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Breaking News Alert This Week In Lawfare Land: 'Deadly Force'

Leaked Document Shows Biden Sidelining Public To Take Orders From Planned Parenthood


A new leaked document shows the Biden administration flouting the regulatory process in order to push through a massive financial favor to the powerful and lucrative abortion industry that backed Joe Biden’s presidential candidacy with tens of millions of dollars.

Less than two weeks after an already abbreviated period of time for the public to review and comment on the proposed regulatory change, Biden’s Department of Health and Human Services circulated a draft final rule that violates the clear language of Obamacare in order to benefit Planned Parenthood and other corporate abortion interests. The leaked document, dated August 10 and more than 300 pages long, was then sent to the Office of Management and Budget for final approval, according to multiple sources familiar with the federal rule making process. OMB posted confirmation of receipt August 19, a mere 50 days after the major rule change was first proposed to the public.

“In their rush to finalize the rule, HHS and [Secretary Xavier] Becerra are making a mockery of the rule making process. Their efforts to minimize public input and provide only cursory review shows the rule was predetermined,” said Rachel Morrison, a policy analyst at the Ethics & Public Policy Center who submitted comments opposing the rule.

In order to pass the Patient Protection and Affordable Care Act, known as Obamacare, in 2010 on a mostly party-line vote, Democrats included a provision to placate pro-life members of the party reluctant to vote for it. Section  1303 of the bill requires separate billing for medical procedures that end unborn human lives. Pro-life Democrats said this would ensure no federal funds were spent on abortions. Plan users would write one check for their premium, and another for an abortion rider.

However, the Obama administration ignored the statutory language and made it harder for plan users to know if they were funding abortion by allowing insurers to bury the abortion surcharges deep in plan documents. Before the end of the Trump administration, the regulation governing such payments for abortion was updated to make it compliant with the law as written. Planned Parenthood and then-California Attorney General Xavier Becerra sued to block the rule. Becerra was rewarded by Biden, who regularly emphasizes his devotion to the Roman Catholic Church, with an appointment as secretary of Health and Human Services.

On July 1, the Biden administration proposed to eliminate and replace the Trump administration’s separate billing requirement.

Normally, such an important and economically significant rule change would require giving the public months of opportunity to comment, followed by months more of rigorous review of and response to the comments, before finalizing the rule. In a stunning move, the Biden administration provided only 28 days for public comment, thereby receiving only 341 comments.

By contrast, President Donald Trump gave the public a full two months to comment on his administration’s rule governing the billing for abortion services, receiving more than 75,000 public comments. This was consistent with Executive Order 12866, signed by President Bill Clinton in 1993, which provides that rules should generally have at least 60 days for public comment. The Administrative Procedure Act says that unless it’s a national security crisis or other urgent situation, less than 30 days of review is not advisable.

What makes the abnormally short public comment period even more surprising is that HHS admitted in its final draft this rule “is expected to be a ‘major rule’ … because it is likely to result in an annual effect on the economy of $100 million or more.”

One of the most difficult and time-consuming portions of the regulatory process is the period in which an agency reviews and responds to public comments, which they are required to do by law. The Administrative Procedure Act (APA) requires any rule that has force or effect of law to be open to public inspection and comment before finalized. Agencies must take comments into account.

That means an agency must read and respond to them in the preamble to the final rule. If they don’t, agency has violated the APA and the regulation can be blocked. Limiting the public comment period to less than a month truncated the number of public comments drastically, but regulatory experts say less than two weeks was way too little time to review several hundred comments, some of which were dozens of pages long and dealt with comprehensive legal and regulatory arguments. The draft final rule indicated no changes from the July 1 proposed rule in response to the substantive public comments on the controversial portions of the proposed rule.

“To me this signals that unfortunately [Centers for Medicare & Medicaid Services] has already made up its mind about all of these complicated issues and is rushing to finalize the rule without really considering the public comments and frankly without giving the public enough opportunity to weigh in on a number of controversial provisions,” said Randy Pate, former director of the Center for Consumer Information and Insurance Oversight at HHS. He noted that the rule change not only covered the separate billing for abortion issue, but also raised premiums on users, and removed flexibility for states in how they operate their insurance exchanges.

The rushed rule change covers one of the most important legislative battles Democrats waged in order to pass Obamacare, which legislated a massive regulatory overhaul of the health insurance marketplace. Sen. Ben Nelson, a pro-life Democrat from Nebraska, authored the section requiring separate payment for abortion services. The bill would not have passed without the provision.

Nelson explained during the debate over Section 1303 that separate payment meant separate billing and separate transactions: “[I]f you are receiving Federal assistance to buy insurance, and if that plan has any abortion coverage, the insurance company must bill you separately, and you must pay separately from your own personal funds—perhaps a credit card transaction, your separate personal check, or automatic withdrawal from your bank account— for that abortion coverage. Now, let me say that again. You have to write two checks: one for the basic policy and one for the additional coverage for abortion. The latter has to be entirely from personal funds.”

Planned Parenthood said in a lawsuit that following Obamacare’s requirement of separate billing for abortion services, as also required by the Trump regulation, would have a “devastating” financial impact on the abortion corporation. They said the Trump rule would result in less profitable abortions than insurance-covered abortions as well as fewer abortions overall due to insurers and patients dropping coverage.

“Planned Parenthood is desperate to hide abortion surcharges from consumers because they know transparency and truth is bad for business,” said Roger Severino, former director of the HHS Office for Civil Rights.