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March 31, 2010 |
Legal Analysis of the Provisions of the Patient Protection and Affordable Care Act and Corresponding Executive Order Regarding Abortion Funding and Conscience Protection
The purpose of this legal memorandum is to identify the problems of the recently-passed Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (“PPACA” or “the Act”), in relation to abortion funding and conscience protection, and then to assess whether (and if so, how) the corresponding Executive Order of March 24, 2010, corrects those problems. Although we wish it were otherwise, we must conclude that PPACA poses serious problems in these two areas, and that the Executive Order does not correct those problems. You can read the Conclusion below, or click here to read the entire Memorandum (PDF).
Conclusion
In sum, the Executive Order cannot and does not fix the statutory problems of direct funding of abortion at CHCs, and of funding insurance plans that cover abortions; it cannot and does not make up for the absence of conscience protections that are missing from the statute; and it does not strengthen the conscience protections that are there, though it could have in certain limited ways. Where the Order purports to fix a shortcoming of the Act in these areas, it is highly likely to be legally invalid; and where the Order is highly likely to be legally valid, it does nothing to fix those shortcomings.
Thus, the shortcomings of the Act remain, and correspondingly, the need for fixes remains. Only Congress, with the consent of the President, has the legal authority to make those fixes. Congress and the President should act promptly to do so; they should not await courts’ likely invalidation of the few provisions of the Executive Order that even purport to be fixes.
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