Ever since the U.S. Senate voted in December to provide new funding for Federally Qualified Health Centers in its version of health care reform, analysts have pointed out that these monies are not covered by the Hyde Amendment, the measure dating from 1976 that sharply limits federal financing of abortion. As a consequence, these new funds appropriated by the Senate bill, which is now being moved through the House of Representatives by an extraordinary legislative device, are available without statutory limit to underwrite elective abortions.

Yesterday the Obama Administration issued a internal memorandum from the Department of Health and Human Services (HHS) attempting to undercut this conclusion. The memo states that even in the absence of the statutory prohibition contained in the Hyde Amendment, longstanding regulations in place at HHS would “prohibit federal funds from being used for abortion services.” The memo notes that “[t]he president and Secretary [of HHS Kathleen] Sebelius have repeatedly stated their strong commitment to ensuring that health insurance reform does not change the status quo on abortion policy.”

The HHS memo has little or no status as a matter of law. It amounts to the issuance of another promise that legislators and citizens can evaluate on the merits. Because the regulations cited in the memo would be applied voluntarily by HHS to any funds not included in a future appropriations measure containing the Hyde Amendment (the FQHC funds appropriated by the Senate bill cover five full years of spending), HHS would not be obligated to apply the standards of the Hyde Amendment to these funds. The flexibility of federal agencies to expand or limit reasonable interpretations of the law has been demonstrated both in the context of abortion policy in federally funded family planning clinics and in the Obama administration’s rescission of conscience regulations last March.

The Obama administration’s argument also relies on a press release from the National Association of Community Health Centers, which asserted that these centers “do not plan to, nor are they seeking to, become providers of abortion.” While the release may have been issued in good faith, it has no policy force with respect to the nation’s 1,250 FQHCs. These centers, moreover, are under intense public scrutiny at a moment of decision on the President’s “signature” domestic policy issue. It is more instructive to look to their views when that scrutiny was largely absent.

In 2009 First Lady Michelle Obama paid her first visit to a nonprofit organization in the nation’s capital – choosing a clinic network called Mary’s Center. The Center is an FQHC and it focuses on promoting “healthy pregnancies, improv[ing] birth outcomes, and reduc[ing] infant mortality.” While Mary’s Center does not publicize a policy on providing abortion, its President/CEO Maria S. Gomez proudly lists on her official biography her receipt of the 2002 “Champions of Choice” Award from Planned Parenthood of Washington, D.C., a major area abortion provider. The award is given each year to an advocate of “choice,” a standard locution for abortion.

More significantly, key personnel from Mary’s Center were participants in a 2001 National Consortium convened by the National Abortion Federation. The Consortium issued a report titled “Increasing Access to Abortion for Women in Diverse Communities.” The report issued formal recommendations for policy changes. The singular domestic policy change: repeal of the Hyde Amendment. The report described this recommendation as “the universal consensus at the Consortium.” With passage of the Senate bill and signature by the President, the Consortium will be well on its way to that goal.

You can read Part One here.