As Mel Brooks sang in The Producers, "If you got it, flaunt it". The radical right wing of the Republican Party (which these days is most of the Republican Party) did that over and over in two hearings on HR #3 and HR #358, which attack reproductive rights. In their usual way, they were all smarmily singing loudly and from the same page.
What did they flaunt? They revealed how they plan to undo Roe v. Wade. They made it clear what weapon they plan to use and in what arena, which we, the pro-choice movement, have for too long abandoned. All the weapons they need are there, and we left them there for the right to pick up and use to beat us up.
The visible weapons are
THE HYDE AMENDMENT.
LEGISLATION REMOVING FEDERAL FUNDS.
The "hiding in plain sight" weapons are
THE "LET WOMEN DIE" PROVISIONS;
THE ENFORCEMENT MECHANISMS;
INJUNCTIONS STOPPING ANY AND ALL FEDERAL FUNDS TO ANY AND ALL STATES, CITIES PROGRAMS OR AGENCIES.
They will attempt to first eliminate every women's access to abortion while also beginning their assault on all Americans' access to birth control. Yes indeedy, birth control is now in the crosshairs!! Certainly, that is what the Pence bill defunding Planned Parenthood is all about. Title X funding disburses money for women's health in general - pap smears, mammograms. And yes, that includes birth control or family planning, something that is now bizarrely controversial. Basically, health care for millions and millions of women.
But they do not plan on stopping there. The theory is throw as many bills against the wall as possible, with a lot of similar and dangerous elements. Then watch which elements they attach to which bill as they try through a variety of legislative maneuvers to paint the Senate into a corner, while the President keeps silent. To these extremists Republicans, his present silence means consent. That is certainly how they will propagandize it.
HR #3, NO TAXPAYER FUNDING FOR ABORTION AND HR #358, PROTECT LIFE ACT, aka LET WOMEN DIE ACT
Those were two subcommittee hearings in the House. On Tuesday the 9th, the Subcommittee of the Judiciary Committee with Chair Trent Franks convened on HR #3. The hearing for HR #358 was held on Wednesday the 10th in the Health Subcommittee of Energy and Commerce with Joe Pitts, Chair. At each hearing, two anti-choice witnesses were invited but only one pro-choice witness. Sara Rosenbaum of GW University was the pro-choice witness for both hearings. She testified on the impact this legislation would have on the subsequent availability of health insurance with abortion. To be precise: there would be NONE. If passed, HR #3 eliminates private and employer provided insurance for abortion coverage. 87% of all employer plans cover abortion. 90% of all insurance access to abortion coverage would be eliminated. Tens of millions of women and families would lose access to abortion.
Who needs the public's boomerang reaction to overturning Roe, when you can eliminate abortion quietly while people don't yet notice?
One of the many awful provisions in HR #3 is turning the various Hyde restrictions in the numerous appropriations bills into permanent law that will reach far beyond where it gets now. Presently, the Hyde restrictions have to be passed via the appropriations process - from poor women in HHS to military and veteran women to Federal employees and even into Medicare for disabled women. Codification would not only make it permanent but extend its reach - to the tax code in their view of the world.
Unfortunately, the Democrats have spent 30 years not fighting the Hyde amendment. 30 years of quiet acquiescence, with often only a one sentence demurral by those of us who oppose Hyde. Silence can mean consent in many minds.
Anti-Choice witnesses Richard Doerflinger of the U.S. Conference of Catholic Bishops and Cathy Ruse with the Family Research Council at HR #3 hearing and Helen Alvere of George Mason University and Douglas Johnson with National Right to Life at the HR #358 hearing repeatedly touted the "universal" agreement that Hyde is correct. Even Democrats who purportedly call themselves pro-choice, they asserted, agree with the policy that there should be no federal funds for abortion. Silence can mean consent.
In an excruciating display of fakery, the four of them lauded President Obama's support for, in the President's own words, the 'federal tradition" behind Hyde. One of the congressmen, Michael Burgess (R-TX), even said that this bill was doing the President a favor by putting forward a bill ( HR #358) to make doubly sure that there would be no taxpayer money going for abortions!!!
Do not underestimate the political value of invoking a Democratic president. It will loom large as the battle progresses. At the Democratic press conferences about the two bills, Democrats boldly stated that in no way would the President sign either bill. Apparently, their strategy was hoping such statements would make the President make it clear how repugnant these bills are. Unfortunately when David Axelrod was asked by Chris Bowers about these bills, rather than a strong statement condemning them, Axelrod acted like he wanted this to just evaporate into the air.
To this day, we try to protect ourselves from one assault after another by only dealing with the technicalities, with little success. The right has now found a vein of attack that they can mine over and over. They can use funding issues and the tax code to launch one after another. If this one doesn't work, they can find another. It is a very rich vein....a veritable Silver City lode of potential attacks.
As David Waldman writes, "H.R. 3 hides even bigger dangers than redefinition of rape".
" Take the rape provisions out, and you're left with a bill that paves the way for using the tax code to select every American's health care options for them, direct from Washington."
So what is hiding in plain sight? The remedies sections of both bills are a veritable cornucopia of ways to control women's access to all reproductive rights - from abortion to birth control. Ironically, the right's anathema to lawsuits stops when they can use them to have a veto over everyone else's rights.
Both bills have sections entitled Non-Discrimination and Remedies. Doerflinger and Johnson kept coming back to what they euphemistically call "conscience provisions" in their testimonies. They were very wedded to them. WHY? Because without them, they could not get what they wanted: the most draconian, onerous and sweeping anti-choice legislation in forty years.
It's been coming, in bits and pieces, all over the country. For example, the recent South Dakota bill that effectively made legal the intent to kill abortion providers or bills which redefined rape to the bruised, battered and bloody standard. Their radicalism knows no bounds, but under some level of mainstream outrage these bills have then been dialed back.
But most outrageously, they have not dialed back the segment of HR #358. That bill was marked up on Friday the 12th, but they kept the section that effectively lets women die in emergency rooms.
A bit of backstory: currently, all hospitals in America that receive Medicare or Medicaid funding are bound by a 1986 law known as EMTALA to provide emergency care to all comers, regardless of their ability to pay or other factors. Hospitals do not have to provide free care to everyone that arrives at their doorstep under EMTALA -- but they do have to stabilize them and provide them with emergency care without factoring in their ability to pay for it or not. If a hospital can't provide the care a patient needs, it is required to transfer that patient to a hospital that can, and the receiving hospital is required to accept that patient.
In the case of an anti-abortion hospital with a patient requiring an emergency abortion, ETMALA would require that hospital to perform it or transfer the patient to someone who can. (The nature of how that procedure works exactly is up in the air, with the ACLU calling on the federal government to state clearly that unwillingness to perform an abortion doesn't qualify as inability under EMTALA. That argument is ongoing, and the government has yet to weigh in.)
Pitts' new bill would free hospitals from any abortion requirement under EMTALA, meaning that medical providers who aren't willing to terminate pregnancies wouldn't have to -- nor would they have to facilitate a transfer.
The hospital could literally do nothing at all, pro-choice critics of Pitts' bill say.
They kept that exemption. As awful as it sounds to refuse to save a woman's life, it's still there, as is a similar provision in HR #3.
Why? Because it allows any anti-choice zealot to launch one lawsuit after another to claim discrimination. Pay close attention to these wording below that give the anti-choice activists a wide berth to control women's reproductive health:
HEALTH CARE ENTITY - note how vague and broadly defined that is. A disgruntled nurse, or receptionist, hospital bookkeeper, it is so broadly written. There must be thousands of such anti-choice health care "entities".
ACTUAL OR THREATENED - Threatened????? What could the word "threatened" possibly encompass? A policy, a mailer on hospital emergency procedures making reference to EMTALA? A training schedule for interns or residents on abortion procedures and many more?
Would there even need to be actual instance of supposedly forcing someone to do a procedure or hand out birth control they disapprove of? No, it may be quite sufficient to apply for a job where abortions are done, announce you are anti-choice and then bring a lawsuit when you don't get hired. George Bush's last executive order (which was just rescinded), actually had just such provisions.
PRIVATE PARTY RIGHT OF ACTION This is the BIGGIE. The Non Discrimination and Remedies sections in both bills (I use HR #3 below) have enforcement mechanisms ranging from utilizing the HHS to the US Attorney General. Those would require anti-choice presidents to direct the agencies. However, both bills have private party right of action. The National Right to Life Committee, or Focus on the Family or the Live Action folks who have long targeted Planned Parenthood clinics are just waiting to spring into action. They can plant themselves into situations in which they are" threatened" with discrimination because they are anti-choice, let thousands of lawsuits bloom while they shop for the right anti-choice judge(s)
ENJOINING ALL FEDERAL FUNDS. Their biggest weapon of all. Draconian. If a judge finds for the plaintiff, the anti-choice fanatic, then that judge can, with only one violation enjoin all federal funds. The injunction would not be limited to health care funds. They could stop education funds or transportation funds or law enforcement funds> To whom? To anybody and everybody, basically. That's how vague the bill has been written. They could, with the cagiest plaintiffs attorneys work to enjoin all federal funds for the state of New York, the City of New York, the NYPD or all the school districts in NY State over a single lawsuit over a single woman's reproductive requirements.. Likely? Perhaps not, but these are activists committed to ensuring that not one woman in this country gets an abortion and their actions over the last forty years have certainly shown that the ends justify all means.
...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
To say that would be chilling would be an understatement. Sub-zero would be more like it. What state government could stand on a woman's right to an abortion with Medicaid or at a hospital if ALL federal funds could be stopped? What hospital would keep training doctors if all federal funds from Medicaid to Medicare would be withheld?
Funding has become the dangerous back door that will de facto overturn Roe v. Wade
HR #3 ENFORCEMENT SECTIONS: SEC. 311. NO GOVERNMENT DISCRIMINATION AGAINST CERTAIN HEALTH CARE ENTITIES.
`(a) Nondiscrimination- A Federal agency or program, and any State or local government that receives Federal financial assistance (either directly or indirectly), may not subject any individual or institutional health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.
`(b) Health Care Entity Defined- For purposes of this section, the term `health care entity' includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.
`(1) IN GENERAL- The courts of the United States shall have jurisdiction to prevent and redress actual or threatened violations of this section by issuing any form of legal or equitable relief, including--
(A) injunctions prohibiting conduct that violates this section; and
`(B) orders preventing the disbursement of all or a portion of Federal financial assistance to a State or local government, or to a specific offending agency or program of a State or local government, until such time as the conduct prohibited by this section has ceased.
`(2) COMMENCEMENT OF ACTION- An action under this subsection may be instituted by--
`(A) any health care entity that has standing to complain of an actual or threatened violation of this section; or
`(B) the Attorney General of the United States.