Fungibility
by digby
The House just passed the heinous HR3 on a party line vote (a handful of anti-abortion Democrats voted for it too) but there’s little likelihood of it passing in its current form in the Senate or that President Obama will sign it. But they did manage to get some useful bargaining chips in the language to keep liberals tied up in knots and ensure that Democrats will be able to take credit for “holding out” on something important when they all vote for the rest of the mess:
They’re doing it again: After jettisoning controversial legislative language narrowing the definition of rape for the purposes of abortion law, House Republicans are attempting a backdoor maneuver to ensure that solely victims of “forcible rape” are eligible for federal funding if they seek abortions. In February, Republicans drew widespread condemnation for their “forcible rape” proposal, which legal experts said would have excluded statutory rape victims and others from obtaining abortions through Medicaid. Amidst public outcry and a protest campaign by left-leaning groups, Republicans abandoned the language, which had been included in the “No Taxpayer Funding for Abortion Act,” a bill the GOP leadership numbered H.R. 3 to signify its high priority to the party. But while they’ve amended their legislation, which faces a floor vote in the House on Wednesday, Republicans haven’t stopped trying to narrow the already small exception under which federal funding for abortions is permissible. They’ve used a sly legislative maneuver to make sure that even though the language of the bill is different, the effect remains the same.The backdoor reintroduction of the statutory rape change relies on the use of a committee report, a document that congressional committees produce outlining what they intend a piece of legislation to do. If there’s ever a court fight about the interpretation of a law—and when it comes to a subject as contentious as abortion rights, there almost always is—judges will look to the committee report as evidence of congressional intent, and use it to decide what the law actually means. In this case, the committee report for H.R. 3 says that the bill will “not allow the Federal Government to subsidize abortions in cases of statutory rape.” The bill itself doesn’t say anything like that, but if a court decides that legislators intended to exclude statutory rape-related abortions from eligibility for Medicaid funding, then that will be the effect.
“There is absolutely no legal basis to this claim,” says George Washington University’s Sara Rosenbaum.“Unfortunately, it is sometimes the practice on Capitol Hill for Members of Congress and their staffs to use [committee] reports…to try to manipulate the meaning of the language passed by Congress,” says Ann O’Leary, a lecturer at the University of California-Berkeley’s law school who served as Hillary Clinton’s legislative director when Clinton was in the Senate. “It is clear here that the committee report tries to narrow the meaning of rape.”
We’ve been through what this is all about before. David Waldman spelled it all out a couple of days ago. Sure, they are setting the stage for a possible court case should this law ever see the light of day down the road. But there a much bigger strategy at play.
While we are busy battling back the redefinition of rape and God knows what else they put in there to keep us busy, this may be the thing that survives:
In H.R. 3, Republicans revive the mid-90s “Istook amendment” theory of the fungibility of money to include under their definition of “taxpayer funding for abortion” all tax deductions, credits or other benefits for the cost of health insurance, when that insurance includes under its plan coverage for abortion.
So if a company provides health care benefits for its employees, and the plan they pay for includes coverage for abortion, the company becomes ineligible for the normal federal tax deductions and credits that are the usual reward for providing benefits. That’s a gigantic tax increase. If you pay for your own coverage directly, no deductions, credits, etc. for you, either, if the plan you select offers abortion coverage. Whether you or someone on your plan ever gets one or not. All deductions associated with your health care costs are disallowed.
That, apparently, will impact approximately 87 percent of private insurance plans on the market today….
[T]he fungibility theory underlying the bill has been in the Republican bag of tricks since at least 1995...
And by the way, there’s no difference or barrier between targeting abortion and doing the same in the future for benefit plans that cover contraception.
Or for that matter, chiropractic or other medical alternatives. Or medicine in general. (Ask a Christian Scientist about that.)
Or, I suppose, prohibiting the use of federal funds granted to local police departments that might be dispatched to respond to emergencies at that company.
Frankly, I’m not sure why, under this theory, individuals should even be eligible for federal tax deductions, credits, etc. if they make private purchases from such a targeted company. After all, all money being fungible, it could well be said that you’re using “federal dollars” that are in your pocket by virtue of any tax deduction you take (whether related to health care or not) when you buy products from such a company, and that those “federal dollars” are going into the coffers of a company that uses them fungibly with the dollars they’re using to pay for their health care plan.
And this theory could, conceivably, be applied to anything that their voters believe the government shouldn’t be funding. And by voters, I mean corporations and wealthy donors as well as religious zealots. On the right it’s impossible to know where one begins and the other ends.
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