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112th Congress                                             Rept. 112-40
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

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



 
                            PROTECT LIFE ACT

                                _______
                                

                 March 17, 2011.--Ordered to be printed

                                _______
                                

         Mr. Upton, from the Committee on Energy and Commerce, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 358]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 358) to amend the Patient Protection and 
Affordable Care Act to modify special rules relating to 
coverage of abortion services under such Act, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     4
Hearings.........................................................     5
Committee Consideration..........................................     6
Committee Votes..................................................     6
Committee Oversight Findings.....................................    11
Statement of General Performance Goals and Objectives............    11
New Budget Authority, Entitlement Authority, and Tax Expenditures    11
Earmark..........................................................    11
Committee Cost Estimate..........................................    11
Congressional Budget Office Estimate.............................    11
Federal Mandates Statement.......................................    12
Advisory Committee Statement.....................................    12
Applicability to Legislative Branch..............................    12
Section-by-Section Analysis of the Legislation...................    12
Changes in Existing Law Made by the Bill, as Reported............    15
Dissenting Views.................................................    21

                               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 ``Protect Life Act''.

SEC. 2. MODIFYING SPECIAL RULES RELATING TO COVERAGE OF ABORTION 
                    SERVICES UNDER THE PATIENT PROTECTION AND 
                    AFFORDABLE CARE ACT TO CONFORM TO LONG-STANDING 
                    FEDERAL POLICY.

  (a) In General.--Section 1303 of the Patient Protection and 
Affordable Care Act (Public Law 111-148), as amended by section 
10104(c) of such Act, is amended--
          (1) by redesignating subsections (c) and (d) as subsections 
        (e) and (f), respectively;
          (2) by redesignating paragraph (4) of subsection (b) as 
        subsection (d) and transferring such subsection (d) after the 
        subsection (c) inserted by paragraph (4) of this subsection 
        with appropriate indentation (and conforming the style of the 
        heading to a subsection heading);
          (3) by amending subsection (b) to read as follows:
  ``(b) Special Rules Relating to Training in and Coverage of Abortion 
Services.--Nothing in this Act (or any amendment made by this Act) 
shall be construed to require any health plan to provide coverage of or 
access to abortion services or to allow the Secretary or any other 
Federal or non-Federal person or entity in implementing this Act (or 
amendment) to require coverage of, access to, or training in abortion 
services.'';
          (4) by inserting after subsection (b) the following new 
        subsection:
  ``(c) Limitation on Abortion Funding.--
          ``(1) In general.--No funds authorized or appropriated by 
        this Act (or an amendment made by this Act), including credits 
        applied toward qualified health plans under section 36B of the 
        Internal Revenue Code of 1986 or cost-sharing reductions under 
        section 1402 of this Act, may be used to pay for any abortion 
        or to cover any part of the costs of any health plan that 
        includes coverage of abortion, except--
                  ``(A) if the pregnancy is the result of an act of 
                rape or incest; or
                  ``(B) in the case where a pregnant female suffers 
                from a physical disorder, physical injury, or physical 
                illness that would, as certified by a physician, place 
                the female in danger of death unless an abortion is 
                performed, including a life-endangering physical 
                condition caused by or arising from the pregnancy 
                itself.
          ``(2) Option to purchase separate coverage or plan.--Nothing 
        in this subsection shall be construed as prohibiting any non-
        Federal entity (including an individual or a State or local 
        government) from purchasing separate coverage for abortions for 
        which funding is prohibited under this subsection, or a 
        qualified health plan that includes such abortions, so long 
        as--
                  ``(A) such coverage or plan is paid for entirely 
                using only funds not authorized or appropriated by this 
                Act; and
                  ``(B) such coverage or plan is not purchased using--
                          ``(i) individual premium payments required 
                        for a qualified health plan offered through an 
                        Exchange towards which a credit is applied 
                        under section 36B of the Internal Revenue Code 
                        of 1986; or
                          ``(ii) other non-Federal funds required to 
                        receive a Federal payment, including a State's 
                        or locality's contribution of Medicaid matching 
                        funds.
          ``(3) Option to offer coverage or plan.--Nothing in this 
        subsection or section 1311(d)(2)(B)(i) shall restrict any non-
        Federal health insurance issuer offering a qualified health 
        plan from offering separate coverage for abortions for which 
        funding is prohibited under this subsection, or a qualified 
        health plan that includes such abortions, so long as--
                  ``(A) premiums for such separate coverage or plan are 
                paid for entirely with funds not authorized or 
                appropriated by this Act;
                  ``(B) administrative costs and all services offered 
                through such coverage or plan are paid for using only 
                premiums collected for such coverage or plan; and
                  ``(C) any such non-Federal health insurance issuer 
                that offers a qualified health plan through an Exchange 
                that includes coverage for abortions for which funding 
                is prohibited under this subsection also offers a 
                qualified health plan through the Exchange that is 
                identical in every respect except that it does not 
                cover abortions for which funding is prohibited under 
                this subsection.'';
          (5) in subsection (e), as redesignated by paragraph (1)--
                  (A) in the heading, by striking ``Regarding 
                Abortion'';
                  (B) in the heading of each of paragraphs (1) and (2), 
                by striking each place it appears ``regarding 
                abortion'';
                  (C) in paragraph (1), by striking ``regarding the 
                prohibition of (or requirement of) coverage, funding, 
                or'' and inserting ``protecting conscience rights, 
                restricting or prohibiting abortion or coverage or 
                funding of abortion, or establishing''; and
                  (D) in paragraph (2)(A), by striking ``Nothing'' and 
                inserting ``Subject to subsection (g), nothing'';
          (6) in subsection (f), as redesignated by paragraph (1), by 
        striking ``Nothing'' and inserting ``Subject to subsection (g), 
        nothing''; and
          (7) by adding at the end the following new subsection:
  ``(g) Nondiscrimination on Abortion.--
          ``(1) Nondiscrimination.--A Federal agency or program, and 
        any State or local government that receives Federal financial 
        assistance under this Act (or an amendment made by this Act), 
        may not subject any institutional or individual health care 
        entity to discrimination, or require any health plan created or 
        regulated under this Act (or an amendment made by this Act) to 
        subject any institutional or individual health care entity to 
        discrimination, on the basis that the health care entity 
        refuses to--
                  ``(A) undergo training in the performance of induced 
                abortions;
                  ``(B) require or provide such training;
                  ``(C) perform, participate in, provide coverage of, 
                or pay for induced abortions; or
                  ``(D) provide referrals for such training or such 
                abortions.
          ``(2) Definition.--In this subsection, 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.
          ``(3) Remedies.--
                  ``(A) 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--
                          ``(i) injunctions prohibiting conduct that 
                        violates this subsection; and
                          ``(ii) 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 subsection has 
                        ceased.
                  ``(B) Commencement of action.--An action under this 
                subsection may be instituted by--
                          ``(i) any health care entity that has 
                        standing to complain of an actual or threatened 
                        violation of this subsection; or
                          ``(ii) the Attorney General of the United 
                        States.
          ``(4) Administration.--The Secretary shall designate the 
        Director of the Office for Civil Rights of the Department of 
        Health and Human Services--
                  ``(A) to receive complaints alleging a violation of 
                this subsection; and
                  ``(B) to pursue investigation of such complaints in 
                coordination with the Attorney General.''.
  (b) Conforming Amendment.--Section 1334(a)(6) of such Act is amended 
to read as follows:
          ``(6) Coverage consistent with federal policy.--In entering 
        into contracts under this subsection, the Director shall ensure 
        that no multi-State qualified health plan offered in an 
        Exchange provides coverage for abortions for which funding is 
        prohibited under section 1303(c) of this Act.''.

                          Purpose and Summary

    H.R. 358, Protect Life Act, amends the Patient Protection 
and Affordable Care Act (PPACA) to prevent federal funding of 
abortion or abortion coverage. It also ensures that nothing in 
PPACA can be construed to require coverage of, or access to, 
abortion and to ensure that nothing in PPACA allows anyone 
implementing PPACA to require ``coverage of, access to, or 
training in abortion services.''
    The bill contains the Hyde limitation on funding for 
abortion and abortion coverage (life of the mother, rape and 
incest exceptions) consistent with the policies applied to 
Medicaid, the Federal Employee Health Benefits Program, and 
other federal programs.
    H.R. 358 states that no funds authorized or appropriated by 
PPACA, including tax credits and cost-sharing reductions, may 
be used to pay for abortion or abortion coverage except in 
cases of rape, incest, or to save the life of the mother.
    It specifies that any non-Federal entity (including 
individuals and State or local government) may purchase a 
separate elective abortion rider, or may purchase insurance 
coverage that includes elective abortion, so long as the 
coverage is not paid for with PPACA funds, and is not paid for 
using individual, State or local funds required to receive 
federal financial assistance.
    The bill also provides that insurance issuers may offer 
health plans that include elective abortion and may offer 
separate elective abortion riders, so long as they ensure PPACA 
funds are not used for premiums or administrative costs. The 
legislation clarifies that issuers who offer elective abortion 
coverage must also offer a qualified health benefits plan that 
is identical except that it does not cover elective abortion.
    H.R. 358 ensures nonpreemption of State laws ``protecting 
conscience rights, restricting or prohibiting abortion or 
coverage or funding of abortion, or establishing procedural 
requirements on abortion.'' For the provision regarding Federal 
laws, a technical reference is included to ensure there is no 
conflict between this provision and the ``Hyde-Weldon'' 
conscience provision that was added to the Hyde amendment in 
FY2005.
    The bill states that Federal programs and state or local 
governments that receive Federal financial assistance under 
PPACA may not subject any health care entity to discrimination 
or require any health plan to subject any entity to 
discrimination on the basis that the entity refuses to (A) 
undergo training in abortion, (B) require or provide such 
training, (C) perform, participate in, provide coverage of, or 
pay for abortions, or (D) provide referrals for training or 
abortion.
    It defines ``health care entity'' to include individual 
health care professionals, hospitals, insurance plans, or ``any 
other kind of health care facility, organization or plan.''
    The bill designates the Office for Civil Rights (OCR) at 
HHS to receive complaints and pursue investigations in 
coordination with the Attorney General. Under conscience 
regulations issued in January 2009, OCR is designated to 
receive complaints. However, this designation is not contained 
in Hyde-Weldon and could be rescinded in the future absent this 
new language.
    Finally, the Protect Life Act requires the Director of the 
Office of Personnel Management to ensure that no multi-State 
plan covers elective abortion.

                  Background and Need for Legislation

    PPACA does not contain comprehensive anti-mandate 
provisions with respect to abortion for qualified health 
benefits plans, nor does it clearly prohibit other methods of 
mandating abortion coverage--such as through preventive care 
requirements.
    PPACA establishes ``allocation accounts'' to segregate 
federal funds from premium funds that can be used for abortion 
coverage. Under this system, the plan issuer is required to 
collect the enrollee's portion of the premium in two payments. 
One payment goes into an account for abortion coverage and the 
other payment goes into an account for all other coverage. This 
has sometimes been referred to as the ``abortion surcharge.''
    PPACA requires the Director of the Office of Personnel 
Management to ensure that one multi-State plan does not cover 
elective abortion, while allowing all others to to offer plans 
that do cover abortion. Individuals who prefer the overall 
coverage in a plan that covers elective abortion must write a 
check to pay the abortion surcharge in order to take advantage 
of the coverage in that plan. A significant dilemma arises, 
however, when individuals who have a strong moral objection to 
abortion are forced to directly finance abortion coverage in 
order to purchase a health care plan they believe best provides 
for their needs and the needs of their family members. The 
Protect Life Act, by contrast, does not permit the use of any 
taxpayers' funds to subsidize abortion coverage.
    Article 1, Section 8 of the United States Constitutions 
provides to Congress the power to allocate federal funds, and 
by extension the power to limit federal funding for certain 
activities. PPACA contains a definition of services that hinges 
on the Hyde amendment being retained each year through the 
appropriations process. This leaves the door open for the Hyde 
limitations to be dropped by a determined majority in one 
chamber of Congress or by a presidential veto. The Protect Life 
Act provides greater certainty that the Hyde limitations will 
continue to apply to PPACA.
    After passage of PPACA, the President signed an Executive 
Order to address certain concerns about abortion funding. While 
there are different views about the effect of the Executive 
Order, it should be noted that a sitting president can change 
his mind and rescind it, a future president can have a 
different opinion, or opponents of the Executive Order can 
prevail in court by arguing that certain elements of the 
Executive Order do not have a sufficient legislative foundation 
to survive. The Protect Life Act provides greater certainty and 
permanence than any Executive Order.
    The legislation also provides for increased conscience 
provisions in the law. The Committee is aware that a 
significant number of physicians would likely leave the medical 
profession rather than compromise their beliefs by performing 
acts they believe to be unethical, undermining access to care 
for significant numbers of patients. The Protect Life Act will 
allow these professionals to continue their work without 
concerns in this area.

                                Hearings

    The Subcommittee on Health on February 9, 2011 held a 
hearing on H.R. 358, the Protect Life Act. The Subcommittee 
received testimony from:
           Helen Alvare, Associate Professor of Law, 
        George Mason University School of Law
           Sara Rosenbaum, Chair, Department of Health 
        Policy, George Washington University
           Douglas Johnson, Federal Legislative 
        Director, National Right to Life Committee

                        Committee Consideration

    On February 11, 2011, the Subcommittee on Health met in 
open markup session and approved H.R. 358, the Protect Life Act 
for Full Committee consideration, by a record vote of 14 yeas 
and 9 nays.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments thereto. A 
motion by Mr. Upton to order H.R. 358, reported to the House, 
as amended, was agreed to by a record vote of 33 yeas and 19 
nays.


                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee held a legislative 
hearing and made findings that are reflected in this report.

         Statement of General Performance Goals and Objectives

    H.R. 358 amends PPACA to prevent federal funding of 
abortion or abortion coverage. It also ensures that nothing in 
PPACA can be construed to require coverage of, or access to 
abortion and to ensure that nothing in PPACA allows anyone 
implementing PPACA to require ``coverage of, access to, or 
training in abortion services.''

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
358, Protect Life Act, would result in no new or increased 
budget authority, entitlement authority, or tax expenditures or 
revenues.

                                Earmark

    In compliance with clause 9(e), 9(f), and 9(g) of rule XXI, 
the Committee finds that H.R 358, the Protect Life Act, 
contains no earmarks.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

                  Congressional Budget Office Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
provided by the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 28, 2011.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 358, Protect Life 
Act.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 358--Protect Life Act

    H.R. 358 would amend section 1303 of the Patient Protection 
and Affordable Care Act (Public Law 111-148) to prohibit the 
use of federal funds provided under that Act to pay for 
abortion services or health costs of 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 require that qualified health plans offering coverage of 
abortion services, other than under those excepted 
circumstances, through health insurance exchanges collect 
separate premiums for such coverage. In addition, any such 
plans would have to provide identical plans without such 
abortion coverage through the exchanges. The bill would 
preserve state conscience protection laws and expand 
nondiscrimination rules for health care providers that decline 
to engage in abortion-related activities.
    Current federal law prohibits the use of federal funds to 
pay for abortion services and requires that qualified health 
plans providing abortion services under circumstances aside 
from those listed above collect separate premiums. Similarly, 
current federal and state laws protect the right of health care 
providers to decline to engage in abortion-related activities.
    CBO estimates that enacting H.R. 358 could affect direct 
spending; therefore, pay-as-you-go procedures apply. However, 
because H.R. 358 overlaps current federal and state laws, CBO 
expects that enactment would have little effect on coverage 
offered by qualified health plans. Consequently, CBO estimates 
that the federal budgetary effects would be negligible for each 
year.
    H.R. 358 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.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation


Section 1--Short title: Protect Life Act

Section 2--Modifying special rules relating to coverage of abortion 
        services under PPACA to conform to long-standing federal policy

    Subsection (a) contains modifications to Section 1303 
regarding abortion and abortion coverage. Subsection (b) 
contains a modification to Section 1334 regarding multi-State 
plans.
    Subsection (a), paragraph (3) adds anti-mandate language to 
ensure that nothing in PPACA can be construed to require 
coverage of, or access to abortion and to ensure that nothing 
in PPACA allows anyone implementing PPACA to require ``coverage 
of, access to, or training in abortion services.'' It also 
deletes the ``voluntary choice in coverage'' language and the 
accounting system currently contained in PPACA that was 
intended to prevent direct taxpayer funding of abortion.
    Specific provisions deleted from PPACA include the 
prohibition on mandating abortion as a part of the essential 
benefits plan and the provison that the issuer of a qualified 
health benefits plan shall choose whether to provide abortion 
services. This is not a comprehensive anti-mandate provision 
and only applies to abortion mandates in the context of the 
essential benefits package and qualified health benefits plans. 
This language does not clearly prohibit other methods of 
mandating abortion coverage--such as through preventive care 
requirements.
    The definition of abortion services in PPACA that hinges on 
the Hyde amendment being retained is also deleted. This 
definition is used as a ``key'' to decipher other sections of 
the accounting system but the accounting system would disappear 
altogether if the Hyde amendment is deleted in the future.
    The provision in PPACA that health plans that cover 
elective abortion shall not use federal tax credits or cost 
sharing assistance for abortion is likewise deleted. This 
provision does not prevent funding for abortion coverage. It 
simply triggers the accounting system for insurance coverage 
that includes abortion.
    The PPACA ``allocation accounts'' to segregate funds are 
deleted. Under this process, the plan issuer is required to 
collect the enrollee's portion of the premium in two payments. 
One payment would go into an account for abortion coverage--
this payment is sometimes described as the abortion surcharge--
and the other payment would go into an account for all other 
coverage. Under this scheme, a person would be required to pay 
the abortion fee even if they did not want coverage of 
abortion.
    The directive in PPACA that State health insurance 
commissioners ensure compliance with the accounting system 
becomes moot and is therefore deleted, along with the allowance 
for individuals or health plans to appeal compliance actions by 
the commissioners in court.
    An additional deletion from PPACA is the stipulation that 
health plans that cover elective abortion may notify the 
enrollee of abortion coverage ``only as part of the summary of 
benefits and coverage explanation, at the time of enrollment . 
. .'' Similarly, the directive that the summary of benefits and 
coverage explanation, advertising for plans, and information on 
the Exchange may only provide information about the total cost 
of the plan is deleted.
    Subsection (a), paragraph (4) of H.R. 358 inserts language 
that prohibits funding for abortion and abortion coverage 
consistent with the policies applied to Medicaid, Children's 
Health Insurance Program, the Federal Employees Health Benefits 
Program, and other federal programs.
    The limitation on abortion funding in paragraph (4) states 
that no funds authorized or appropriated by PPACA, including 
tax credits and cost-sharing reductions, may be used to pay for 
abortion or abortion coverage except in cases of rape, incest 
or to save the life of the mother.
    However, the limitation specifies that any non-Federal 
entity (including individuals and State or local government) 
may purchase a separate elective abortion rider, or may 
purchase insurance coverage that includes elective abortion, so 
long as the coverage is not paid for with PPACA funds, and is 
not paid for using individual, State or local funds required to 
receive federal financial assistance. (e.g., the coverage 
cannot be paid for with the PPACA premium assistance, nor can 
it be paid for with the portion of the premium that must be 
paid in order to receive PPACA premium assistance.)
    The limitation further specifies that insurance issuers may 
offer health plans that include elective abortion and may offer 
separate elective abortion riders, so long as they ensure PPACA 
funds are not used for premiums or administrative costs. The 
Act further clarifies that issuers that offer elective abortion 
coverage must also offer a qualified health benefits plan that 
is identical except that it does not cover elective abortion.
    Subsection (a), paragraph (5) adjusts the current statutory 
language regarding preemption of state or federal laws to close 
loopholes. The state nonpreemption language currently contained 
in (c)(1) [redesignated at (e)(1) in the Protect Life Act] does 
not protect state conscience protection laws, and instead 
protects state laws requiring the provision of abortion and 
abortion funding. The Protect Life Act changes this language by 
removing protections for laws favoring abortion and instead 
ensures nonpreemption of State laws ``protecting conscience 
rights, restricting or prohibiting abortion or coverage or 
funding of abortion, or establishing procedural requirements on 
abortion.'' For the provision regarding Federal laws, a 
technical reference (``subject to subsection (g)'') is added to 
ensure there is no conflict between this provision and the 
``Hyde-Weldon'' conscience provision added in subsection (g).
    Subsection (a), paragraph (6) inserts ``Subject to 
subsection (g)'' before the clause regarding emergency services 
including the Emergency Medical Treatment and Active Labor Act 
(EMTALA). There is not a conflict between the conscience clause 
and EMTALA because EMTALA references stabilizing the woman and 
her ``unborn child.'' The language clarifies that the general 
reference to ``emergency services as required by State or 
Federal law'' should not be construed to allow states to 
override conscience protections by labeling broad abortion 
mandates as ``emergency service'' requirements.
    Subsection (a), paragraph (7) adds a new subsection (g), 
``Nondiscrimination on Abortion,'' which is very similar to the 
Hyde-Weldon conscience provision. It states that Federal 
programs and state or local governments that receive Federal 
financial assistance under PPACA may not subject any health 
care entity to discrimination or require any health plan to 
subject any entity to discrimination on the basis that the 
entity refuses to (a) undergo training in abortion, (b) require 
or provide such training, (c) perform, participate in, provide 
coverage of, or pay for abortions, or (d) provide referrals for 
training or abortion.
    New subsection (g) in paragraph (7) includes a remedies 
section so that individuals who have been discriminated against 
or are under threat of discrimination may seek redress in 
court. The Office for Civil Rights at HHS is designated to 
receive complaints under this subsection and pursue 
investigations in coordination with the Attorney General.
    Subsection (b) changes language in Section 1334 regarding 
multi-State plans run by the Director of the Office of 
Personnel Management. Currently PPACA includes a provision 
requiring the Director to ensure that at least one multi-State 
plan does not cover elective abortion. This permits the 
Director to offer additional multi-State plans that do cover 
abortion. The Protect Life Act replaces the current language 
with a new (a)(6) that instructs the Director to ensure that no 
multi-State plan covers elective abortion.

         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 (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

PATIENT PROTECTION AND AFFORDABLE CARE ACT

           *       *       *       *       *       *       *



TITLE I--QUALITY, AFFORDABLE HEALTH CARE FOR ALL AMERICANS

           *       *       *       *       *       *       *



        Subtitle D--Available Coverage Choices for All Americans


PART 1--ESTABLISHMENT OF QUALIFIED HEALTH PLANS

           *       *       *       *       *       *       *



SEC. 1303. SPECIAL RULES.

  (a) * * *
  [(b) Special rules relating to coverage of abortion 
services.--
          [(1) Voluntary choice of coverage of abortion 
        services.--
                  [(A) In general.--Notwithstanding any other 
                provision of this title (or any amendment made 
                by this title)--
                          [(i) nothing in this title (or any 
                        amendment made by this title), shall be 
                        construed to require a qualified health 
                        plan to provide coverage of services 
                        described in subparagraph (B)(i) or 
                        (B)(ii) as part of its essential health 
                        benefits for any plan year; and
                          [(ii) subject to subsection (a), the 
                        issuer of a qualified health plan shall 
                        determine whether or not the plan 
                        provides coverage of services described 
                        in subparagraph (B)(i) or (B)(ii) as 
                        part of such benefits for the plan 
                        year.
                  [(B) Abortion services.--
                          [(i) Abortions for which public 
                        funding is prohibited.--The services 
                        described in this clause are abortions 
                        for which the expenditure of Federal 
                        funds appropriated for the Department 
                        of Health and Human Services is not 
                        permitted, based on the law as in 
                        effect as of the date that is 6 months 
                        before the beginning of the plan year 
                        involved.
                          [(ii) Abortions for which public 
                        funding is allowed.--The services 
                        described in this clause are abortions 
                        for which the expenditure of Federal 
                        funds appropriated for the Department 
                        of Health and Human Services is 
                        permitted, based on the law as in 
                        effect as of the date that is 6 months 
                        before the beginning of the plan year 
                        involved.
          [(2) Prohibition on the use of Federal funds.--
                  [(A) In general.--If a qualified health plan 
                provides coverage of services described in 
                paragraph (1)(B)(i), the issuer of the plan 
                shall not use any amount attributable to any of 
                the following for purposes of paying for such 
                services:
                          [(i) The credit under section 36B of 
                        the Internal Revenue Code of 1986 (and 
                        the amount (if any) of the advance 
                        payment of the credit under section 
                        1412 of the Patient Protection and 
                        Affordable Care Act).
                          [(ii) Any cost-sharing reduction 
                        under section 1402 of the Patient 
                        Protection and Affordable Care Act (and 
                        the amount (if any) of the advance 
                        payment of the reduction under section 
                        1412 of the Patient Protection and 
                        Affordable Care Act).
                  [(B) Establishment of allocation accounts.--
                In the case of a plan to which subparagraph (A) 
                applies, the issuer of the plan shall--
                          [(i) collect from each enrollee in 
                        the plan (without regard to the 
                        enrollee's age, sex, or family status) 
                        a separate payment for each of the 
                        following:
                                  [(I) an amount equal to the 
                                portion of the premium to be 
                                paid directly by the enrollee 
                                for coverage under the plan of 
                                services other than services 
                                described in paragraph 
                                (1)(B)(i) (after reduction for 
                                credits and cost-sharing 
                                reductions described in 
                                subparagraph (A)); and
                                  [(II) an amount equal to the 
                                actuarial value of the coverage 
                                of services described in 
                                paragraph (1)(B)(i), and
                          [(ii) shall deposit all such separate 
                        payments into separate allocation 
                        accounts as provided in subparagraph 
                        (C).
                In the case of an enrollee whose premium for 
                coverage under the plan is paid through 
                employee payroll deposit, the separate payments 
                required under this subparagraph shall each be 
                paid by a separate deposit.
                  [(C) Segregation of funds.--
                          [(i) In general.--The issuer of a 
                        plan to which subparagraph (A) applies 
                        shall establish allocation accounts 
                        described in clause (ii) for enrollees 
                        receiving amounts described in 
                        subparagraph (A).
                          [(ii) Allocation accounts.--The 
                        issuer of a plan to which subparagraph 
                        (A) applies shall deposit--
                                  [(I) all payments described 
                                in subparagraph (B)(i)(I) into 
                                a separate account that 
                                consists solely of such 
                                payments and that is used 
                                exclusively to pay for services 
                                other than services described 
                                in paragraph (1)(B)(i); and
                                  [(II) all payments described 
                                in subparagraph (B)(i)(II) into 
                                a separate account that 
                                consists solely of such 
                                payments and that is used 
                                exclusively to pay for services 
                                described in paragraph 
                                (1)(B)(i).
                  [(D) Actuarial value.--
                          [(i) In general.--The issuer of a 
                        qualified health plan shall estimate 
                        the basic per enrollee, per month cost, 
                        determined on an average actuarial 
                        basis, for including coverage under the 
                        qualified health plan of the services 
                        described in paragraph (1)(B)(i).
                          [(ii) Considerations.--In making such 
                        estimate, the issuer--
                                  [(I) may take into account 
                                the impact on overall costs of 
                                the inclusion of such coverage, 
                                but may not take into account 
                                any cost reduction estimated to 
                                result from such services, 
                                including prenatal care, 
                                delivery, or postnatal care;
                                  [(II) shall estimate such 
                                costs as if such coverage were 
                                included for the entire 
                                population covered; and
                                  [(III) may not estimate such 
                                a cost at less than $1 per 
                                enrollee, per month.
                  [(E) Ensuring compliance with segregation 
                requirements.--
                          [(i) In general.--Subject to clause 
                        (ii), State health insurance 
                        commissioners shall ensure that health 
                        plans comply with the segregation 
                        requirements in this subsection through 
                        the segregation of plan funds in 
                        accordance with applicable provisions 
                        of generally accepted accounting 
                        requirements, circulars on funds 
                        management of the Office of Management 
                        and Budget, and guidance on accounting 
                        of the Government Accountability 
                        Office.
                          [(ii) Clarification.--Nothing in 
                        clause (i) shall prohibit the right of 
                        an individual or health plan to appeal 
                        such action in courts of competent 
                        jurisdiction.
          [(3) Rules relating to notice.--
                  [(A) Notice.--A qualified health plan that 
                provides for coverage of the services described 
                in paragraph (1)(B)(i) shall provide a notice 
                to enrollees, only as part of the summary of 
                benefits and coverage explanation, at the time 
                of enrollment, of such coverage.
                  [(B) Rules relating to payments.--The notice 
                described in subparagraph (A), any advertising 
                used by the issuer with respect to the plan, 
                any information provided by the Exchange, and 
                any other information specified by the 
                Secretary shall provide information only with 
                respect to the total amount of the combined 
                payments for services described in paragraph 
                (1)(B)(i) and other services covered by the 
                plan.]
  (b) Special Rules Relating to Training in and Coverage of 
Abortion Services.--Nothing in this Act (or any amendment made 
by this Act) shall be construed to require any health plan to 
provide coverage of or access to abortion services or to allow 
the Secretary or any other Federal or non-Federal person or 
entity in implementing this Act (or amendment) to require 
coverage of, access to, or training in abortion services.
  (c) Limitation on Abortion Funding.--
          (1) In general.--No funds authorized or appropriated 
        by this Act (or an amendment made by this Act), 
        including credits applied toward qualified health plans 
        under section 36B of the Internal Revenue Code of 1986 
        or cost-sharing reductions under section 1402 of this 
        Act, may be used to pay for any abortion or to cover 
        any part of the costs of any health plan that includes 
        coverage of abortion, except--
                  (A) if the pregnancy is the result of an act 
                of rape or incest; or
                  (B) in the case where a pregnant female 
                suffers from a physical disorder, physical 
                injury, or physical illness that would, as 
                certified by a physician, place the female in 
                danger of death unless an abortion is 
                performed, including a life-endangering 
                physical condition caused by or arising from 
                the pregnancy itself.
          (2) Option to purchase separate coverage or plan.--
        Nothing in this subsection shall be construed as 
        prohibiting any non-Federal entity (including an 
        individual or a State or local government) from 
        purchasing separate coverage for abortions for which 
        funding is prohibited under this subsection, or a 
        qualified health plan that includes such abortions, so 
        long as--
                  (A) such coverage or plan is paid for 
                entirely using only funds not authorized or 
                appropriated by this Act; and
                  (B) such coverage or plan is not purchased 
                using--
                          (i) individual premium payments 
                        required for a qualified health plan 
                        offered through an Exchange towards 
                        which a credit is applied under section 
                        36B of the Internal Revenue Code of 
                        1986; or
                          (ii) other non-Federal funds required 
                        to receive a Federal payment, including 
                        a State's or locality's contribution of 
                        Medicaid matching funds.
          (3) Option to offer coverage or plan.--Nothing in 
        this subsection or section 1311(d)(2)(B)(i) shall 
        restrict any non-Federal health insurance issuer 
        offering a qualified health plan from offering separate 
        coverage for abortions for which funding is prohibited 
        under this subsection, or a qualified health plan that 
        includes such abortions, so long as--
                  (A) premiums for such separate coverage or 
                plan are paid for entirely with funds not 
                authorized or appropriated by this Act;
                  (B) administrative costs and all services 
                offered through such coverage or plan are paid 
                for using only premiums collected for such 
                coverage or plan; and
                  (C) any such non-Federal health insurance 
                issuer that offers a qualified health plan 
                through an Exchange that includes coverage for 
                abortions for which funding is prohibited under 
                this subsection also offers a qualified health 
                plan through the Exchange that is identical in 
                every respect except that it does not cover 
                abortions for which funding is prohibited under 
                this subsection.
  [(4) No discrimination on basis of provision of abortion] (d) 
No Discrimination on Basis of Provision of Abortion.--No 
qualified health plan offered through an Exchange may 
discriminate against any individual health care provider or 
health care facility because of its unwillingness to provide, 
pay for, provide coverage of, or refer for abortions
  [(c)] (e) Application of State and Federal Laws [Regarding 
Abortion].--
          (1) No preemption of State laws [regarding 
        abortion].--Nothing in this Act shall be construed to 
        preempt or otherwise have any effect on State laws 
        [regarding the prohibition of (or requirement of) 
        coverage, funding, or] protecting conscience rights, 
        restricting or prohibiting abortion or coverage or 
        funding of abortion, or establishing procedural 
        requirements on abortions, including parental 
        notification or consent for the performance of an 
        abortion on a minor.
          (2) No effect on Federal laws [regarding abortion].--
                  (A) In general.--[Nothing] Subject to 
                subsection (g), nothing in this Act shall be 
                construed to have any effect on Federal laws 
                regarding--
                          (i) * * *

           *       *       *       *       *       *       *

  [(d)] (f) Application of emergency services laws.--[Nothing] 
Subject to subsection (g), nothing in this Act shall be 
construed to relieve any health care provider from providing 
emergency services as required by State or Federal law, 
including section 1867 of the Social Security Act (popularly 
known as ``EMTALA'').
  (g) Nondiscrimination on Abortion.--
          (1) Nondiscrimination.--A Federal agency or program, 
        and any State or local government that receives Federal 
        financial assistance under this Act (or an amendment 
        made by this Act), may not subject any institutional or 
        individual health care entity to discrimination, or 
        require any health plan created or regulated under this 
        Act (or an amendment made by this Act) to subject any 
        institutional or individual health care entity to 
        discrimination, on the basis that the health care 
        entity refuses to--
                  (A) undergo training in the performance of 
                induced abortions;
                  (B)   require or provide such training;
                  (C) perform, participate in, provide coverage 
                of, or pay for induced abortions; or
                  (D) provide referrals for such training or 
                such abortions.
          (2) Definition.--In this subsection, 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.
          (3) Remedies.--
                  (A) 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--
                          (i) injunctions prohibiting conduct 
                        that violates this subsection; and
                          (ii) 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 
                        subsection has ceased.
                  (B) Commencement of action.--An action under 
                this subsection may be instituted by--
                          (i) any health care entity that has 
                        standing to complain of an actual or 
                        threatened violation of this 
                        subsection; or
                          (ii) the Attorney General of the 
                        United States.
          (4) Administration.--The Secretary shall designate 
        the Director of the Office for Civil Rights of the 
        Department of Health and Human Services--
                  (A) to receive complaints alleging a 
                violation of this subsection; and
                  (B) to pursue investigation of such 
                complaints in coordination with the Attorney 
                General.

           *       *       *       *       *       *       *


PART 4--STATE FLEXIBILITY TO ESTABLISH ALTERNATIVE PROGRAMS

           *       *       *       *       *       *       *


SEC. 1334. MULTI-STATE PLANS.

  (a) Oversight by the Office of Personnel Management.--
          (1) * * *

           *       *       *       *       *       *       *

          [(6) Assured availability of varied coverage.--In 
        entering into contracts under this subsection, the 
        Director shall ensure that with respect to multi-State 
        qualified health plans offered in an Exchange, there is 
        at least one such plan that does not provide coverage 
        of services described in section 1303(b)(1)(B)(i).]
          (6) Coverage consistent with federal policy.--In 
        entering into contracts under this subsection, the 
        Director shall ensure that no multi-State qualified 
        health plan offered in an Exchange provides coverage 
        for abortions for which funding is prohibited under 
        section 1303(c) of this Act.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    We, the undersigned Members of the Committee on Energy and 
Commerce, oppose the passage of H.R. 358, Protect Life Act, and 
accordingly, submit the following comments to express our 
concerns about this deeply flawed and deeply divisive 
legislation.

                              Introduction

    For decades, the law of the land has been that no federal 
funds can be used for abortion services (with the exception of 
those in which the pregnancy threatens the life of the woman or 
is the result of rape or incest). There have been GAO audits, 
inspector general audits, and congressional hearings, and all 
have concluded that the law of the land is being obeyed. No 
federal funds are being used for abortion services.
    The Affordable Care Act continues that policy. In 
provisions that were probably more carefully scrutinized, 
edited, and debated than any others in the Act, the ban on 
federal payment for abortion services was clearly preserved. 
The Act goes so far as to require two separate premium payments 
for those people purchasing insurance that covers abortion 
services (other than in the case of rape or incest or to 
protect the life of the woman), providing a physical corollary 
to the legal requirement that federal funds be separately 
pooled--even at insurance companies.
    So the record is clear: For decades, the federal law has 
been that no federal funds can be used for abortion services 
and the Affordable Care Act maintains that policy and law.
    If this is the case, what is H.R. 358 all about? If no 
federal funds are or can be used, what is the purpose of this 
legislation?
    The answer is that this bill clearly goes further than the 
regulation of federal funds. Its effect would be to harass and 
intimidate women and their families in their use of their own 
money. It makes the job of private insurance companies so 
artificially complicated and unworkable as to force them from 
the market. It takes anti-abortion politics far beyond where 
they have been for the decades of the Hyde Amendment and to put 
them right in the middle of private homes and workplaces and 
squarely in private citizens' paychecks and premiums. Its very 
essence is to create an undue burden on how people can exercise 
their own choices with their own money, and it creates a 
substantial obstacle to a woman seeking abortion services.
    There are many particulars in the bill to which we object. 
But before discussing these, we feel it necessary to debunk the 
central argument made for the bill: It is not about the 
regulation of federal funds. For those members of Congress who 
have regularly said that they are opposed to federal funding of 
abortion, this bill is absolutely unnecessary. This bill should 
be supported only by those members who actually want to step 
far beyond that position and to overturn the privacy rights 
enumerated by the Supreme Court and to place the government 
between a woman and her doctor when making this most personal 
decision.

                              Current Law

    Enacted in 2010, the Patient Protection and Affordable Care 
Act (ACA)\1\ makes significant changes to health coverage for 
women, expanding their access to care and broadening the health 
benefits many will receive.\2\
---------------------------------------------------------------------------
    \1\ACA is comprised of two public laws, P.L. 111-148 and P.L. 111-
152.
    \2\See, e.g., P.L. 111-148, Sections 1001 and 4101 (relating to 
preventive health care); Section 1201 (relating to insurance coverage 
for women); and Section 1302 (relating to maternity benefits).
---------------------------------------------------------------------------
    Coverage for abortion services, however, is given special 
and extensive consideration and is addressed separately under 
ACA.\3\ It was authored by Senator Ben Nelson, a member whose 
anti-abortion views are well known. It is carefully crafted to 
produce a delicately balanced approach to this issue. Among the 
ACA provisions related to abortion coverage are:
---------------------------------------------------------------------------
    \3\P.L. 111-148, Section 1303 and Section 1334(a)(6).
---------------------------------------------------------------------------
           Prohibition of the requirement of abortion 
        coverage as part of the essential health benefits 
        package of any qualified health plan (ACA Section 
        1303(b)(A)(i));
           Permission for states to prohibit coverage 
        for any abortions by all private plans in their state-
        based exchange (ACA Section 1303(a)(1));
           Permission for private plans in a state 
        exchange to offer abortion coverage beyond that 
        permitted under federal law so long as--
                   No federal subsidies (for premiums 
                or cost sharing) are used to purchase such 
                coverage, i.e., only private dollars are used 
                to purchase abortion coverage (ACA Section 
                1303(b)(2)(A)); and
                   The plan collects two separate 
                premium payments from all enrollees--one 
                payment for the value of the abortion benefit 
                and one payment for all other covered services 
                (ACA Section 1303(b)(2)(B));
           Prohibition of discrimination by exchange-
        participating plans against any individual health care 
        provider or health care facility because of its 
        unwillingness to provide, pay for, provide coverage of, 
        or refer for abortion (ACA Section 1303 (b)(4)); and
           Requirement that at least one multi-state 
        plan within a state exchange not cover abortion 
        services beyond those permitted under federal law (in 
        cases of rape, incest and to save the life of the 
        woman) (ACA Section 1334(a)(6)).
    In addition to these provisions, ACA allows for the 
following roles for states in addressing abortion coverage:
           ACA has no effect on state laws regarding 
        coverage, funding, or procedural requirements on 
        abortion (such as parental notification or consent 
        laws) (ACA Section 1303 (c)(1)); and
           States can use state-only funds to pay for 
        medically necessary abortions beyond those permitted 
        under federal law under Medicaid or to pay for abortion 
        coverage in plans offered in an exchange.
    The language also makes clear that Senator Nelson's 
provisions have no effect on federal laws regarding--
           Conscience protection; willingness or 
        refusal to provide abortion; and discrimination on the 
        basis of the willingness or refusal to provide, pay 
        for, cover or refer for abortion or to provide or 
        participate in training to provide abortion (ACA 
        Section 1303 (c)(2));
           Rights and obligations of employers and 
        employees under Title VII of the 1964 Civil Rights Act 
        (ACA Section 1303 (c)(3)); or
           The obligation of health care providers to 
        provide emergency services as required under either 
        state or federal law, including the Emergency Medical 
        Treatment and Active Labor Act (popularly known as 
        ``EMTALA'')\4\ (ACA Section 1303 (d)).
---------------------------------------------------------------------------
    \4\Social Security Act, Section 1867 (42 U.S.C. 1395dd).
---------------------------------------------------------------------------
    Shortly after the enactment of ACA, President Obama signed 
Executive Order 13535 to ensure the enforcement and 
implementation of the abortion restrictions included in ACA.\5\ 
The Order reinforces the prohibition on the use of federal 
funds for abortion services under ACA; clarifies that such 
prohibition applies to community health centers receiving funds 
under ACA;\6\ and directs the Office of Management and Budget 
(OMB) to develop a model set of guidelines for state health 
insurance commissioners to use in determining whether state 
exchange plans are complying with ACA's public/private dollar 
segregation requirements. OMB published such pre-regulatory 
guidelines on September 20, 2010.\7\
---------------------------------------------------------------------------
    \5\Exec. Order 13535, 75 Fed. Reg. 15599 (Mar. 20, 2010).
    \6\The community health centers (CHC) program is authorized under 
section 330 of the Public Health Service Act. Under ACA, the CHC 
program is to receive mandatory funding support (in addition to 
discretionary spending support) over the next five years.
    \7\Office of Management and Budget, Pre-Regulatory Model Guidelines 
Under Section 1303 of the Affordable Care Act (PL-111-148): Issued 
Pursuant to Executive Order 13535 (Mar. 24, 2010) (online at http://
www.whitehouse.gov/sites/default/files/omb/assets/financial_pdf/
segregation _2010-09-20.pdf).
---------------------------------------------------------------------------

         Comparison Between 2009 Stupak Amendment and H.R. 358

    Since its introduction, sponsors and supporters of H.R. 358 
have argued that the legislation closely resembles the 
amendment offered by former Congressman Bart Stupak (D-MI)\8\ 
and passed by the House during the 2009-2010 health reform 
debate.\9\ At best, this is an unintentional misreading of the 
Stupak amendment; at worse, it is an attempt to mislead Members 
into believing that a vote in support of H.R. 358 is a virtual 
instant replay of the debate and vote on the 2009 Stupak 
amendment. As the plain language of H.R. 358 makes clear, this 
is simply not the case.
---------------------------------------------------------------------------
    \8\See, e.g., Internal Memorandum from Committee Staff to Members 
of House Committee on Energy and Commerce, Full Committee Markup on 
February 15, 2011, in which Committee staff state: ``The proposed 
legislation closely mirrors the Stupak-Pitts amendment that was adopted 
during the 111th Congress.''
    \9\For the text of the Stupak amendment, see Congressional Record, 
H12921 (Nov. 7, 2009).
---------------------------------------------------------------------------
    The differences between the two pieces of legislation on a 
number of key issues are stark and meaningful and were 
confirmed by Committee counsel during the full Committee 
markup:

The Stupak amendment limited its reach only to qualified health plans 
        and had no effect on completely private plans\10\
---------------------------------------------------------------------------

    \10\House Committee on Energy and Commerce, Markup of H.R. 358, 
Protect Life Act, et al, 112th Cong., p. 50 (Feb. 15, 2011) (transcript 
of the proceeding).
---------------------------------------------------------------------------
     The ACA distinguishes between ``qualified health 
plans'' and all other health plans. ``Qualified health plans'' 
are those that are part of state insurance exchanges through 
which people who received federal subsidies may purchase 
insurance. Other plans are outside the exchanges, are 
completely private, and do not cover individuals with a federal 
subsidy. H.R. 358 applies its restrictions on coverage of 
abortion services to ``any health plan'' not just to 
``qualified health plans''.

The Stupak amendment limited its reach only to federal funding and 
        insurance coverage of abortion\11\
---------------------------------------------------------------------------

    \11\Id., pp. 66-67.
---------------------------------------------------------------------------
     Proponents of H.R. 358 contend that its central 
focus is the prohibition of federal funding for abortion under 
ACA.\12\ Yet, H.R. 358 goes beyond this goal, including among 
its restrictions on abortion, ``access to'' abortion services. 
This is an undefined term in the legislation that leaves open 
the possibility of a very broad and sweeping interpretation 
that could include a wide variety of activities, ranging from 
the provision of factually accurate information about the 
availability of or limitations on insurance coverage for 
abortion services, the location of available abortion services, 
and procedural requirements applicable to such coverage or 
services, to the provision of transportation services.
---------------------------------------------------------------------------
    \12\See, e.g., the opening statements of Rep. Pitts and Rep. 
Gingrey during the markups of H.R. 358 in which they identify the 
federal funding question as the primary issue to be addressed by the 
legislation.
     Rep. Pitts: ``. . . the Protect Life Act, which, in short, 
would amend the [ACA] to continue the historical practice of 
prohibiting Federal funds from being used on abortion services.'' 
(Subcommittee on Health, House Committee on Energy and Commerce, Markup 
of H.R. 358, Protect Life Act, et al, 112th Cong., p. 3 (Feb. 11, 2011) 
(transcript of the proceeding).
     Rep. Gingrey: ``The Protect Life Act is a piece of 
legislation that seeks to set right what the last Congress got wrong: 
ensure that abortions are not funded by taxpayer dollars. . . . And 
that is the simple crux of the issue here today.'' (House Committee on 
Energy and Commerce, Markup of H.R. 358, Protect Life Act, et al, 112th 
Cong., p. 24 (Feb. 15, 2011) (transcript of the proceeding).
---------------------------------------------------------------------------

The Stupak amendment limited its reach only to state conscience 
        protection laws that deal with abortion\13\
---------------------------------------------------------------------------

    \13\House Committee on Energy and Commerce, Markup of H.R. 358, 
Protect Life Act, et al, 112th 1 Cong., pp. 79-80 (Feb. 15, 2011) 
(transcript of the proceeding).
---------------------------------------------------------------------------
     H.R. 358 expands protection of state conscience 
protection laws to include those that cover health and medical 
services other than abortion, going beyond the scope of both 
ACA Section 1303 and the bill's stated purpose to address 
abortion coverage under the Act.\14\
---------------------------------------------------------------------------
    \14\As introduced, the purpose of H.R. 358 is ``to amend [ACA] to 
modify special rules relating to coverage of abortion services under 
such Act.''
---------------------------------------------------------------------------

The Stupak amendment protected all state laws that address insurance 
        coverage for abortion services--both those that may restrict 
        such coverage and those that may require it\15\
---------------------------------------------------------------------------

    \15\House Committee on Energy and Commerce, Markup of H.R. 358, 
Protect Life Act, et al, 112th Cong., pp. 50-51 (Feb. 15, 2011) 
(transcript of the proceeding).
---------------------------------------------------------------------------
     H.R. 358 protects only state laws that limit 
insurance coverage for abortion. Indeed, it specifically takes 
away ACA's state preemption protection for state laws that 
require such coverage, undoing the law's neutral approach to 
state abortion law.

The Stupak amendment did not contain anv private right of action\16\
---------------------------------------------------------------------------

    \16\Id., p. 52.
---------------------------------------------------------------------------
     H.R. 358 creates a new federal private cause of 
action for health care providers to assert a conscience 
objection to abortion. The new private right of action would 
empower federal courts to reach ``actual'' and ``threatened'' 
violations--both undefined terms--of a new conscience clause 
that is also created in the legislation.\17\ Moreover, H.R. 358 
does not extend similar enforcement rights to health care 
providers that allege discrimination because they provide 
abortion services.
---------------------------------------------------------------------------
    \17\The Congressional Budget Office (CBO) also recognized this 
extension of non-discrimination policy in its cost estimate letter to 
the Committee: ``The bill would . . . expand nondiscrimination rules 
for health care providers that decline to engage in abortion-related 
activities.'' Letter from Douglas W. Elmendorf, Director, CBO to 
Chairman Fred Upton (Feb. 28, 2011).
---------------------------------------------------------------------------

The Stupak amendment did not create any exception to the obligation of 
        hospitals to comply with EMTALA; instead, it left that 
        obligation intact\18\
---------------------------------------------------------------------------

    \18\House Committee on Energy and Commerce, Markup of H.R. 358, 
Protect Life Act, et al, 112th Cong., pp. 53-54 (Feb. 15, 2011) 
(transcript of proceeding).
---------------------------------------------------------------------------
     H.R. 358 creates an exception to the ACA statement 
that nothing in ACA's provisions on abortion are to be 
construed to relieve any health care provider from the 
provisions of EMTALA, requiring appropriate treatment and 
referral for emergency patients, including pregnant women.

                    Analysis and Impact of H.R. 358

    As noted above, ACA's abortion provisions reflect both an 
excruciatingly difficult and delicately balanced compromise 
that was reached during the 2009-2010 health reform debate. 
Clearly, it was no member's first choice. But, in the spirit of 
conciliation and in the broader interest of keeping health 
reform basically intact and on track, we have been willing to 
stand by the law as enacted.
    H.R. 358 would undo this compromise. The overall impact of 
the legislation--to erode the right of choice that is protected 
by the Constitution--is far more expansive than the disruption 
of health reform. In our view, H.R. 358 is part of a larger, 
broad-ranging effort to restrict women's access to reproductive 
health services.\19\ While we are prepared at this time to 
continue to support health reform's abortion provisions, we are 
not prepared to further restrict women's access to this legal 
medical service. Nor are we prepared, in the guise of a debate 
over federal funding of abortion, to allow for limitations on 
the availability of other health services--especially 
contraception and other reproductive health services. H.R. 358 
is designed to achieve both of these goals. As such, we believe 
the legislation makes significant and overreaching changes in 
at least the following three ways:
---------------------------------------------------------------------------
    \19\See H.R. 3, No Taxpayer Funding for Abortion Act; H.R. 217, 
Title X [Family Planning] Abortion Provider Prohibition Act; Amendment 
No. 11 to H.R. 1, Full-Year Continuing Appropriations Act, 2011 
(Congressional Record, H776 (Feb. 14, 2011)) (regarding Planned 
Parenthood); and Amendment No. 182 to H.R. 1, Full-Year Continuing 
Appropriations Act, 2011 (Congressional Record, H786 (Feb. 14, 2011)) 
(regarding the papillomavirus vaccine) for additional examples of 
legislative efforts to curtail women's access to reproductive health 
services.
---------------------------------------------------------------------------

H.R. 358 Would effectively shut down the private insurance market for 
        abortion coverage

    H.R. 358 prohibits the use of any funds authorized or 
appropriated under ACA to pay for abortion or to cover any part 
of the costs of any health plan in an exchange that includes 
abortion coverage--unless the pregnancy is the result of an act 
of rape or incest or is necessary to save the life of the 
woman. Such funds are defined to include both tax credits 
applied toward ACA qualified health plans and ACA cost-sharing 
reductions. This is a wholly new approach to the treatment of 
private health insurance under federal law.
    In effect, these restrictions would preclude any plan 
offering abortion coverage from accepting any customer who 
receives any level of ACA subsidization. This would represent 
the vast majority of the population purchasing private 
insurance through exchanges.\20\
---------------------------------------------------------------------------
    \20\CBO estimates that approximately 63% of all individuals 
participating in state exchanges will receive some level of subsidized 
support. (Letter from Douglas W. Elmendorf, Director, CBO to Speaker 
Nancy Pelosi (Mar. 20, 2010)) (on line at http://www.cbo.gov/ftpdocs/
113xx/doc11379/AmendReconProp.pdf).
---------------------------------------------------------------------------
    The legislation does permit insurance companies 
participating in an exchange to offer a qualified health plan 
for unsubsidized individuals that includes abortion coverage, 
but only under very restrictive conditions. Significant 
administrative requirements must be met and a company offering 
a comprehensive plan must also provide an identical plan that 
excludes abortion coverage. Neither the Health Subcommittee 
hearings nor the legislation has given any attention to the 
complex problems of adverse selection and actuarial soundness 
that such parallel plan requirements pose.
    Similarly, H.R. 358 allows individuals and state and local 
governments to purchase separate abortion coverage--a so-called 
``rider'' policy--so long as this coverage is not purchased 
using ACA authorized or appropriated funds (including ACA tax 
credits and cost-sharing reductions). But as the data clearly 
illustrate, these policies--in the very few states where they 
are even offered--simply do not work.\21\ This point is 
underscored by the testimony of Mr. Douglas Johnson of the 
National Right to Life Committee, who stated at the Health 
Subcommittee hearings: ``Now, there is nothing . . . to stop 
any private individual from going out and purchasing abortion 
coverage with their own resources on the private market if they 
choose to do so. I suspect from the data we have seen that very 
few people do that [emphasis supplied].''\22\ Again, neither 
the hearings nor the legislation has given any attention to the 
practical insurance problems that rider plans raise.
---------------------------------------------------------------------------
    \21\Insurers Report on Use of Abortion Riders, Washington Post 
(Mar. 14, 2010).
    \22\Subcommittee on Health, Committee on Energy and Commerce, 
Hearing on H.R. __, Protect Life Act, 112th Cong., p. 50 (Feb. 9, 2011) 
(transcript of the proceeding).
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    Taken together, then, these provisions establish numerous 
disincentives for companies to provide abortion coverage as 
part of their basic plan--they are administratively burdensome, 
unworkable, and unreasonable. Over and above their practical 
problems, they put private companies at great risk for exposure 
both to severe penalties in the case of a violation and to 
organized boycotts by organizations opposed to abortion. And, 
by requiring that abortion coverage stand separate and alone 
from the comprehensive package of services companies currently 
and routinely offer to their customers,\23\ H.R. 358 
effectively places a stigma--a bull's eye in fact--on a health 
service which remains legal in this country and is regarded as 
medically appropriate by numerous national medical 
organizations.\24\
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    \23\``The best available evidence--based on studies conducted by 
the Guttmacher Institute and the Kaiser Family Foundation--suggests 
that most Americans with employer-based insurance currently have 
coverage for abortion.'' (Guttmacher Institute, Memo on Private 
Insurance Coverage of Abortion (Jan. 19, 2011)).
    \24\See, e.g., statements of the American College of Gynecologists 
and Obstetricians (ACOG Statement of Policy: Abortion Policy); the 
American Medical Association (Statement on Abortion Policy) (on line at 
https://ss13.ama-assn.org/apps/ecomm/PolicyFinderForm.pl?site=www.ama-
assn.org&uri;=%2fama1%2fpub%2fupload%2fmm%2fPolicyFinder%2fpolicyfiles%2f
HnE%2fH-5.995.HTM); and the American Academy of Family Physicians 
(Statement on Reproductive Decisions) (on line at http://www.aafp.org/
online/en/home/policy/policies/r/reproductdecisions.html).
---------------------------------------------------------------------------
    Despite the protestations of H.R. 358's supporters,\25\ we 
believe the net effect of these provisions is, for all 
practical purposes, to shut down the private insurance market 
for abortion coverage. Indeed, as Professor Sara Rosenbaum 
testified at the Health Subcommittee hearing on H.R. 358, ``. . 
. health plans could be expected to exit this optional coverage 
market entirely [emphasis supplied].''\26\ Such a result would 
mean the end of abortion coverage for millions of women and 
their families who already have this insurance benefit and for 
millions of others who would commonly expect it to be part of a 
comprehensive health insurance policy. In turn, families who 
may experience the unanticipated event of abortion could face 
significant out-of-pocket expenses.
---------------------------------------------------------------------------
    \25\At the Health Subcommittee markup, Rep. Waxman offered an 
amendment to set the effective date for H.R. 358 at the time (before 
January 1, 2014, the effective date of health reform) that the 
Secretary of Health and Human Services certifies that the availability 
of abortion coverage in private health plans for individuals who will 
not receive ACA subsidies will not be affected. Members in opposition 
of the amendment argued against its adoption on that grounds that ``. . 
. we see no plausible connection between the availability of abortion 
coverage in the private insurance market and this pending 
legislation.'' (Subcommittee on Health, House Committee on Energy and 
Commerce, Markup on H.R. 358, Protect Life Act, et al., 112th Cong., p. 
87 (Feb. 11, 2011) (transcript of the proceeding)). Supporters of the 
bill cannot have it both ways--if the legislation does not impact the 
availability of abortion coverage in the private market, they should be 
comfortable supporting an amendment requiring the certification of such 
coverage. Their rejection of the Waxman amendment suggests that those 
in opposition are at least skeptical of their own assertions about the 
impact of the legislation on the availability of abortion coverage.
    \26\Subcommittee on Health, House Committee on Energy and Commerce, 
Hearing on H.R. __, Protect Life Act, 112th Cong., p. 37 (Feb. 9, 2011) 
(transcript of the proceeding).
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H.R. 358 Would undercut the purpose of ACA's essential benefits package

    H.R. 358 safeguards state ``conscience-protection'' laws 
(also known as ``refusal-protection'' laws) that speak to 
health and medical services other than abortion--a broad 
extension of ACA's state ``non-preemption'' language. Such laws 
often refer to specific services that are covered; others are 
much wider in scope, allowing for great leeway in how they may 
be carried out.\27\
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    \27\See, e.g., the state conscience protection law for Illinois 
(745 ILCS 70/3 and 70/11.2) which provides for refusal rights in the 
case of family planning (and other) health services, and for 
Mississippi (Miss. Code Ann. Sections 41-107-3 and 41-107-09) and 
Pennsylvania (40 P.S. Section 991-2171) which allow health care 
providers, including health insurers, to refuse to provide or pay for 
any health service as a matter of conscience.
---------------------------------------------------------------------------
    This far-reaching expansion of current law has enormous 
implications for the ACA essential benefits package, the 
contents of which serve as a floor for the coverage that must 
be provided in any qualified plan offered by an insurance 
company in a state exchange.\28\ For example, under ACA, the 
essential benefits package may include coverage of 
contraception services as a minimum standard of insurance. 
Under H.R. 358, however, an insurance company located in a 
state with a sweeping refusal-protection statute in place (or 
one that targets family planning services specifically) could 
try to drop contraceptive coverage from the essential benefits 
package under the protection of that state law. Additionally, a 
state could pass a new law to take advantage of this loophole.
---------------------------------------------------------------------------
    \28\ACA Section 1311(3).
---------------------------------------------------------------------------
    It is unclear whether or not a company would be successful 
in this kind of effort to chip away at the essential benefits 
package. What is clear, however, is that--at best--the state 
conscience protection provisions in H.R. 358 pose a potential 
conflict with ACA's requirements regarding the essential 
benefits package and, at worse, they provide a mechanism 
through which insurance companies could circumvent ACA law. In 
either case, we believe the result is an upending of one of 
most important and fundamental features of ACA--coverage of and 
access to a core set of health care services.
    It bears repeated mention that this is clearly not a 
provision related to abortion. The ACA already prohibits making 
abortion services part of the minimum benefits package and 
protects state laws regarding abortion coverage. Despite the 
bill's misleading title, the legislation is a direct mechanism 
for allowing state laws to trump benefits decisions in areas 
other than abortion.\29\
---------------------------------------------------------------------------
    \29\House Committee on Energy and Commerce, Markup on H.R. 358, 
Protect Life Act, et al., 112 Cong., pp. 76-80 (Feb. 15, 2011) 
(transcript of the proceeding).
---------------------------------------------------------------------------

H.R. 358 Would undermine EMTALA's protections for women with life 
        threatening conditions

    EMTALA establishes three basic obligations for all 
hospitals that participate in Medicare: (1) to screen an 
individual who comes to the emergency department to determine 
whether the individual has an emergency medical condition; (2) 
to stabilize any emergency medical condition in individuals in 
the hospital; and (3) to provide an appropriate transfer to 
another health care facility in some cases. EMTALA does not 
recognize any exceptions to these requirements.\30\
---------------------------------------------------------------------------
    \30\Social Security Act, Section 1867 (U.S.C. 1395dd).
---------------------------------------------------------------------------
    H.R. 358 breaks with this structure and inserts language 
that appears to allow a construction that would place 
``conscience-clause''/''refusal protection'' concerns above 
those of the emergency stabilization and treatment requirements 
of EMTALA. The effect of this language is, at best, ambiguous. 
During the markups on the legislation, Committee staff 
responded to questions from members about this language and 
repeatedly noted that it does not amend the underlying 
provisions of EMTALA.\31\ One interpretation of this response 
is that the basic EMTALA guarantees remain intact and the new 
language in H.R. 358 is cosmetic only and should result in no 
change in policy.
---------------------------------------------------------------------------
    \31\House Committee on Energy and Commerce, Markup on H.R. 358, 
Protect Life Act, et al., 112th Cong., pp. 53-54 (Feb. 15, 2011) 
(transcript of the proceeding); Subcommittee on Health, House Committee 
on Energy and Commerce, Markup on H.R. 358, Protect Life Act, et al., 
112th Cong., pp. 76-79 (Feb. 11, 2011) (transcript of the proceeding).
---------------------------------------------------------------------------
    Another possible interpretation is that this language 
actually makes ``conscience-clause''/''refusal protection'' 
objections predominate over the emergency needs of a 
patient.\32\ If this is the case, H.R. 358 would allow a 
hospital to assert an objection to abortion and turn away 
(without referral or appropriate transfer) a pregnant woman 
whose emergency medical condition requires pregnancy 
termination.
---------------------------------------------------------------------------
    \32\Subcommittee on Health, House Committee on Energy and Commerce, 
Markup on H.R. 358, Protect Life Act, et al., 112th Cong., p. 80 (Feb. 
11, 2011) (transcript of the proceeding).
---------------------------------------------------------------------------
    Sponsors of H.R. 358 claim that this poses no problem since 
EMTALA already recognizes the needs for emergency examination 
and treatment of the woman's ``unborn child.'' This constitutes 
a deliberate misreading of the statute. The effect of the 
reference to ``unborn child'' in the definition of ``emergency 
medical condition'' is that a pregnant woman will be considered 
to have an ``emergency medical condition'' if her health or the 
health of her fetus is in serious jeopardy. The only other 
references to ``unborn child'' in the statute address the 
safety of a transfer for a woman in labor.
    But certainly EMTALA recognizes special needs during 
pregnancy and appropriately so. The practice of turning a 
patient away from a hospital without providing appropriate care 
(commonly known as ``patient dumping'') is as repugnant when it 
endangers a fetus or a newborn just as it is repugnant when it 
endangers an adult. But there are, in fact, medical conditions 
that occur during pregnancy in which termination of the 
pregnancy is one of or, indeed, the only response that will 
save the life of the woman.\33\ It is unfortunately true that 
the medical needs of the woman and her fetus are not always 
parallel or consistent.
---------------------------------------------------------------------------
    \33\Examples of medical conditions that pose a major threat to 
maternal health:
     Pre-eclampsia. According to a standard textbook on 
obstetrics, women with severe pre-eclampsia with a pregnancy of a 
gestational age of under 23 weeks should be offered the option to 
terminate the pregnancy. (Steven Gabbe, Obstetrics: Normal and Problem 
Pregnancies, Fifth Edition, 2007)
     Pulmonary hypertension. The American College of Cardiology 
and the American Health Association expert consensus guidelines 
``recommend that pregnancy be avoided or terminated early in women with 
PAH [pulmonary arterial hypertension].'' (ACCF/AHA 2009 Expert 
Consensus Document on Pulmonary Hypertension: A Report of the American 
College of Cardiology Foundation Task Force on Expert Consensus 
Documents and the American Heart Association Developed in Collaboration 
with the American College of Chest Physicians; American Thoracic 
Society, Inc.; and the Pulmonary Hypertension Association (Mar. 30, 
2009)) (on line at http://
content.onlinejacc.org/cgi/content/ful1/53/17/1573).
---------------------------------------------------------------------------
    Indeed, religious organizations, seeking to provide 
guidance to their adherents, have struggled with these issues. 
A recent and well-publicized case of a pregnant woman with 
pulmonary hypertension dramatizes the ongoing nature of the 
problem.\34\ Theological debates continue about such topics as 
``intended'' termination of pregnancy, about the ``direct 
purpose'' of a procedure or of a ``proportionately serious'' 
condition.\35\
---------------------------------------------------------------------------
    \34\Hospital Nun Rebuked for Allowing Abortion in Phoenix, USA 
Today (May 18, 2010) (on line at http://www.usatoday.com/news/religion/
2010-05-18-nun-abortion_N.htm?loc= interstitialskip).
    \35\See U.S. Conf. of Catholic Bishops: Committee on Doctrine, The 
Distinction Between Direct Abortion and Legitimate Medical Procedures, 
(June 23, 2010) (on line at http://www.usccb.org/doctrine/direct-
abortion-statement2010-06-23pdf).
---------------------------------------------------------------------------
    But the appropriate venue for such debates is theological 
circles and ethics committees, not an ambulance or an emergency 
room. Under current law, if a hospital does not have the 
facilities or personnel to provide appropriate treatment to a 
patient, the hospital may nonetheless undertake an appropriate 
transfer with appropriate informed consent. What is forbidden 
is abandoning the patient--for any reason.
    We believe that one interpretation of the bill's amendment 
to the rule of construction of EMTALA would allow exactly that 
result--abandonment of the patient. It would allow a hospital 
to assert a religious objection to the medically necessary 
termination of a pregnancy and leave her without rights of 
transfer or referral.
    We want to be clear: No one has identified a problem that 
this provision of the bill is supposed to solve. Indeed, the 
Catholic Health Association has told the Congress that it has 
worked successfully within the current requirements of EMTALA 
for years and that they do not support this change.\36\ Since 
these hospitals, which have clear objections to abortion 
services, are living within the terms of the law now, we would 
expect Catholic hospitals to continue to do so--regardless of 
whether H.R. 358 gives them the unrequested legal permission to 
abandon patients. But as Members of Congress who also have a 
conscience and moral principles, we cannot agree that such 
permission to abandon patients should be granted in the law.
---------------------------------------------------------------------------
    \36\Letter from Sr. Carol Keehan, DC, President and CEO, Catholic 
Health Association of the United States to Rep. Joseph R. Pitts (Feb. 
9, 2011).
---------------------------------------------------------------------------

        Failure To Articulate Constitutional Basis for H.R. 358

    In addition to our objections to the substance of the 
legislation, we must also protest the manner in which 
Republican members of the Committee have flouted their own 
newly adopted rules of the House regarding statements of 
constitutional authority. This is the first piece of health 
legislation considered in the new Congress after the adoption 
of the new rules. Yet the sponsor did not meet requirements set 
forth in the new House rule requiring the filing of a statement 
stating the specific constitutional authority for the bill.
    If this were a routine bill, we would probably be inclined 
simply to note the hypocrisy of enacting a rule one month and 
violating it the next. But this is not a routine bill. As noted 
above, this is a piece of legislation that reaches fundamental 
constitutional protections and unduly burdens them with 
substantial obstacles.
    The new addition to the House Rules is found in clause 7 of 
rule XII. It provides: ``A bill or joint resolution may not be 
introduced unless the sponsor submits for printing in the 
Congressional Record a statement citing as specifically as 
practicable the power or powers granted in the Constitution to 
enact the bill or joint resolution.''
    The guidance supplied by the House Rules Committee on how a 
member is to comply with this new rule provides a number of 
illustrative examples, each of which makes very specific 
reference to a provision of the Constitution or to one of the 
amendments to the Constitution. They include the following 
examples:
     ``The constitutional authority on which this bill 
rests is the power of the Congress to make rules for the 
government and regulation of the land and naval forces, as 
enumerated in Article I, Section 8, Clause 14 of the United 
States Constitution.
     ``This bill is enacted pursuant to Section 2 of 
Amendment XV of the United States Constitution.
     ``This bill is enacted pursuant to the power 
granted to Congress under Article I, Section 8, Clause 3 of the 
United States Constitution.
     ``The Congress enacts this bill pursuant to Clause 
1 of Section 8 of Article I of the United States Constitution 
and Amendment XVI of the United States Constitution.
     ``This bill makes specific changes in existing law 
in a manner that returns power to the States and to the people 
in accordance with Amendment X of the United States 
Constitution.''
    The guidance of the House Rules Committee on Compliance 
with the rule states that ``the adequacy and accuracy of the 
citation of constitutional authority is [a] [sic] matter for 
debate in the committee and in the House.''
    Moreover, the Frequently Asked Questions guidance provided 
by the House Rules Committee provides:
    ``Q: So why have this Rule at all?
    ``A: Just as a cost estimate from the Congressional Budget 
Office informs the debate on a proposed bill, a statement 
outlining the power under the Constitution that Congress has to 
enact the proposed bill will inform and provide the basis for 
debate. It also demonstrates to the American people that we in 
Congress understand that we have an obligation under our 
founding documents to stay within the role established therein 
for the legislative branch.''
    So the requirements of the new rule are clear: make 
reference to the Constitution as specifically as practicable. 
The examples are clear: they cite articles, sections, clauses 
and amendments directly and by number. And the rationale is 
clear: this is to inform the debate on a bill and to show the 
American people that we understand our role. Over and above 
that, the venue for debate on this statement is clear: the 
committee and the House.
    Thus, it came as some surprise that the statement of 
constitutional authority for H.R. 358 cites no provision of the 
Constitution or any amendment to the Constitution.\37\ None. 
And, while a debate on the ``adequacy and accuracy'' of the 
statement was attempted in the both Health Subcommittee and 
full Committee markup, Republicans shut off debate and ruled it 
out of order. Therefore, the statement did not ``inform and 
provide the basis for debate.'' Most significantly, it did not 
demonstrate ``to the American people that we in Congress 
understand that we have an obligation under our founding 
documents to stay within the role established therein for the 
legislative branch.''
---------------------------------------------------------------------------
    \37\The statement on the constitutional authority for H.R. 358 
reads: ``Congress has the power to enact this legislation pursuant to 
the following: The Protect Life Act would overturn an unconstitutional 
mandate regarding abortion in the Patient Protection and Affordable 
Care Act.'' (Statement of Rep. Pitts, Congressional Record, H396 (Jan. 
20, 2011)).
---------------------------------------------------------------------------
    This should matter to all members, regardless of their 
views of this particular legislation. If we believe the new 
rule helps the process of legislation, guides our decisions, 
and demonstrates responsibility to all Americans, then the 
statement accompanying this bill and the process used to 
discuss it make a mockery of the rule.
    This is especially important because, with this 
legislation, the Congress is stepping far beyond its 
``obligation under our founding documents to stay within the 
role established therein for the legislative branch.'' As 
discussed above, this legislation intrudes into the realms of 
personal privacy that the Supreme Court has said are protected 
by the Constitution. The legislation places an undue burden on 
this fundamental right to privacy, and it erects barriers to 
abortion services that are far beyond any previous laws, that 
will have a severe impact, and that are without justification.
    This is exactly the situation in which the new rule would 
have proven truly useful. The statement of constitutional 
authority submitted by the author of the bill would have had to 
ignore or distinguish a long list of Supreme Court opinions 
about the limits on legislation in this area. Instead, the 
statement actually filed is factually incorrect, vague, and 
tautological. The Republicans have failed entirely to address 
the fundamental concern that Congress does not have the 
constitutional authority to enact H.R. 358.

                                   Henry A. Waxman.
                                   Anna G. Eshoo.
                                   Charles A. Gonzalez.
                                   Anthony D. Weiner.
                                   Lois Capps.
                                   Jane Harman.
                                   Gene Green.
                                   Jan Schakowsky.
                                   Diana DeGette.
                                   Jay Inslee.
                                   John Barrow.
                                   Frank Pallone, Jr.
                                   Doris O. Matsui.
                                   Edward J. Markey.
                                   Eliot L. Engel.
                                   Edolphus Towns.
                                   Tammy Baldwin.
                                   Bobby L. Rush.
                                   G.K. Butterfield.
                                   John D. Dingell.
                                   Mike Doyle.