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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT/TITLE
DATE
RESTRICTION
Gene Sperling and Sarah Rosen Warteli to the President re:
Bankruptcy Legislation (3 pages)
05/05/2000
P5
Lt ~0)
Gene Sperling et a!. to the President re: Decision on Bankruptcy
Reform Legislation (7 pages)
06/22/2000
P5
~'AO~
OOlc. fax
Ben Lawksy to Sara Rosen Wartell re: phone number (partial) (I page)
06/23/2000
P6/b(6)
OOld. memo
Betsy Cavendish to Sarah Rosen re: phone number (partial) (1 page)
06/24/2000
P6/b(6)
OOle. memo
Chuck Brain to the President re: Senator Biden (partial) (I page)
06/23/2000
P6/b(6)
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Heather Howard (Subject Files)
OA!Box Number:
21195
FOLDER TITLE:
Bankruptcy - Schumer Abortion Legislation Letter to Congress
Racheal Carter
2012-0254-S
rc655
RESTRJCTION CODES
Presidential Records Act [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) ofthe FOIA] ·
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes {(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in. accordance with restrictions contained in donor's deed
G
o@~gift.
ec
(3).
ume
�---------·----~-----------------···--·-------
May 5, 2000
MEMORANDUM TO THE PRESIDENT
CC:
JOHN PODESTA
FROM:
GENE SPERLING
SARAH ROSEN W ARTELL .
RE:
BANKRUPTCY LEGISLATION
ISSUE PRESENTED:
The NEC Bankruptcy Working Group has prepared a letter to the Congress setting forth
our detailed views on the House and Senate bankruptcy reform bills. Both of these bills
passed by overwhelming margins, despite our threat to veto the House bill and the
import<,Ult reserVations we expressed about the Senate bill. Consumer groups continue to
oppose these bills. Many major editorial pages have been critical of both bills, although
most are more favorable toward the Senate bilL We expect some will oppose the final
product. The letter to Congress would reiterate our previous statements: It again
threatens to veto the House bill and says that the Senate bill better meets your principles,
-although we have some serious concerns. Despite the lengthy criticism ofthe bills'
provisions, the letter effectively signals that you are likely to sign the final legislation
unless it contains the most noxious House provisions or drops most of the consumer and
debtor protections achieved by Senate Democrats. We seek your reaction to this strategy
before the. letter is sent.
VIEWS OF YOUR ADVISORS:
All of your advisors support balanced bankruptcy reform. All believe that the final bill
will do some good by encouraging personal responsibility and lowering credit card
interest rates that are inflated because some debtors are too ready to use and even abuse
Chapter 7's bankruptcy discharge. All of your advisors also agree that, due to an
expensive lobbying effort by the credit card industry, the final bill will lack the balance
we sought and will not demand similar responsibility from the credit card industry.
An important issue is whether or not the new rules, detennining who should be required
to go into Chapter 13 (which requires repayment of what a formula says you can repay),
are flexible enough to deal with specific cases ofhardship in unusual circumstances. The
provisions we have pushed for- ultimately allowing the bankruptcy trustees and comts
greater discretion- have been largely rejected. We have made reasonable progress in the
bill in other areas; for example, the bill protects child support and alimony from
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�competition from credit card debt in many cases and includes a safe harbor from the
means test for below-median-income debtors.
Assuming that the final bill that comes to your desk is close to the Senate bill, all of your
·advisors agree that you should sign it, although for somewhat different reasons.-Jack
Lew, Chuck Brain, and Gene Sperling believe that, while the final bill may be on the
whole a net minus, it is a relatively close call, and not worth the political downside of a
veto override. Larry Summers believes that a final bill relatively close to the Senate bill
is a net plus and should be signed on the merits. Bankruptcy reform, Larry argues, will
have an impact similar to that of open trade: a few visible cases of hardship, but a larger
less visible benefit oflower interest rates for credit card borrowers.
All of us feel that, while it is unfortunate that we do not have a more balanced bill, if the
final bill stays relatively close to the Senate bill, it would be better to sign the bill with
some reservations than to risk a veto override. For you to have any chance of sustaining
a veto, or even to make a strong public statement through an override, we would need to
launch a high profile battle against a "paid-for" bankruptcy bill- a battle that would
indirectly put us at odds with friends like Senators Daschle and Torricelli, and allow
others to say we were walking away from our individual responsibility message.
BACKGROUND:
Last May, the House bill passed by a veto-proof margin of 313 to 108. A Democratic
substitute that we crafted with Congressman Nadler received only 149 votes and had no
effect on our effort to give enough Democrats cover to help us achieve a veto-sustaining
margin. Key House Democratic leaders, inCluding Representatives Martin Frost, Bob
Menendez, and Patrick Kennedy supported the underlying bill and opposed the Nadler
substitute. Minority Leader Gephardt opposed the bill, although he announced his
position well after other Members' positions in support had settled. When we talked to
Senate Democrats, we found few were interested in our substantive concerns and many
were eager to see a reform bill enacted. Some were willing to press for changes and
modest improvements were achieved as a result. But few Senate Democrats were willing
to oppose the legislation despite its imbalances. As a result, an improved but flawed bill
passed the Senate by a vote of 83-14. Democrats opposing the bill on bankruptcy grounds
were Senators Kennedy, Wellstone, Dodd, Feingold, Harkin, Reed, Sarbanes, Schumer,
Lautenberg, and Moynihan. (A few of the 14 opposed the bill for other reasons.)
Although a formal conference committee has not been named, Congress is now working
to reconcile the House and Senate bills. Republican and Democratic leadership expect to
attach the bankruptcy provisions to a conference report on other legislation (perhaps
Digital Signatures or Crop Insurance) in order to avoid procedural roadblocks placed by
Senators Wellstone and Kem1edy in trying to force another Senate vote on a two-year
minimum wage increase.
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The NEC working group drafted a letter to the informal conferees setting fotih the
Administration's detailed views on various provisions of both bills. It reiterates your
senior advisors' veto threat that we issued on the House version of the legislation last
ycribes the Senate bill as more balanced and doing a better job of meeting your
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�principles, although it details serious concerns we have about some of the Senate bill's
provisions. In a few cases, the letter explains that the House language is actually better
than the Senate approach. (The letter also reiterates the veto threat on a bill including the
minimum wage, tax, and school voucher amendments that were attached to the bill by the
Senate, but we expect those non-relevant provisions to be dropped.) (Copy of cover letter
at Appendix A)
Your senior advisors believe that the relatively muted tone of this letter signals that you
are likely to sign the final legislation, albeit with reservations. The details in the letter
provide helpful guidance to the Democratic negotiators attempting to improve the bill in
conference. Unless we significantly raise the level of our rhetoric now, your advisors
·will likely recommend that you sign the final bill, unless it drops the most visible
improvement achieved by Senate Democrats or includes the most noxious aspects of the
House bilL
Appendix B is a more detailed summary of some of our substantive concerns with the
House and Senate Bills.
DECISION:
Proceed with Letter _ _ _ __
COPY
Let's Discuss - - - - - -
�June 22, 2000
MEMORANDUM TO THE PRESIDENT
FROM:
GENE B. SPERLING/SARAH ROSEN W ARTELL
CHARLES BRAIN/JOEL WIGINTON
SUBJECT:
DECISION ON BANKRUPTCY REFORM LEGISLATION
CC:
JOHN PODESTA
ISSUE PRESENTED:
Senator Lott has advised Senator Daschle that negotiations on bankruptcy reform legislation are
over. The Republicans agreed to make some further concessions on a couple of the outstanding
issues, but the fmal resolution fails to address our concerns on three key issues you noted in your
recent letter to the Congressional leadership: the homestead exemption, discharge of penalties for
violations of clinic access laws, and an exemption from the Fair Debt Collection Practices Act
(FDCP A) for check collectors. These problems come on top of the dissatisfaction many of your
advisors feel with the balance struck in the bill's other provisions. Senator Daschle has asked
about your intentions and believes that a strong, clear message from you quickly could enhance
the chances of obtaining a veto-sustaining margin.
Your advisors unanimously recommend that you send another letter to the Congress that: (1)
indicates that you will veto the bill that Lott described as final; (2) strongly implies that you will
sign tw bill without adequate clinic access provisions; (3) stresses your concerns with the
current resolution of the check collector and homestead issues and the lack of balance in the
remainder of the bill; but (4) urges the Congress to fcx these problems and leaves you room to
decide how to proceed if the clinic access issue is resolved.
STATUS IN CONGRESS
Senator Daschle believes that the chances of achieving 34 Democratic votes are enhanced by your
sending a clear, strong veto message as soon as possible. However, it is not certain that a vetosustaining margin can be obtained. While Daschle would personally support the bill in its current
form, ifyou have a strong veto message premised upon the clinic access and check collector
provisions, Daschle may stand with you. Nonetheless, there is some risk, as we have never heard
a credible assertion that even 25 Democrats are willing to oppose the bill.
Senator Torricelli, the lead Democratic sponsor of the legislation, also appears to be inclined to
support the bill in its current fmm. Torricelli's staff, however, notes that if you come out with a
clear and strong veto statement, the Senator may stand with you against the clinic access and
check collector provisions.
COPY
�Eleven Democratic Senators were opposed to the bill on relevant grounds when it passed the
Senate. Senator Durbin, who led the bipartisan effort last year and voted for the Senate bill, has
determined that the final bill is unacceptable to him, regardless of the outcome of these remaining
issues. Senator Leahy, who voted for the Senate bill and has worked hard to ensure a fair
process, believes that the clinic access and the check collector issue swing the balance against an
already flawed product; he will vote against it in this form and recommend a veto. Senator
Schumer, who strongly opposes the bill, believes that the clinic access issue will mobilize others.
There are five to seven Democrats, led by Senators Biden, Johnson, Breaux, and Reid of Nevada,
however, who will likely support the bill in whatever form it is presented to them. Senator
Jeffords is the only Republican who has publicly noted some concerns with the measure.·
There is little prospect for overcoming the strong veto-proof margin of 313 to 108 by which the
House passed its bill last May. Moreover, it is likely that the Republicans will send whatever
vehicle they use for the banlauptcy bill to the House first to try to gather momentum.
ADMINISTRATION APPROACH TO BANKRUPTCY REFORM
We have said repeatedly that you support balanced consumer bankruptcy legislation that would
encourage responsibility and reduce abuses of the bankruptcy system on the part of debtors and
creditors alike. We can eliminate abuse without hurting those forced to tum to bankruptcy, the
vast majority of whom are faced with some of the hardest circumstances that life has to offerdivorce, unemployment, illness, and uninsured medical expenses. Although we should not
countenance people using bankruptcy to escape bills they can afford to repay, we also should not
enact punitive legislation that places insurmountable barriers before the people who file for
bankruptcy as a last resort.
To gtiide Congress in 'striking the proper balance, we have set forth principles that should be met
by a final bill. Many of these issues were resolved on a bipartisan basis by Congressional staff.
Others were reserved as "member issues." Just this week, Lott advised Daschle of the
Republicans' final offer on these issues and their plan to move forward attaching bankruptcy to
the next available vehicle.
ASSESSMENT OF NON-MEMBER ISSUES
In a Jetter to the informal conferees on May 12, 2000, Jack Lew set forth your key principles. A
detailed assessment of the resolution of these issues is in the attached appendix.
In short, the final bill's provisions are closer to the Senate bill than the House bill, but they do not
incorporate the balance that you have sought. They reflect a compromise between a House bill
that we thought badly one-sided and a better Senate bill about which we still had significant
concerns. While all of your advisors believed when we wrote you on May 5th that you should
sign a bill close to the Senate bill, this bill is a somewhat closer call.
For example, our fundamental concern about the rigidity of the means test in the Senate bill was
not addressed. Moreover, changes were made fi·om the Senate bill to shift a few more debtors out
of Chapter 7 and limit a bit further the court's discretion to determine whether a debtor has the
capacity to repay. Similarly, flawed language from the Senate biJJ narrowly limiting the family
household goods that debtors can protect from creditor seizure was included in the final bill.
While no one of these provisions alone merits your veto, cumulatively they represent undesira
changes relative to the Senate bill.
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�ASSESSMENT OF RESOLUTION OF MEMBER ISSUES
1
You wrote to Congressional leaders on June 9 h setting out your concerns about five open member
issues. Our assessment of the resolution of these issues is below. In short, we believe two of
those issues have been resolved to our satisfaction (pension cap and credit card disclosures,
although Senator Kennedy is having trouble getting confirmation of the agreement on pension
cap); one issue has been resolved to the satisfaction of key Senate Democrats but not to ours
(homestead); and the Republican resolution of two issues (clinic access and check collector
exemption) is unacceptable to us and the lead Democrats on those issues, although some
Democrats would support the bill nonetheless.
Pensions: "The final bill may eliminate protections for reasonable retirement pensions that
reflect years of contributions by workers and their employers."
The Senate bill included a noxious provision that would have aUowed creditors to demand that
debtors waive bankruptcy protection for pension assets as a condition of receiving credit. That
was dropped in Conference, but Senator Grassley insisted on some limit on otherwise unlimited
pension assets shielded from creditors. Senator Kennedy was deeply concerned that such a cap
would send the wrong message about retirement savings. Moreover, seemingly large retirement
accounts do not necessarily provide for extravagant lifestyles for workers with increasingly long
life expectancies. A compromise was apparently reached between Kennedy and Grassley that
caps only certain IRAs, excluding amounts rolled over from employer pension plans, at $1
million. Moreover, the court has discretion to waive the cap in the interests of justice. Senator
Kennedy is having difficulty getting confirmation that the Republicans will stick with this
agreement. If there is no backsliding, this resolution seems reasonable and consistent with our
arguments in the homestead co11text.
Credit Card Disclosures: "The final bill may weaken important credit card disclosure
provisions that will help ensure consumers understand the implications of the debt they are
incurring."
The Senate bill requires modest new credit card disclosures. Consumers would be given better
information about credit card "teaser rates" and the impact of making only the minimum payment
on the length of time one would be repaying debt. Your letter referred to an effort by Senator
Gramm to exclude small banks from the provisions' scope. However, the provisions survived
without the exclusion, although for two years the Federal Reserve Board will be asked to provide
consumers with an 800 number for information about credit cards issued by smaller banks -an
800 number that larger banks will have to provide themselves. Tile Senate bill's modest
disclosure requirements have beett effectively preserved.
Homestead: "The tinal bill may not adequately address the problem of wealthy debtors
who use overly broad homestead exemptions to sbield assets from their creditors."
State law allows debtors to exempt from the bankruptcy estate home equity valued up to specified
homestead exemption thresholds. Five states (including Texas and Florida) have unlimited
homestead exemptions, effectively allowing wealthy debtors to shield millions in assets in
valuable mahsions, while avoid repayment of their creditors. It seems to us fundamentally u
to ask low- and moderate-income debtors to devote future income to repay all the debts thrv.~.~"'".fG.N<'!"
can, while leaving loopholes that allow the wealthy to shield assets from their creditors. ii?-
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�The final bill has a modest limitation on unlimited homesteads to address abuse by those who
move to states with unlimited homestead exemptions within two years of the bankruptcy filing.
Tltis does not address our fundamental issue. Moreover, wealthy debtors often can use
bankruptcy planning to postpone bankruptcy for two years while they qualify for the unlimited
homestead exemption.
Senator Kohl, the Democratic Senate champion of this issue, is satisfied that this resolution
represents a good first step and establishes the principle that some nationwide limitation on
homestead exemptions is appropriate. (Kohl is undecided whether he will support or oppose the
overall bill.) Senator Leahy does not want to flank Senator Kohl on the left on this issue. Thus,
if you take this issue to the public, you will have only long-time bankruptcy-bill opponents like
Wellstone, Kennedy, and Nadler joining you from Congress. However, many editorial pages
around the country have pressed this issue hard and would applaud your concern.
Fair Debt Collection Practices Act: "The final bill may include an anti-consumer provision
eliminating existing law protections against inappropriate collection practices when
collecting from people who bounce a check."
In conference, Senator Hatch has insisted on an anti-consumer provision (in neither the House or
the Senate bill) which would eliminate attorneys fee awards for violations of the Fair Debt
Collection Practices Act, if the defendant is collecting bounced checks rather than other defaulted
debt. This is a pernicious provision because it could give check collectors de facto rein to
intimidate and harass lower-income debtors, knowing that their financial position would prevent
them from hiring counsel. Often, the only effective enforcement of the check collector provisions
is class action litigation, fmanced by firms because of the potential for attorneys fee awards.
Senator Torricelli suggested a minor change, which the Republicans accepted, that limits
attorneys' fees to cases where the debtor can prove that he or she had no intent to defraud.
Senators Leahy and Sarbanes argue that such a standard is impossible to prove. Our
fundamental concerns ltave not been addressed.
Clinic Access: "Some in Congress still object to a reasonable provision that would end
demonstrated abuse of the bankruptcy system. We cannot tolerate abusive bankruptcy
filings to avoid the legal consequences of violence, vandalism, and harassment used to deny
access to legal health services."
The Senate bill included a Schumer amendment to address the announced strategy of antiabortion protestors using bankruptcy to avoid penalties for violence against family planning
clinics in violation of the Freedom of Access to Clinic Entrances Act (FACE) and its state ·
counterparts. We strongly supported the amendment. The Vice President was in the Senate
chamber when they voted to break a tie, if needed. To avoid embarrassment, the Republicans
ensured that the amendment passed by a vote of 80-17. However, in conference, they have
steadfastly refused to include it or a comparable measure. Their alternative, which they have
unilaterally announced will be in the final bill, does little beyond current law. It precludes
discharge of all judgements for acts of violence where behavior was shown to be willful and
malicious. Advocacy groups argue that few of the actual judgements against, or settlements
reached with, defendants who harassed clinic patients include a finding of willful and malicious
behavior. Moreover, harassment and intimidation does not always include violence. Thus, the
final unilateral resolutioll does not satisfy our concems.
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�This is the hardest issue for the Democrats who want to support the bill. Abortion rights groups
are energized. If you take a strong position, this is the issue most likely· to rally Democrats in
opposition to the bilL Even Senator Torricelli may join you in opposing the bill if further changes
are not made to this provision, although Senator Biden does not believe this issue should bring
down the entire bill.
RECOMMENDATION
Your advisors unanimously recommend that you send another letter indicating that the
Republicans' "final" bankruptcy bill is one that you would veto. The letter would note that there
has been an acceptable resolution on pensions and credit card disclosures, but that you have
continuing concerns about the check collector, homestead, and clinic access provisions. Special
emphasis will be given to the clinic access issue, so that no one reading the letter would doubt
you would veto any bill without its satisfactory resolution. A reader should also be concerned
that you might veto a bill that does not resolve the homestead and check collection issues to your
satisfaction, but the letter will give urge the Congress to fix these problems and give you
sufficient latitude to make th~ veto decision later. There is a real risk that Congress could resolve
the clinic access issue, leaving you with only a handful of Democratic Senators joining you in
opposition to a bill with the other provisions.
DECISION
1. Send the letter
as proposed
2. Let's discuss
COPY
5
�APPENDIX
ASSESSMENT OF BANKRUPTCY BILL'S OTHER PROVISIONS
In a letter to the informal conferees on May 12, 2000, Jack Lew set forth your key principles.
Our assessment of the resolution of these issues is below.
Means Test: "Access to Chapter 7 should not be governed by an arbitrary means test, but
by reasonable guidelines that take into account individual circumstances."
We have argued unsuccessfully that various changes are needed to build more discretion into the
system to determine whether, in the debtor's individual circumstances, they really have the
capacity to repay. We have also sought less stringent thresholds and various technical changes to
prevent unfairness in the application of the test. We did succeed in preventing creditors from
filing motions to challenge low-income debtors' bankruptcy filings, but these below-median
income debtors will be subject to the burdens of new means test paperwork and trustee scrutiny
even though only a tiny fraction will have any capacity to repay their debts. While some modest
improvements were made in conference, tlte final bill (like both House and Senate bills) does
not address many ofour fundamental concerns.
Protection Against Coercive Reaffirmations and Practices: "There must be appropriate
safeguards against coercive creditor practices that compel debtors to forgo their rights and
that disadvantage more scrupulous creditors."
During bankruptcy, too many debtors are misled or deceived into agreeing to repay debts that
they cannot afford and have a legal right to discharge. The fmal bill contains provisions, based
on an Administration proposal, that make it significantly more difficult to mislead or deceive
debtors who cannot afford to reaffirm their debts. To get our proposal included in the Senate, we
had to make some significant compromises with the credit card industry that cause consumer
advocates concern. We sought further improvements in conference but they were not made.
However, truly offensive provisions from the House bill (that would have banned class actions as
a remedy for existing law violations) were dropped. As a whole, your staff believe these
provisions ~re a net improvement for consumers over current law.
Improving Credit Card Practices: "Both debtors and creditors must be required to be
responsible. Bankruptcy reform should be balanced by including provisions that address
credit~card practices that may lead to bankruptcies."
As discussed in the body of the memorandum, modest new credit card disclosure requirements
were included in the Senate. These largely survived in tact in the final bill. Consumers are given
. better information about credit card "teaser rates" and the impact of making only the minimum
payment on the length of time one would be repaying debt. Overall, wltile we believe more
information could be provided more clearly, these provisions are an improvement over current
law.
Non-dischargeable Debts and "Cram Downs": "The goal of repaying creditors must be
balanced with the need to protect social priorities, such as payment of child support,
alimony, and taxes, and to preserve a meaningful opportunity tor a fresh start."
In the last Congress, the First Lady wrote of her concem with provisions that make additional.---.....
credit card debt nondischargeable in bankruptcy, thus leaving it to compete with higher so · ~SIDC:tvr,
priorities that also are nondischargeable- especially payment of child support and alim ~
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�In response, the bill's proponents left the new categories of nondischargeable credit card debt,
albeit somewhat narrower, but added provisions to clarify that child support and alimony are the
highest priority. These provisions will work in many cases to improve the payment of child
support and alimony in banlauptcy; however, in a small portion of cases after bankruptcy
discharge, these new nondischargeable credit card debts could crowd out child support or
alimony. Our argument is very technical, however. Rhetorically, they have neutralized our
child support and alimony criticism.
We have a similar concern about provisions in the final bill that would give secured creditors
unprecedented rights to collect amounts in excess of the value of their collateral. (Current laws
"crams down" their claim to the value of the security. Thus, if a car is worth less than the
amount originally borrowed, the claim is limited to the car's value.) Since secured debt must be
satisfied if the collateral is to be kept, collection of other societal priorities (like child support,
alimony, and taxes) might also suffer a bit. The bill also skews the distribution of scarce debtor
assets toward undersecured creditors instead of unsecured creditors (like credit card companies).
The latter firms support is ironic, but this was a political bargain they made with car financing
firms to win Senator Abraham's support. While the fmal bill is better than the House provisions,
our fundamental concern was not addressed.
Barriers to Entry or Representation in the Bankruptcy System: "Inappropriate barriers
should not be created to entry into or effective representation in the bankruptcy system."
The Administration has been concerned about inflexible pre-bankruptcy filing hurdles, including
paperwork and counseling requirements and fees. We were also concerned about attestation
requirements and sanction provisions that could deter attorneys from representing debtors or raise
the costs of representation. The final bill waives fees for low-income debtors, reduces some of
the paperwork requirements, and eliminates the most chilling requirements for debtors' attorneys.
While hardly the provisions we would have written, we do not have strong objections to the
remaining provisions.
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrriTLE
DATE
RESTRICTION
001. email
Wm G. White to Elena Kagan re: Draft HHS Language (partial) (I
page)
07/2311997
P6/b(6)
002. fax
Renee Landers to Elena Kagan re: phone number (partial) (1 page)
07/23/1997
P6/b(6)
003. email
Nancy Min to Barbara Chow re: Conversation with Karen Nelson on
Hyde Provisions (2 pages)
06/25/1997
P5
Charles Ruff and William Marshall to the President (4 pages)
06/10/1998
P5
lf~o)
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Heather Howard (Subject Files)
OA/Box Number: 21196
FOLDER TITLE:
Abortion [Binder] [I]
·Racheal Carter
20 12-0254-S
rc652
RESTRICTION CODES
Presidential Records Act- [44 U.S. C. 2204(a))
Freedom of Information Act- !5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
PJ Release would violate a Federal statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
P5 Release would disclose confidential advici between the President
and his advisors, or between such advisors [a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) ofthe FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency ((b)(2) of the FOIA)
b(3) Release would 'violate a Federal statute [(b)(J) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) ofthe FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIAJ
C. Closed in accordance with restrictions contained in donor's deed
of gift.
. ~~ecn~d in accordance with 44 u.s.c.
~~~view' upon request.
�~~ '-'-:':1?'7 -:-_( ~ ~-~: (_~~ L.l ~
,.
~
TH,E WHITE HOUSE
WASHINGTON
June 10. 1998
MEMORANDUM FOR THE PRESIDENT
FROM:
Charles F. C. Ruff. Counsel to the President
William Marshall, Associate Counsel to the President
SUBJECT:
The Child Custody Prote.ction Act
I. THE CHILD CUSTODY PROTECTION ACT
(
Congress is currently considering S. 1645, the Child Custody Protection Act -- a bill
which would impose civil and criminal liability on any person who knowingly transports a minor
. across a state line to obtain an abortion in cases in which the minor has not satisfied her home
state's laws regarding "parental involvement" (i.e. laws requiring parental consent or parental
notification).
'
The bill constitutes a novel form of federal legislation irt that it prohibits persons from
traveling across state lines to engage in conduct that is legal in the second state.' lt also
uniquely conditions liability upon the law of the state where the person comes from rather than
the law of the state in which the conduct occurs.
As described by its sponsors, the bill is designed to protect the rights of parents to
participate in their minor child· s abortion decision against those who would encourage her to
have a "secret" abortion -- a category which, according to the sponsors, includes out-of-state
1
The only possible exception to this is the Mann Act which may arguably be read as
prohibiting transporting women across state lines for prostitution to a state where prostitution is
legal.
1
COPY
�abortion clinics who advertise the a\·ailability of abortions without parentaJ involvement 2 and
adult males who impregnate minors and then attempt to erase the consequences of their i.lctions
by transporting the minors out of state for the abortion procedures.
Politically, however. the bill is more easilycharacterized as an attempt to provoke
controversv on a sensitive and di\'isive issue than as an effort to address a leuitimate area of
federal intere;;t. Substantively. the bill raises troublesome policy. constitutional. and practical
la\v· enforcement concerns and is counterproductive to its asserted goals.
~
II. BACKGROUND--
PARE~TAL
INVOLVEMENT REQUIREMENTS
Currently twenty-t\VO states require parental consent for a minor to terminate her
pregnancy while sev·enteen states have opted for the lesser requirement of parental notitication.
Six of these states require notice to or consent from both parents, while four states would allow
the notification or consent requirements to be satisfied by persons other than the minor's parents
(such as a grandparent or an adult sibling.) Eleven states have no parental involvement
requirements.
(
The constitutionality of parental involvement requirements has generally been upheld by
the Supreme Court. Although holding that pregnant minors have a constitutional right to choose
whether to terminate a pregnancy, the Court has determined that a state may require parental
notice or consent in the interest of ensuring that the minor's decision to terminate her pregnancy
is "knowing, intelligent, and deliberate." The parental involvement requirements, however. may
not impose an "undue burden" upon a minor who is capable of giving an informed consent to the
abortion procedure. ·States must also provide a judicial "bypass" mechanism which allows the
minor to avoid the parental involvement requirements if she establishes either l) that she is. ·
sufficiently mature and well-informed to make the abortion decision independently or 2) that an
abortion without parental involvement would be in her best interests. 3
III. ANALYSIS
2
The law does not explicitly prohibit advertising. The sponsors might, however, envision
extending liability to advertisers through some application of accomplice liability. See Part III,
below.
3
The Supreme Court has ruled that bypass procedures are constitutionally mandated in
states that require the consent or notification of both parents; but the Court has not had occasion
to rule on whether bypass procedures are required in a one parent state.
2
COPY
�S. 1645 represents a dramatic incursion into the traditional understanding of federalism.
Federalism presumes that a citizen is free to take advantage of favorable la\vS in other states nnd
that states have the right to regulate matters within their own boundaries (unless the matter is
directly regulated by the federal go\·et'nment.) S. 1645. ho>vever. is unique in that it attempts. by
force of federal law. to entorce one state· s laws in the territory of another. As such. it sets a
dangerous precedent tor federal interference \Vith such matters as gaming. alcohol. tobacco. guns
and other items whose regulatit)ll \·ariessignificantly from state to state.
Despite the seriousness of the federalism concerns. however. S. l645 is not clearly
unconstitutional on those grounds. Because the approach taken by the sponsors is so no\·el. there
is virtually no Supreme Court precedent, on either side. from which to take direction.
Accordingly. while constitutional arguments against the legislation can be made based upon
general federalism principles (or upon right to travel or privilege and immunities grounds). a
definitive constitutional assessment cannot be offered with any degree of certainty. The
federalism objection, therefore. is best characterized as a policy, and not as a constitutionaL
concern.
There is also no constitutional ,abortion rights argument that would support invalidating
the bill as whole. DOJ has indicated that the bill would be unconstitutional as applied in certain
circumstances (for example when the law would require the minor to satisfy the parental
involvement laws of two separate states) but the constitutional concerns noted by DOJ, although
serious, can be remedied by re-drafting the legislation.
(
The. strongest objections to the legislation are based on policy, rather than on
constitutional, grounds. The bill's first and most glaring weakness is that it subjects family
members to criminal and civil liability. Under the terms of the legislation, grandmothers, aunts,
and adult siblings may be prosecuted for coming to the aid of a minor relative in distress. Even a
mother or father may be criminally sanctioned if she or he resides in a state that requires the
involvement of both parents. Obviously, subjecting family members to criminal and civil
sanctions for helping their relatives does not further the interest of healthy family
communication. Exposing family members to the possibility of criminal or civil sanction is also
counterproductive in that it would further isolate the minor by discouraging her from seeking ·
advice and counsel from those closest to her. Finally, creating a civil action which allows family
members to sue each other when a minor within that family has an abortion does not serve the
goal of fostering strong families.
Second, the bill could inappropriately impose liability on persons who merely provide
information, advertising, counseling, referrals, or medical services to the minor. Through rules of
accomplice liability, the bill could subject a telephone receptionist to criminal liability, for
example, merely for informing an unnamed caller about the availability of abortion services.
The bill's creation of a private cause of action is, from this perspective, even more problematic.
A civil action would be a ready tool for those who wish to harass, intimidate, or bankrupt service
providers.
3
COPY
�Third, the bill imposes criminalliilbility on persons who may not realize they an:
violating the law (as \vhen the minor falsely informs the transporter that she has parental
consent.) This is because the bill predicates liability on the intent to help the minor obtain un
abortion rather than on the intent to help the minor avoid the application of a state's parental
notification requirements.
Finally. the. bill raises numerous practicallavv enforcement concerns. These include the
use of scarce FBI resources to prosecute violations. the need for federal law enforcemenr
authorities to interrogate family members and close teenage friends in order to pursue violations.
and the fact that the defendants in some cases are likely to be minors.
lV. RECOMMENDATION
There would be little advantage in opposing this bill in its entirety. The sponsors'
example of the adult male impregnating the female minor and taking her across state lines for an
abortion without parental involvement is likely to be politically compelling and. as noted above.
there is no definitive case to be made that imposing federal civil and criminal sanctions for this
activity is unconstitutional. At the same time, the bill, as written. significantly overreaches and
affirmatively harms important policy and constitutional interests.
(
At this point, it is unclear whether the sponsors are interested in fixing the legislation to
meet legitimate objections or whether they are merely interested in provoking confrontation. In
either case, we believe that our best action is to announce that the Administration would support
narrowly tailored legislation but, for policy and constitutional reasons, is opposed to the bill as
currently drafted. The first step in this process would be to submit a letter from the EOP
highlighting two specific issues -· the need to exempt family members and the need to exclude
from potential liability those persons whose only coiU1ection to .the abortion is the provision of
information, advertising, or a medical, referral, or counseling service. This letter would also
indicate that a letter containing constitutional issues would be subsequently forwarded by DOJ
and that you have instructed the Department to work with the sponsors in crafting final
legislation that meets Administration concerns.
This strategy is not without its difficulties. First, anything short of complete opposition
to the bill is likely to raise objections from our allies. Second, the bill's sponsors might accept
our objections and submit a bill that you would be obligated to sign. Third, and most
troublesome, the sponsors might accept some of our objections and refuse others. This would
place you in the position of either signing a bill with seriously objectionable provisions or
continuing to oppose a bill that has had some of its more egregious provisions excised, an action
that would both potentially weaken the ·possibility of sustaining a veto and engender the criticism
that you are being overly rigid. We believe, however, that unless you would be willing to take the
position that you oppose legislation that would make it illegal for adult males to transport minors
they impregnate across state lines for abortions without parental consent, the best available
course is that outlined in this memorandum.
4
COPY
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financial institutions [(b)(8) of the FO
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�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrriTLE
RESTRICTION
DATE
001. note
re: Gag Rule meeting (2 pages)
05/15
P5
002. note
re: Gag Rule meeting (3 pages)
03/03 .
P5
003. note
re: Gag Rule meeting (4 pages)
03/08
P5
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Heather Howard (Subject Files)
OAJBox Number: 21197
FOLDER TITLE:
Gag Rule
Racheal Carter
20 12-0254-S
rc684
RESTRICTH;>N CODES
Presidential Records Act ·144 U.S.C. 2204(a)]
Freedom of Information Act. [5 U.S.C. 552(b)]
Pl National Security Classified Information ((a)(l) of the PRA)
P2 RelaJing to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his· advisors, or between such advisors (a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) ofthe PRA]
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disClose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute clearly.un'l' arranted invasion of
personal privacy ((b)(6) of the FOIA] ~I""\
b(7) Release would disclose information co In~ ~foiem nt
purposes [(b)(7) of the FOIA]
b(S) Release would disclose information co
f
financial institutions [(b)(S) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ot tbe FOIA]
a
C. Closed in accordance with restrictions contained in dmior's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request..
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Withdrawal/Redaction .Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. memo
Betsy Cavendish and Allison Herwitt to Bruce Reed et al. re:
Executive Order Regarding Emergency Contraception for Rape
Victims (partial) (1 page)
11/20/2000
P6/b(6)
002. note
re: phone number (partial) (1 page)
11/27
P6/b(6)
003. memo
Heather Howard to Bruce Reed re: Ideas for Executive Actions to
Promote Reproductive Rights (2 pages)
11/27/2000
P5
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Heather Howard (Subject Files)
OA/Box Number: 21195
FOLDER TITLE:
E.O. [Executive Order] on Emergency Contraception
Racheal Carter
20 12-0254-S
rc663
. RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act-, [5 U.S.C. 552(b))
Pl
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(J) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute.:a clearly un\1 rrante<! mvas1on 01
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information co
ed r I
o m nt
.
purposes [(b)(7) of the FOIA]
.
b(8) Release would disclose information co cern in!! the re!!ulation
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA)
Release would violate a Federal statute [(a)(3) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4)' of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
·eOP¥
�November 27, 2000
MEMORANDUM FOR BRUCE REED
FROM:
HEATHERHOWARD~
CC:
BARBARA CHOW
ANN O'LEARY
SUBJECT:
,,
IDEAS FOR EXECUTIVE ACTIONS TO PROMOTE
REPRODUCTIVE RIGHTS
't
As you know, NARAL has approached us to suggest two ideas for executive actions to promote
reproductive rights.
Executive Order Regarding Emergency Contraception for Rape Victims
NARAL proposes an executive order requiring hospitals receiving federal funds to provide
emergency contraception to rape victims. Attached is a memo from NARAL that provides
background information on emergency contraception, as well as citations to recent studies that
have found that many hospitals do not provide emergency contraception to women requesting it,
'
including women who have been sexually assa).llted.
Ann and I have reviewed the materials and recommend we pursue th~:idea, with one caveat: we
will have to address the need for an appropriate conscience clause. This is a complicated issue
because so many Catholic hospitals do not provide emergency contraception to rape victims
(82% in one stQdy), and therefore, a broad conscience clause that allowed religious hospitals to
opt out would render the E.O. meaningless. In addition, the current federal conscience clause
allows institutions, such as hospitals, to opt out of providing only abortion and sterilization
procedures; extending the conscience clause to any form of contraception would be a significant
, expansion of the conscience clause and a dangerous precedent.
At a ininimum, we should include a more narrow provider conscience clause. Such a
conscience clause would respect the rights of those with religious beliefs in opposition to ,
providing contraception, while ensuring that women who have been the victim of sexual assault
receive appropriate health care to prevent unwanted pregnancy. Providing only a narrow
conscience clause, however, may well provoke a Congressional reaction next year. As you
know, Congress is already energized about the provision of emergency contraception at schoolbased health clinics, and could react by imposing a very broad conscience clause, allowing more
than hospitals (health plans, for example) to opt out of providing emergency contraception, or
, contraception altogether., This would clearly be a step backwards. I discussed the issue of
conscience clauses with NARAL and they believe that 1) no conscience clause is necessary (not
even for providers), and 2) even if it provokes a Congressional backlash next year, this is a good
·
fight to wage, since the focus would be on rape victims. Given the risks of Con
and imposing a religious exemption for the provision of contraception, I am not spAfty
this is a battle we want to fight. Still, this is an intriguing idea, and if you are i &ut\diC
pursuing it I can do more research and talk to IlliS and Counsel's office.
�DOJ Report on the Accomplishments ofFACE
NARAL also suggestedthat DOJ prepare a report on the accomplishments of the Freedom of
_ Access to Clinic Entrances (FACE) law. Such a report could 1) provide a status report on how
FACE has been used to protect access to reproductive health clinics; 2) discuss pending cases ·
(perhaps cases in which indictments have been filed or grand juries impaneled); 3) address
whether bankruptcy has been used to avoid court-imposed fines resulting from clinic violence;
and 4) provide a roadmap for the future use of FACE to ensure safe access to reproduct!ve health
services. Such a report would lay an important predicate for maintaining prosecutions under
FACE, making it harder for the next Administration to shift course and drop pending cases.
NARAL has already talked to Eldie"Acheson at DOJ, who seemed interested in the idea.
~
'
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. note
'DATE
SUBJECTrriTLE.
07/11
re: CPSC meeting (1 page)
RESTRICTION
PS
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Heather Howard (Subject Files)
OAJBox Number: 21195
FOLDER TITLE:
CPSC [Consumer Product Safety Commission] Kids in Danger
Racheal Carter
20 12-0254-S
rc683
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
Pl National Security Classified Information [(a)(l) of the PRAJ
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA)
PS Release would .disclose confidential advice between the President.
· and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a dearly unwarranted invasion of
personal privacy ((a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIAJ
b(2) Release would disclose internal personnel rules and practices of
an.agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute ((b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
·o~.
b(6) Release would constitute a clearly un • a t t m ' n
personai privacy [(b)(6) oftbe FOIA]
·
b(7) Release would disclose information c m ·
enf e~ ent
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concernmg me regUlation of
. financi:ll institutions [(b)(il) of the FOIA)
b(9) Release would disclose geological or geophysical information.
. .1
concerning wells ((b)(9) ofthe FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�....,./
\
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Withdrawal/Redaction Sheet
· Clinton Library
DOCUMENT NO.
AND TYPE·
SUBJECTffiTLE
DATE
RESTRICTION
001. email
Wm G. White to Elena Kagan re: Draft HHS Language (partial) (1
page)
07/23/1997
P6/b(6)
002. fax
Renee Landers to Elena Kagan re: phone number (partial) ( 1 page)
07/23/1997
P6/b(6)
003. email
Nancy Min to Barbara Chow re: Conversation with Karen Nelson on
Hyde Provisions (2 pages)
06/25/1997
PS
004. memo
Charles Ruff and William Marshall to the President (4 pages)
06/10/1998
PS
'
COLLECTION:·
Clinton Presidential Records
Domestic Policy Council
Heather Howard (Subject Files)
OA/Box Number: 21196
FOLDER TITLE:
Abortion [Binder] [ 1]
Racheal Carter
2012-0254-S
rc652
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a))
. Freedom of Information Act- (5 U.S.C. 552(b))
PI National Security Classified Information [(a)(I) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRAI
PJ Release would violate a Federal statute ({a)(J) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRA]
PS Release would disclose confidential adviCe between the President
and his advisors, or between such advisors (a)(~) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ((a)(6) of the PRA] ·
·
b(l) National security classified information ((b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
. an agency [(b)(2) of the FOIAJ .
.
.· b(3) Release would ·viohite a Federal statute ((b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) ofthe FOIAJ
b(6) Release would constitute a Clearly un·u.e;r~r-l'l!'l'"'''n!li'Pt'lnl"'lft"'--.
personal privacy ((b)(6) ofthe FOIA]
b(7) Release would disclose information co
ed r I
nt
· purposes ((b)(7) of the FOIA)
·
b(8) Release would disclose information co cernin there ulation
financial institutions ((b)(S)' of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift. ·
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR.,Document will be reviewed upon request.
€0PVm
-I-·
�kdr-r
ALCl'v H'--
~vi.-i~
(
From: Nancy A Min@EOP@LNGTWY@EOPMRX@LNGTWY
*To: FOLEY_M@A 1@CD@LNGTVIJY
. *To: Barbara Chow@EOP@LNGTWY@EOPMRX@LNGTWY
Date: 6/25/97 1:15pm
Subject: Conversation with Karen Nelson on Hyde Provisions
Message Creation Date was at 25-JUN-1997 13:15:00
. This may interest you.
-------------------Forwarded by Nancy A Min/OMB/EOP on 06/25/97 01:15PM
Barbara E. Washington
06/25/97 01:11:31 PM
Record Type: Record
To: Nancy A Min/OMB/EOP
cc: Barry T. Clendenin/OMB/EOP, Mark E. Miller/OMB/EOP, NaniA
Coloretti/OMB/EOP
Subject: Conversation with Karen Nelson on Hyde Provisions
(
I spoke with Karen Nelson regarding the letter to the President that you faxed
to us last night. You had a question about the following statement in the
letter: "The Senate Finance Committee attached the same restriction (Hyde
Amendment) to the entire Medicaid program in addition to the Children's Health
"Initiative." This statement was not consistent with our understanding of what •
was in the language. The following explanation is pretty long, but Karen's
points were complicated.
Senate Medicaid Language
Karen said that the statement refers to the provision in the Senate Finance
Medicaid language that appears on page 55 of the legislation, in the "sanctions
for noncompliance by managed care entities" section. States may impose
sanctions on managed care organizations that fail to substantially "provide
medically necessary items and services." However, for the purposes of this
sanction authority, the term "medically necessary" shall not be construed as
requiring an abortion be performed for any individual except in the cases of
rape, incest or life of the mother."
She acknowledged that the provision in the SFC Medicaid language does not ·
really prohibit all Medicaid payments for abortion, it only means that if this
bill language passed n
de lan ua e was no lon er in the UHHS
app;=opriations bill. a ate would not be able to sanction a managed care
organization for refusing to provide abortion services (unless that abortion
was necessary because of rape, incest or to save the life of the mother).
However, she said that the more important point was that the Majority had
changed the definition of "medical necessity" in the Medicaid statute._
Historically, Medicaid coverage of abortion services has ridden on the
interpretation of the term "medically necessary services" to include abortion
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services. The term "medically necessary" is not currently defined anywhere in
the Social Security Act, only in regulation.
Karen said that by changing the definition of "medically necessary" to exclude
abortion .services in the law (even though it is only for the purposes of
managed care sanctions and is not a blanket prohibition), the Majority is
chipping away at the current' regulations which define "medically necessary"
services to include abortion services. Karen thought that because there is no
statutory definition of what is "medically necessary", courts could point to
this definition in the managed care sanctions section to overturn the
regulation.
She also said that she had heard "fifth hand" that someone was planning to move
· to strike this provision on the Senate floor because it violates the Byrd rule.
House and Senate Children's Health Language
· I asked her what she thought about the effect of the Hyde Amendment provisions
in the children's health titles of the House and Senate bills. I indicated to
her that after a preliminary review, staff thought that the Hyde Amendment
language in the children's health titles prohibits the use of the funds
allotted under the new Title XXI for abortion (with exceptions for rape,
incest, and life of the mother). Under this interpretation, the Hyde
Amendment language would affect the child health funds allotted under this n!=!W
title, whether the States choose to use it for Medicaid or for the other
purposes.
(
She said that she thought the construction of the amendments in the children's
health titles was not clear: She said that, if it passed, it would probably be
left up to the discretion of lawyers in the Administration whether or not the
prohibition would apply to Medicaid spending under the newtitle, or just the
new children's grant program.
She said that some could argue that the prohibition applied to all of the funds
allotted under the children's health title, whether the State chooses to use
the funds for Medicaid or a new grant. She said, on the other hand, though,
one could also argue that the title allows states to spend Medicaid funds (from·
the Medicaid appropriation) equivalent to the amount of funds allotted under '
the new title. Under this scenario, the funds would come from the Medicaid
appropriation, and a State's allotment under the new title would be decreased
1
·
by an equal amount. Theoretically under this ·scenario, if there was no Hyde
Amendment on the Medicaid appropriation, Medicaid funds spent on children's,
health would not be subject to the Hyde Amendment language in Title XXI. · ·
She said that regardless of which interpretation is correct (which she said is
academic at this point), they will urge the leadership to remove the
restrictions.
(
COPY
�
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2012-0254-S - Heather Howard, Domestic Policy Council
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