H.R. 358: Protect Life Act

H.R. 358

Protect Life Act

Rep. Joe Pitts

October 13, 2011 (112th Congress, 1st Session)

Staff Contact
Sarah Makin

Floor Situation

On Thursday, October 13, 2011, the House is scheduled to consider H.R. 358 under a rule.  The rule would provide for one hour of general debate equally divided and controlled by the chair and ranking minority member of the Committee on Energy and Commerce and for a motion to recommit with or without instructions.

The bill was introduced by Rep. Joe Pitts (R-PA) on January 20, 2011, and referred to the Committee on Energy and Commerce.

Bill Summary

H.R. 358 would amend the Patient Protection and Affordable Care Act (PPACA) to prevent federal funding of abortion or abortion coverage.  It would also ensure that nothing in PPACA can be construed to require coverage of, or access to, abortion and to ensure that nothing in PPACA allows anyone implementing PPACA to require “coverage of, access to, or training in abortion services.”

The bill would contain a limitation on funding for abortion and abortion coverage (life of the mother, rape and incest exceptions) consistent with the policies applied to Medicaid, the Federal Employee Health Benefits Program, and other federal programs.

H.R. 358 would state that no funds authorized or appropriated by PPACA, including tax credits and cost-sharing reductions, may be used to pay for abortion or abortion coverage except in cases of rape, incest, or to save the life of the mother.

The bill would also specify that any non-federal entity (including individuals and state or local government) may purchase a separate elective abortion rider, or may purchase insurance coverage that includes elective abortion, so long as the coverage is not paid for with PPACA funds, and is not paid for using individual, state or local funds required to receive federal financial assistance.

The bill would provide that insurance issuers may offer health plans that include elective abortion and may offer separate elective abortion riders, so long as they ensure PPACA funds are not used for premiums or administrative costs.  The legislation would clarify that issuers who offer elective abortion coverage must also offer a qualified health benefits plan that is identical except that it does not cover elective abortion.

H.R. 358 would ensure non-preemption of state laws “protecting conscience rights, restricting or prohibiting abortion or coverage or funding of abortion, or establishing procedural requirements on abortion.”  For the provision regarding federal laws, a technical reference is included to ensure there is no conflict between this provision and the “Hyde-Weldon” conscience provision that was added to the Hyde amendment in FY2005.

The bill would state that federal programs and state or local governments that receive federal financial assistance under PPACA may not subject any health care entity to discrimination or require any health plan to subject any entity to discrimination on the basis that the entity refuses to (A) undergo training in abortion, (B) require or provide such training, (C) perform, participate in, provide coverage of, or pay for abortions, or (D) provide referrals for training or abortion.

The bill would define “health care entity” to include individual health care professionals, hospitals, insurance plans, or any other kind of health care facility, organization or plan.

The bill would designate the Office for Civil Rights (OCR) at the Department of Health and Human Services to receive complaints and pursue investigations in coordination with the Attorney General.  Under conscience regulations issued in January 2009, OCR is designated to receive complaints.  

Finally, the Protect Life Act would require the Director of the Office of Personnel Management to ensure that no multi-state plan covers elective abortion.


According to the House Committee on Energy and Commerce House Report 112-040, PPACA does not contain comprehensive anti-mandate provisions with respect to abortion for qualified health benefits plans, nor does it clearly prohibit other methods of mandating abortion coverage—such as through preventive care requirements.

PPACA establishes “allocation accounts” to segregate federal funds from premium funds that can be used for abortion coverage.  Under this system, the plan issuer is required to collect the enrollee's portion of the premium in two payments.  One payment goes into an account for abortion coverage and the other payment goes into an account for all other coverage. This has sometimes been referred to as the “abortion surcharge.”

PPACA requires the Director of the Office of Personnel Management to ensure that one multi-State plan does not cover elective abortion, while allowing all others to offer plans that do cover abortion.  Individuals who prefer the overall coverage in a plan that covers elective abortion must write a check to pay the abortion surcharge in order to take advantage of the coverage in that plan.  A significant dilemma arises, however, when individuals who have a strong moral objection to abortion are forced to directly finance abortion coverage in order to purchase a health care plan they believe best provides for their needs and the needs of their family members.  The Protect Life Act, by contrast, does not permit the use of any taxpayers' funds to subsidize abortion coverage.

Article 1, Section 8 of the United States Constitutions provides to Congress the power to allocate federal funds, and by extension the power to limit federal funding for certain activities.  PPACA contains a definition of services that hinges on the Hyde amendment being retained each year through the appropriations process.  This leaves the door open for the Hyde limitations to be dropped by a determined majority in one chamber of Congress or by a presidential veto.  The Protect Life Act provides greater certainty that the Hyde limitations will continue to apply to PPACA.

After passage of PPACA, the President signed an Executive Order to address certain concerns about abortion funding.  While there are different views about the effect of the Executive Order, it should be noted that a sitting president can change his mind and rescind it, a future president can have a different opinion, or opponents of the Executive Order can prevail in court by arguing that certain elements of the Executive Order do not have a sufficient legislative foundation to survive.  The Protect Life Act provides greater certainty and permanence than any Executive Order.

The legislation also provides for increased conscience provisions in the law.  The Committee is aware that a significant number of physicians would likely leave the medical profession rather than compromise their beliefs by performing acts they believe to be unethical, undermining access to care for significant numbers of patients. The Protect Life Act will allow these professionals to continue their work without concerns in this area.


The Congressional Budget Office (CBO) estimates that implementing H.R. 358 could affect direct spending; therefore, pay-as-you-go procedures apply.  However, because H.R. 358 overlaps current federal and state laws, CBO expects that enactment would have little effect on coverage offered by qualified health plans.  Consequently, CBO estimates that the federal budgetary effects would be negligible for each year.