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Republicans have been getting a lot of mileage out of the recent Supreme Court decision that brought a blow to the Affordable Care Act -- with the court citing a law enacted by Bill Clinton as part of its rationale.
In Burwell vs. Hobby Lobby, the court said the 1993 Religious Freedom Restoration Act allows certain corporations to opt out of providing employees with certain contraception coverage -- which were mandated by the ACA -- because of the owners’ religious beliefs.
Now, former Republican House Speaker Newt Gingrich is saying Bill and Hillary Clinton’s health care reform plan from the 1990s also would have supported the court’s decision. In fact, Hillary Clinton’s plan -- which he calls Hillarycare -- would have been more favorable to corporations wanting to evade certain parts of Obama’s health care law.
"Hillarycare, 20 years ago, had a broader provision. The bill that (former Sen. Daniel Patrick Moynihan, D-N.Y.) introduced for Hillary had a broader provision in favor of corporate right to back out," of providing contraceptives based on religious beliefs, Gingrich said on Sunday’s ABC This Week.
We showed Gingrich's statement to Sara Rosenbaum, a health policy professor at George Washington University, who played a role in drafting health care legislation for the Clinton administration.
"I have absolutely no idea what he is talking about," she said.
So what is Gingrich talking about?
The Clintons' proposed Health Security Act, proposed in 1993, would have required all employers to contribute to employees' health insurance. All benefits packages would have included coverage for "family planning," including birth control.
But the original proposal doesn't say anything about religious exemptions for employers.
We weren't able to get a hold of Gingrich, but we think he's referring to this provision, included in a 1994 bill that Moynihan sponsored during the health care reform debate. (This bill was, however, separate from the Clintons’ plan.)
Moynihan’s bill said, in part, "Nothing in this title shall be construed to prevent any employer from contributing to the purchase of a standard benefits package which excludes coverage of abortion or other services, if the employer objects to such services on the basis of a religious belief or moral conviction."
In plain English, the law would not require an employer to utilize a benefits package that provided benefits that went against their religious or moral beliefs.
Gingrich is right that this would be less restrictive than the provisions laid out by the Supreme Court in the Hobby Lobby decision, experts said.
The court decision established fairly narrow restrictions for corporations looking to claim religious exemption from parts of the Affordable Care Act (though some say it creates a slippery slope). The decision said closely held corporations with strong religious convictions don’t have to offer insurance that covers four kinds of ACA-mandated contraceptives.
Moynihan’s provision was less restrictive because it said employers don’t have to purchase plans that include "abortion and other services," but it does not specify the other services, said Timothy Jost, a Washington and Lee University law professor.
Additionally, it includes "moral conviction" in addition to "religious beliefs," Jost added. The Religious Freedom and Restoration Act on which the court based its decision only applies to religious beliefs.
But was creating an exemption for employers based on religious beliefs a primary tenant of the Clintons' health care plan? No, it wasn’t.
The Clintons’ proposal
Moynihan’s bill was not put forth on the Clintons’ behalf. Their plan did not include a religious exemption for employers clause, said Chris Jennings, former health care adviser to both Clinton and President Barack Obama, in an interview.
"That was not related to the plan," Jennings said.
In fact, Moynihan was routinely critical of the Clintons’ proposal, once calling the administration’s financing estimates "fantasy."
Moynihan's proposal was one of several health care reform bills coming out of the 103rd Congress, and it certainly was not the one the Clintons wanted. It saw little floor time because it came up in August 1994, when the health care reform debate was winding down.
No other version of the Health Security Act included a religious exemption provision for employers -- including another earlier version also sponsored by Moynihan.
The primary health care bill -- sponsored by former Rep. Richard Gephardt, D-Mo. and backed by the Clintons -- included a provision that allowed health care providers to refuse to offer or perform services that went against their moral or religious beliefs, such as abortions. But the exemption did not extend to the employers contributing to health insurance costs.
The congressional briefing book on the Clintons' proposed plan does not include the provision, either.
Additionally, we spoke with experts who said they do not recall birth control as a major source of debate during the Clintons’ health care reform efforts. News coverage at the time seems to back that up.
Contraception coverage "hadn't emerged as a goal of reformers at that point," said Paul Starr, a public affairs professor at Princeton University. "So the idea of a ‘corporate right to back out’ also hadn't come up."
Abortion coverage was the primary point of contention, in terms of family planning, rather than birth control, Rosenbaum said.
It’s possible that Moynihan added a religious exemption for employers in order to appease those who didn’t want comprehensive abortion coverage.
But even so, it seems unlikely that the Clintons would have budged on providing universal abortion coverage.
Around that time, Lorrie McHugh, a Clinton administration spokeswoman on health, told the New York Times that the administration stood by its original position that abortion should be covered "where a doctor deemed it medically necessary or appropriate. … We’ll fight for it."
Gingrich said Hillary Clinton's health care plan from the 1990s "had a broader provision in favor of corporate right to back out" of providing contraceptive coverage than the one created by the Hobby Lobby Supreme Court decision.
We found that Sen. Moynihan did produce a health care bill, as part of widespread reform efforts, that included a religious exemption for employers that was broader than the provisions created by the court’s decision. However, Gingrich was wrong to connect that back to the Clintons. The Clintons’ health care plans did not include such a provision, and they did not back Moynihan’s bill. In fact, Moynihan was critical of the administration throughout the health care debate. Additionally, his proposal came up near the end of the reform efforts and didn’t generate much discussion.
We rate Gingrich's claim False.
ABC This Week, transcript, July 6, 2014
White House, "The President’s Health Security Plan Preliminary Summary," Sept. 22, 2014
White House, Health Security Act press release, Sept. 20, 1993
U.S. Senate, S. 2351: Health Security Act, Aug. 2, 1994
U.S. House of Representatives, H.R. 3600: Health Security Act, Nov. 20, 1993
New York Times, "Moynihan Health Bill a Political Enigma," June 16, 1994
New York Times, "The Health Care Debate: The Abortion Issue," July 14, 1994
New York Times, "The Health Care Debate: What Went Wrong?," Aug. 29, 1994
Guttmacher Institute, "Contraceptive Coverage: a 10 Year Retrospective," June 2004
Email interview, Sara Rosenbaum, health policy professor at Georgetown University, July 7, 2014
Email interview, Paul Starr, public affairs professor at Princeton University, July 7, 2014
Email interview, Mark Goldfeder, law professor at Emory University, July 7, 2014
Phone interview, Chris Jennings, former White House health care adviser, July 7, 2014
Phone interview, Timothy Jost, law professor at Washington and Lee University, July 7, 2014
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