Parker: Federally funded abortions are in Americans’ future

By Kathleen Parker

Health care is the next-to-last thing I want to write about. The last thing is abortion, so this column is a banquet of tortures.

Still cloudy is whether the new law of the land allows funding for abortions and whether President Barack Obama's executive order is of any real (judicially enforceable) value. The answer to the latter is in little dispute. It is No. An executive order cannot override a statute.

As to the funding issue, well, it's intentionally complicated. And it shouldn't be.

Defenders argue that: (1) nowhere does the bill say funds will go toward abortion; (2) the Hyde Amendment, which prohibits federal funding for abortion, applies.

Both are true - up to a point. The issue isn't what the bill says; it's what it doesn't say.

No one should apologize for being confused. If not for the patient tutoring of brilliant lawyers, Capitol Hill staffers, medical experts and others, I would be hugging my knees muttering “Who's Jacob?” and “Ibid, Subsection C (1)(a).”

To the first argument: Of course the bill doesn't explicitly state that it appropriates abortion funding. It takes pains to use terminology that seems to explicitly forbid it. But other areas are swampier. And, indeed, funds could be used to pay for abortion under circumstances that predictably will evolve.

History and precedent tell us this much.

For one thing, the Hyde Amendment is a rider that must be lobbied and attached each year to the annual Labor/Health and Human Services appropriations bill. Under its terms, the amendment applies only to those funds.

Rather than following the usual course of funding community health centers, or CHCs, through the Labor/HHS budget, the health care reform measure does an end run around Hyde by directly appropriating billions of dollars into a new CHC fund.

Because the Obama administration's “fix-it” bill did not include the abortion-ban language proposed by Rep. Bart Stupak, D-Mich., those billions appropriated to CHCs simply are not covered by Hyde.

Now, the president's executive order purports to address this gap by extending the Hyde Amendment to these dollars as well. The problem is that, regardless of Obama's stated intentions, he can't actually do this without an act of Congress.

Several supporters of the bill have argued that this debate is otherwise irrelevant because abortions aren't performed at CHCs. While true, this doesn't mean that CHCs wouldn't like to offer abortion among their reproductive services.

Under the new law, they can.

Here's why. By statute, CHCs are required to provide all “required primary health care services,” defined to include “health services related to ... obstetrics or gynecology that are furnished by physicians.”

Federal courts long have held that when a statute requires provision of health services under such broad categories, then the statute must be construed to include abortion unless it explicitly excludes it.

One may believe that poor women should have affordable access to abortion. This is a reasonable position and it is likely to be the result of this bill. But it is not what Americans have been led to believe is true, nor is it what most want. A January Quinnipiac University poll found that 67 percent of Americans oppose public funding for abortion, down from

72 percent in December.

Prediction: Abortions will be performed at community health centers. There was always a will by this administration, and now there's a way.

n Comments: kathleenparker@

washpost.com