, supra note 1, at 106-07.
---------------------------------------------------------------------------
    (c) Section 303(3) of H.R. 3 would penalize individuals 
with tax-preferred savings accounts any time they use their 
funds to pay for abortion services. Section 303(3) applies to 
individuals who set up health savings accounts or similar 
trusts through an employer or on their own, and requires that 
any personal funds paid for abortion be counted as taxable 
income.\14\
---------------------------------------------------------------------------
    \14\Constitution Subcomm. Hearing, supra note 2 (prepared statement 
of Cathy Cleaver Ruse, at 8; prepared statement of Sara Rosenbaum, at 
3).
---------------------------------------------------------------------------
    An estimated 30 million Americans currently use flexible 
spending accounts to set aside pre-tax money to pay for medical 
expenses,\15\ and approximately 10 million are enrolled in 
health savings accounts.\16\ Section 303 would increase taxes 
for these individuals and families if they use the money that 
they have set aside to cover medical expenses to pay for 
abortion.
---------------------------------------------------------------------------
    \15\Jordan Rau, Kaiser Health News, Defending the Flex Spending 
Accounts (Feb. 2, 2011), http://www.politico.com/news/stories/0211/
48627.html.
    \16\America's Health Insurance Plans, January 2010 Census Shows 10 
Million People Covered by HSA Qualified High-Deductible Health Plans 
(2010), http://www.ahipresearch.com/hsacensus.html.
---------------------------------------------------------------------------
            2. LSection 303's maximum reach is uncertain, with key 
                    sponsors seeking to penalize any insurance with a 
                    ``federal nexus,'' possibly including all plans 
                    purchased through an exchange.
    Minority Committee Members were unable to clarify section 
303's scope during the Committee's markup of H.R. 3 despite 
several efforts to do so. Indeed, several Members questioned 
Representative Franks about how his manager's amendment would 
work. Representative Franks' explanations only led to further 
confusion.
    For example, Representative Nadler sought to clarify the 
impact of the bill on an individual's use of her own funds to 
purchase insurance from a private company through the following 
colloquy:

          Mr. Nadler. If the only activity of the government, 
        Federal Government or State government, in the given 
        situation is that they have set up the exchange, that 
        the administrative costs of the exchange are being 
        borne by either the State or the Federal government, 
        and an individual goes to this exchange and, getting no 
        tax credit, buys an insurance policy from some private 
        company but does so on an exchange that is maintained 
        by the government, does [this bill] affect that?
          Mr. Franks. Well, once again, it depends on whether 
        there is any Federal nexus of financing and whether the 
        plan offers abortion or it does not. If it does not 
        offer abortion, of course, it is unaffected. If it 
        does, if there is any Federal nexus, whether it is this 
        tax credit again that makes the furniture float in the 
        room -
          Mr. Nadler. I thank the gentleman and I remain almost 
        as confused as I was before.\17\
---------------------------------------------------------------------------
    \17\Markup Transcript, supra note 1, at 32.

    The question of whether section 303 reaches any plan 
offered through an exchange is a significant one. The 
Congressional Budget Office estimates that within six years of 
implementation, 30 million people will get their health 
insurance through an exchange, including 3 million who will 
receive no Federal subsidy for doing so and another 9 million 
who will receive exchange-based insurance through an 
employer.\18\ Taxes will be increased, and coverage for 
millions of Americans placed at risk if, as its key sponsors 
have indicated it might, section 303 reaches any plan purchased 
through an exchange.
---------------------------------------------------------------------------
    \18\Letter from Douglas W. Elmendorf, Director, Congressional 
Budget Office, to Hon. John D. Dingell, U.S. House of Representatives 
(Nov. 6, 2009), http://www.cbo.gov/ftpdocs/107xx/doc10710/
hr3962Dingell_mgr_Amendment_update.pdf.
---------------------------------------------------------------------------
    During Committee markup, several Minority Members tried to 
limit section 303's scope and mitigate resulting tax increases 
by offering a series of amendments to the tax penalty 
provision. Representative Nadler offered an initial amendment 
to strike section 303 in its entirety, arguing that the 
provision reaches and penalizes private, not Federal, funds. He 
explained:

          My colleagues insist that this bill merely codifies 
        existing law and is needed to ensure that no Federal 
        funds are spent for abortion. But section 303 is not a 
        mere codification of existing law. It is completely 
        new. This provision would penalize the use of private 
        funds and impose a tax increase on anyone who used 
        their own money for abortion or abortion coverage. The 
        American people should not be fooled into thinking that 
        this is what happens now.
          Section 303 is not needed to prevent spending Federal 
        funds on abortion. Current law already prevents that. 
        And the funds reached in section 303 are not Federal 
        funds. And as the discussion of this committee in the 
        last 20 minutes has shown, the sponsors cannot even 
        tell us what this section covers and what this section 
        does not cover.\19\
---------------------------------------------------------------------------
    \19\Markup Transcript, supra note 1, at 51.

    When that amendment failed, Representative Nadler offered 
an amendment that would have stayed enforcement of the law 
pending a determination that section 303 will not increase 
taxes. As he explained: ``Unless it is the sponsor's intent to 
use tax penalties to impose a massive tax increase on Americans 
who choose to exercise their own private choices about their 
own health care and health care coverage, using their own 
money, every member should be able to support this 
amendment.''\20\ The amendment was not agreed to, nor were 
additional amendments offered by Representative Nadler to 
exempt employers and the self-employed from section 303's tax 
penalty provision.
---------------------------------------------------------------------------
    \20\Id. at 90.
---------------------------------------------------------------------------
    Also seeking to mitigate the harm caused by section 303, 
Representative Henry ``Hank'' Johnson, Jr. offered an amendment 
to exempt individuals from its tax penalties. As he explained, 
section 303 would place at risk American workers who lose their 
jobs and women at all income levels:

          Under current law, certain workers who lose their 
        jobs as a result of outsourcing to foreign countries 
        may be eligible for a health coverage tax credit. The 
        health coverage tax credit pays 80 percent of the cost 
        of a qualified health plan premium for eligible 
        workers.
        LH.R. 3 makes any insurance plan that includes coverage 
        of abortion ineligible for the health coverage tax 
        credit, thereby raising taxes on potentially thousands 
        of displaced workers. H.R. 3 would also increase taxes 
        on women who use their tax-preferred savings accounts, 
        such as flexible spending or health savings accounts, 
        their own money, to pay for abortion care. . . .
          . . . Further, this bill would penalize low-and-
        middle income people [who would lose eligibility for a 
        tax credit to purchase insurance under the Affordable 
        Care Act].
          . . . [I]n every way, this bill tells the American 
        taxpayer if you buy legal constitutionally protected 
        medical services that some members, mostly males, of 
        Congress don't like, then we're going to raise your 
        taxes. That's wrong. We have absolutely no business 
        doing that.\21\
---------------------------------------------------------------------------
    \21\Id. at 149-50.

    Representative Johnson's amendment was not agreed to, nor 
was an amendment offered by Representative Debbie Wasserman 
Schultz that would have protected small businesses from section 
303's tax penalties. As Representative Wasserman Schultz 
explained, application of section 303 to small businesses 
would--for an average small business with twelve employees, 
whose healthcare costs totaled approximately $90,000--raise the 
taxes of that small business by nearly $15,000.\22\
---------------------------------------------------------------------------
    \22\Id. at 184.
---------------------------------------------------------------------------
    Without the benefit of any of the clarifying and narrowing 
amendments offered by Minority Members, the potential reach of 
H.R. 3's tax penalty provision remains unclear and, even 
limited to its minimal applications, section 303 will raise the 
taxes of millions of American women, workers, businesses, and 
families.
            3. LSection 303 also endangers insurance coverage that 
                    millions of American women and their families 
                    currently rely upon to secure their physical and 
                    financial health.
    Regardless of its exact scope, the goal of section 303 is 
to drive insurance companies that provide coverage that 
includes abortion out of the private insurance market.
    Testifying before the Constitution Subcommittee, Professor 
Sara Rosenbaum explained that, if enacted, section 303 would 
cause '' a complete exodus of health plans from the market of 
abortion coverage.''\23\ In order to avoid the loss of 
favorable tax treatment, insurance companies will alter product 
design to exclude abortion coverage and deny coverage for any 
medical procedures that might possibly qualify as abortion-
related coverage. As Professor Rosenbaum observed:
---------------------------------------------------------------------------
    \23\Constitution Subcomm. Hearing, supra note 2 (oral testimony of 
Sara Rosenbaum, unofficial transcript).

        Because products that violate the [abortion] exclusion 
        would no longer qualify for favorable tax treatment, 
        the industry can be expected to scramble quickly to 
        come into compliance. Where the exclusion is as complex 
        and fact-driven as that laid out in H.R. 3, compliance 
        poses great difficulties. . . .
          . . . [A] far easier and completely legal strategy 
        for private insurers and plan administrators could be 
        simply to exclude coverage of all abortions from their 
        coverage products, whatever the clinical or factual 
        evidence, rather than risk a violation of the Federal 
        exclusion that in turn would result in the loss of tax-
        favored treatment for the entire product.\24\
---------------------------------------------------------------------------
    \24\Id. (written testimony of Sara Rosenbaum, at 4).

As Professor Rosenbaum's testimony makes clear, section 303 
will have a chilling effect on insurance coverage for medical 
expenses incurred by millions of American women.\25\
---------------------------------------------------------------------------
    \25\Inclusion of a new section 308 in Representative Franks' 
managers amendment, which allows coverage for medical care needed to 
treat possible complications ``caused by or exacerbated by the 
performance of an abortion'' does not mitigate this chilling effect. A 
decision to provide coverage will remain subject to review and, as 
Professor Rosenbaum testified, the safest and easiest route for 
insurers will still be denial of all coverage requests. Since another 
provision of H.R. 3 (section 311) provides insurers with a broad right 
to refuse coverage, any claim that section 308 sufficiently safeguards 
women's health is, at best, mistaken.
---------------------------------------------------------------------------
    A Majority witness at the hearing, Richard Doerflinger, 
frankly acknowledged the likelihood that the bill will alter 
existing insurance coverage:

        [T]he new legislation when combined with existing laws 
        may produce a `tipping point' where coverage without 
        abortion becomes the usual norm for health insurance; 
        coverage that includes abortion will be permitted but 
        rare.\26\
---------------------------------------------------------------------------
    \26\Constitution Subcomm. Hearing, supra note 2 (written testimony 
of Richard M. Doerflinger, at 9).

    Mr. Doerflinger expressed no concern for the millions of 
American women and families whose current insurance coverage 
would be changed: ``My response to this is that I hope it is 
correct.''\27\
---------------------------------------------------------------------------
    \27\Id.
---------------------------------------------------------------------------
    Congress should not embrace such cavalier disregard for the 
well-being of millions of American women and their families who 
currently have insurance that covers abortion services.\28\ 
Indeed, to the extent the H.R. 3 achieves this goal of making 
insurance that includes abortion coverage unavailable, medical 
expenses incurred as a result of that loss of coverage will be 
shifted entirely to women and their families. These increased 
costs, which will not be reflected in estimates regarding H.R. 
3's impact on Federal tax revenues, place women and families at 
considerable financial risk.
---------------------------------------------------------------------------
    \28\A federally supported study conducted by the Guttmacher 
Institute found that 87% of typical employer-based insurance plans 
covered abortion, and a 2003 survey by the Kaiser Family Foundation 
found that 46% of insured workers had coverage for abortion. See 
Guttmacher Institute, Memo on Insurance Coverage of Abortion (updated 
Sept. 18, 2009), http://www.guttmacher.org/media/inthenews/2009/07/22/
index.html.
---------------------------------------------------------------------------
    Seeking to mitigate the resulting risk to women and their 
families, Minority Members of the Committee fought hard to 
safeguard current insurance coverage through an amendment 
offered by Representative Mike Quigley.
    Representative Quigley's amendment would have protected 
current coverage by requiring certification that H.R. 3's 
untested tax penalty provision would not impair coverage in 
plans that millions of American women and families rely upon 
for comprehensive medical care. As he explained:

          I also want to be clear on what this attempt to 
        eliminate insurance coverage of abortion would actually 
        mean for millions of families across the country. . . . 
        if the intent of this bill succeeds, women who never 
        thought they would need an abortion will be endangered 
        when they are without coverage for an abortion and even 
        when an abortion is necessary to preserve a woman's 
        health.
          [T]he true ramifications of this bill will likely 
        eliminate private insurance coverage of abortions, 
        stripping away the comprehensive coverage that millions 
        of women currently have, need, and deserve.\29\
---------------------------------------------------------------------------
    \29\Markup Transcript, supra note 1, at 162.

Representative Quigley's amendment to safeguard existing 
coverage was not agreed to, placing at risk current coverage 
that American women and their families pay for with their own 
funds and that ensures comprehensive coverage for unforeseen 
medical needs.
B. LAccepting the Fiction that Section 303 Targets Federal Funding is 
        At-Odds with Congress's Longstanding Tax Treatment of Private 
        Funds in Other Circumstances.
    There is no precedent for the position that the tax 
treatment of private funds--whether through exemption, 
deduction, credit or any other favorable treatment--converts 
money that the government has decided not to collect from 
individual taxpayers or businesses into Federal funds. That 
position, adopted to justify H.R. 3's tax penalty on the purely 
private funding of abortion, directly conflicts with Congress's 
and the courts' longstanding view of the tax treatment of 
private funds.
    Under this theory, for example, favorable tax treatment for 
religious organizations or for individual contributions to 
religious organizations would qualify as Federal funding of 
religion, raising First Amendment Establishment Clause 
concerns. Of course, the Supreme Court has never considered the 
favorable tax treatment of private funds to constitute Federal 
funding in that context:

        The grant of a tax exemption is not sponsorship since 
        the government does not transfer part of its revenue to 
        churches but simply abstains from demanding that the 
        church support the state. No one has ever suggested 
        that tax exemption has converted libraries, art 
        galleries, or hospitals into arms of the state or put 
        employees ``on the public payroll.'' There is no 
        genuine nexus between tax exemption and establishment 
        of religion.\30\
---------------------------------------------------------------------------
    \30\Walz v. Tax Commission of City of New York, 397 U.S. 664, 675 
(1970) (upholding property tax exemptions for religious organizations).

    Just as favorable tax treatment does not convert private 
funds paid to religious organizations into Federal funding of 
religion, allowing private funds paid for abortion-related 
services to be treated as permissible medical expenses under 
the Internal Revenue Code does not convert those private funds 
into Federal funding of abortion. Section 303 does not target 
Federal funds but, instead, targets and penalizes the use of 
private funds. H.R. 3 is a radical departure from current tax 
treatment of medical expenses and insurance coverage; and it is 
not justifiable nor necessary to prevent Federal funding of 
abortion.

    III. H.R. 3 SEEKS TO ELEVATE THE RIGHT TO REFUSE CARE ABOVE THE 
OBLIGATION TO PROVIDE LIFE-SAVING CARE AND GRANTS UNPRECEDENTED SPECIAL 
      RIGHTS TO THOSE WHO REFUSE TO PROVIDE ABORTION-RELATED CARE.

    As originally enacted, conscience-clause provisions 
protected a provider's right to refuse or to provide abortion-
related care, and linked the right to refuse to provide care to 
religious beliefs or moral convictions.\31\ Starting in 2005, 
however, the right to refuse to provide care has been greatly 
expanded in certain appropriations bills, granting anyone who 
qualifies as a ``health care entity'' the right to refuse to 
provide abortion-related services for any reason 
whatsoever.\32\ Thus, while H.R. 3's sponsors claim that 
section 311 is needed to protect rights of conscience, citing a 
desire to protect religiously affiliated hospitals and 
individual health care workers, the broad right they seek to 
enshrine in Federal law lacks any connection to conscience-
based reasons for refusing care and is not limited to 
individuals or faith-based providers.
---------------------------------------------------------------------------
    \31\See, e.g., P.L. 93-45, Sec. 401, codified at 42 U.S.C. 
Sec. 300a-7 (the ``Church Amendment,'' named for its principal sponsor, 
Senator Frank Church, and first enacted in 1973).
    \32\See section 311 of H.R. 3; see also P.L. 111-117, div. D, tit. 
II, Sec. 508(d)(2) (``health care entity'' includes ``an individual 
physician or other health care professional, a hospital, a provider-
sponsored organization, a health maintenance organization, a health 
insurance plan, or any other kind of health are facility, organization, 
or plan.'').
---------------------------------------------------------------------------
    Representative Nadler explained the breadth and impact of 
section 311's refusal right during the markup of H.R. 3:

          Under section 311, for example, a state that requires 
        an insurance company to provide coverage for an 
        abortion, made necessary because a woman needs to start 
        immediate cancer treatment, could not be enforced 
        against any insurance company that chose not to provide 
        that coverage, regardless of the reason for doing so. 
        So we are not talking, necessarily, about a right of 
        conscience. If the insurance company came out and said, 
        we don't want to obey the State law that requires us to 
        pay for an abortion made necessary by a woman's cancer, 
        because we don't want to spend the money, we have no 
        ethical or moral or conscience objection, we just don't 
        want to spend the money, section 311 would trump the 
        State law that was enacted to protect the woman's 
        health in that case.\33\
---------------------------------------------------------------------------
    \33\Markup Transcript, supra note 1, at 122.

    Seeking to at least ensure equal protection for those who 
provide medical care, Representative Nadler offered an 
amendment that would provide this reciprocal right, including 
the new private right of action created by section 311. That 
amendment was not agreed to, with Representative Franks 
expressing concern that the amendment would undermine 
government efforts to restrict women's access to abortion 
services.\34\ Majority Committee Members expressed no 
equivalent concern for women in need of care, also rejecting 
several other amendments offered to safeguard women's 
health.\35\
---------------------------------------------------------------------------
    \34\Id. at 124.
    \35\Majority members of the Committee would not agree to several 
amendments that would have provided funding or coverage where an 
abortion is necessary to preserve a woman's health, including a 
specific amendment offered by Representative Wasserman Schultz to 
protect the health of women with cancer. Majority members also would 
not agree to an amendment offered by Representative Sheila Jackson Lee 
that would restore language previously include in the Hyde Amendment 
that allows funding where continuing a pregnancy could cause ``severe 
and long-lasting'' damage to a woman's health.
---------------------------------------------------------------------------
    Representative Franks opposed these amendments as 
unwarranted departures from current law\36\ while 
characterizing H.R. 3 as codifying existing refusal rights.\37\ 
But section 311 departs from current law in at least two 
critically important respects.
---------------------------------------------------------------------------
    \36\See, e.g., Markup Transcript, supra note 1, at 72 
(Representative Franks opposed Representative Jackson Lee's amendment 
to allow abortion where continuing a pregnancy could cause ``severe and 
long-lasting damage to a woman's health'' on the ground that ``[t]he 
Hyde Amendment does not contain a broader exception for health, and 
there is no reason to add one here. Such language has never been part 
of the Hyde Amendment. . . .''). As Representative Nadler pointed out, 
however,''[t]he health exception was in the Hyde Amendment for many 
years. . . .'' Id. at 73.
    \37\Id. at 13 (``Both the funding policies and the conscience 
protections of this bill have been Federal law for decades. . . .'').
---------------------------------------------------------------------------
    First, as interpreted by its key sponsors, section 311 does 
not respect well-established law requiring life-saving care. 
Current law on this point is clear: no one has the right to 
refuse to provide emergency life-saving care, even if that 
requires performance of an abortion. Indeed, Representative 
David Weldon, the original author of the refusal language 
included in H.R. 3, made clear that his nondiscrimination 
language ``simply prohibits coercion in nonlife-threatening 
situations.''\38\
---------------------------------------------------------------------------
    \38\151 Cong. Rec. H177 (daily ed. Jan 25, 2005) (statement of Rep. 
David Weldon).
---------------------------------------------------------------------------
    Seeking to clarify that current law on this point will be 
respected, Representative Judy Chu offered an amendment to 
confirm that the right to life-saving care would survive H.R. 
3's enactment. As Representative Chu explained:

          I hope that no one here would suggest that this bill 
        allows women coming into a hospital for life or death 
        care would be provided with anything less than the best 
        and fullest care. In fact, I fully expect my colleagues 
        on the other side to tell me that this amendment isn't 
        needed because the bill doesn't affect EMTALA 
        [Emergency Medical Treatment and Active Labor Act] 
        provisions, but I am very, very concerned that the 
        language in the Manager's Amendment regarding refusal 
        is broad enough and vague enough that some providers 
        may not understand that what we here in this room all 
        agree, which is that EMTALA supersedes refusal 
        provisions.\39\
---------------------------------------------------------------------------
    \39\Markup Transcript, supra note 1, at 172-73.

    However, rather than confirm an intent to respect current 
law, Representative Franks objected to the amendment, arguing 
that it ``would gut the conscience provision,'' and Majority 
Members of the Committee voted it down.\40\ This departure from 
existing law finds no support from its original author, 
Representative Weldon, who described the provision as applying 
to ``non-life threatening situations'' and took the unequivocal 
position that ``in situations where a mother's life is in 
danger a health care provider must act to protect the mother's 
life.''\41\ It is also at-odds with the position of the 
Catholic Health Association (CHA), the national leadership 
organization of more than 2,000 Catholic health care entities. 
While CHA supports the Weldon nondiscrimination language, it 
does not seek to elevate the right of refusal over the 
obligation to provide life-saving care: ``CHA member hospitals 
have been providing compassionate, quality care under both 
EMTALA and the `Weldon Amendment,' without conflict since the 
enactment of these provisions. Accordingly, CHA does not 
believe that there is a need for the provider nondiscrimination 
section to apply to EMTALA.''\42\
---------------------------------------------------------------------------
    \40\Id. at 175. An amendment offered by Representative Chu to 
ensure that nothing in H.R. 3 deprives women of the right to get full 
and accurate information about their medical condition and care also 
was not agreed to.
    \41\151 Cong. Rec. H177 (daily ed. Jan 25, 2005) (statement of Rep. 
David Weldon).
    \42\Letter from Sr. Carol Keehan, President and CEO, Catholic 
Health Association of the United States, to Joseph R. Pitts, Chairman, 
House Energy and Commerce Subcommittee on Health, U.S. House of 
Representatives (Feb. 9, 2011) (emphasis in original) (submitted for 
the record of the Constitution Subcomm. Hearing, supra note 2).
---------------------------------------------------------------------------
    Section 311 also departs from existing law by creating an 
unprecedented private cause of action any time there is ``an 
actual or threatened violation'' of its non-discrimination 
requirement. Thus, for example, a health care entity might sue 
a state under section 311 for requiring emergency care as a 
condition of state licensing, regardless of whether actual 
discrimination ever occurs. In fact, the mere existence of a 
state law requiring an insurance company to provide coverage 
for abortion in cases where a woman has cancer and needs to 
start treatment immediately, or in other cases where a woman's 
health is in serious danger, might entitle the entire universe 
of ``health care entities'' to sue the state for money damages.
    This unprecedented special right to receive compensation 
absent actual discrimination does not exist in other contexts. 
It is remarkable that, under the guise of preventing taxpayer 
funding of abortion, H.R. 3 seeks an entitlement to damages for 
an unlimited universe of individuals and organizations who have 
suffered no actual harm.

 IV. H.R. 3 SINGLES OUT WOMEN AND FAMILIES IN THE DISTRICT OF COLUMBIA 
 FOR PARTICULAR HARM, UNJUSTIFIABLY RESTRICTING THE DISTRICT'S USE OF 
                              LOCAL FUNDS.

    Section 310 of H.R. 3 singles out the District of Columbia 
and places additional limits on the District's use of its own, 
non-Federal funds for abortion-related care or coverage. 
Because of H.R.3's unprecedented impact on her district, 
Representative Eleanor Holmes Norton asked to testify before 
the Constitution Subcommittee. Breaking with the Committee's 
past practice of granting other Members with a particular 
interest in a bill or issue the opportunity to testify, the 
Majority refused our colleagues' request.
    Having been denied the opportunity to appear, 
Representative Norton submitted a prepared statement, 
explaining among other things, how H.R. 3 represents a radical 
departure from Congress's historic consideration of the 
District:

        H.R. 3, however, not only seeks to re-impose the ban on 
        the District's use of its local funds for abortion, but 
        also to make it permanent. This bill presents a new and 
        expanded way to deny the residents of the District of 
        Columbia their democratic rights. Unlike the prior 
        prohibitions on the District's use of its local funds, 
        section 310 states that the ``term `Federal Government' 
        includes the government of the District of Columbia.'' 
        Declaring that the District is a part of the Federal 
        Government for the purpose of abortion is an 
        unprecedented violation of the District's right to 
        self-government.\43\
---------------------------------------------------------------------------
    \43\Constitution Subcomm. Hearing, supra note 2 (written testimony 
of Hon. Eleanor Holmes Norton, at 2).

    As Representative Norton's testimony makes clear, some 
Congresses have restricted the District's use of its own funds, 
but others have accorded the District the same respect afforded 
to the states with regard to decisions about the use of local 
funds. If H.R. 3 should become law, the District's discretion 
to make the funding decisions that best serve the needs of its 
residents will be permanently restricted.
    During Committee markup of H.R. 3, Ranking Member John 
Conyers, Jr. offered an amendment to prevent imposition of this 
permanent restriction. Echoing his prior disappointment that 
the Committee had not honored Representative Norton's request 
to testify, Ranking Member Conyers sought to ensure that, as 
with constituents in other Members' districts, the women and 
families who reside in the District of Columbia should have the 
same assurance that their elected representatives can spend 
local funds to serve their best interests, not those of certain 
Members of Congress:

          Given the unique impact the bill has on the District 
        of Columbia, I offer this amendment that would ensure 
        that, like citizens elsewhere in the country, the 
        citizens of the District would be able to use their own 
        money, not Federal funds, but money from the District's 
        own general revenue fund that comes from District 
        residents.\44\
---------------------------------------------------------------------------
    \44\Markup Transcript, supra note 1, at 34.

    Committee Chairman Lamar Smith responded that, by virtue of 
Congress's unique relationship with the District, whereby 
Congress approves all District funding and technically 
appropriates those funds, the funds in the District's general 
revenue are converted to Federal funds. Despite Ranking Member 
Conyers' efforts ``to make sure that you heard this part of my 
comment, that there are monies that come into the treasury of 
the District of Columbia that are not Federal monies,''\45\ 
Majority Members of the Committee would not agree to the 
amendment.
---------------------------------------------------------------------------
    \45\Id. at 36.
---------------------------------------------------------------------------
    As with the fiction created to justify section 303 of the 
bill, this politically convenient funding fiction, used here to 
justify restrictions on the District's use of its own local 
funds, should be rejected. Women and families who live in the 
District should not be subject to additional harm simply 
because of where they live. They deserve the same guarantee 
afforded to constituents elsewhere: the fundamental assurance 
that their local elected representatives will act in their best 
interests or answer to the democratic process. We would never 
tolerate Congress treating our own constituents this way; we 
should show the same regard for the Americans who live in the 
Nation's Capitol.

                               CONCLUSION

    H.R. 3 is not a modest effort to codify existing 
restrictions on Federal funding of abortion but part of an 
aggressive campaign to roll back women's rights, without regard 
for the impact on women's health, lives, or families. H.R. 3's 
aggressive tax provision has no corollary in existing law. It 
is an untested and unjustifiable penalty on privately funded 
health care choices that some Members of Congress oppose.
    Through Federal funding restrictions that have been in 
place for more than three decades, Congress has used economic 
coercion in an effort to limit women's access to abortion. 
Until now, that coercion has been directed against the poor and 
women dependent on the Federal Government for health care. Now, 
all women and their families have been targeted.
    Women in America have the fundamental right--guaranteed by 
the Constitution that we take an oath to support and defend--to 
make the profound and deeply personal decision of whether to 
carry a pregnancy to term. H.R. 3 burdens that right in a 
variety of ways that have nothing to do with Federal funding of 
abortion. Accordingly, we adamantly oppose this bill.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Steve Cohen.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Mike Quigley.
                                   Judy Chu.
                                   Ted Deutch.
                                   Linda T. Sanchez.
                                   Debbie Wasserman Schultz.