A Careful Reading: Could federal health care money be used for abortion?
Since the Affordable Care Act became law in March 2010, the two chambers of Congress have held diametrically opposed views. The House, under Republican control since 2011, has voted many times to repeal the entire act; the Democratic-controlled Senate has resisted changes.
The Catholic bishops’ conference has not joined in either agenda. Supporters of national efforts to achieve universal health coverage for almost a century, the bishops have urged specific reforms in accord with the moral principles they articulated during consideration of the A.C.A. The bishops support basic, life-affirming health coverage for everyone, including immigrants; compliance with longstanding federal policies on abortion funding; and respect for rights of conscience.
The A.C.A. remains deficient in these areas. The bishops have urged Congress to pursue comprehensive immigration reform, including reform of the way our health laws treat immigrant families. On abortion issues—both federal funding and conscience rights—the implementation of the A.C.A. over four years has brought its defects into sharper focus.
One barrier to progress on the act’s problems regarding abortion is that many, including some Catholics, are confused about those problems or deny that they exist. Here, then, are the abortion-related problems the bishops’ conference finds in the A.C.A.
1) Under existing federal jurisprudence, federal funds appropriated by the A.C.A. are available for elective abortions. For decades, federal funding of abortion has been prevented by a patchwork of appropriations riders that must be renewed each year, as well as a few more permanent provisions governing particular programs like the Children’s Health Insurance Program. Each provision governs only the bill it amends. The first and most important appropriations rider, the Hyde Amendment, amends the Labor, Health and Human Services and Education appropriations bill and prevents only use of the funds appropriated by that act from supporting abortion (except in the rare cases of danger to the mother’s life and pregnancy due to rape or incest).
The A.C.A. is unusual because it both authorizes and appropriates billions of dollars for its numerous programs. The usual process is for Congress to authorize a program, either permanently or for several years, and then appropriate that program’s level of funding for a given year through separate annual appropriations bills. The A.C.A. bypasses the appropriations process, thus bypassing the Hyde Amendment and similar riders, and for many programs it supplies nothing in their place.
It is useful to review the history of the Hyde Amendment to understand the importance of this absence of language prohibiting the use of federal money for abortion. Congress first approved Hyde in 1976, after discovering that the Medicaid program (funded by the Labor/Health and Human Services appropriations bill) was paying for an estimated 300,000 abortions a year. The Medicaid statute, enacted in 1965 when abortion was generally a crime, nowhere mentions abortion as health care. But federal courts concluded that once legalized by the Supreme Court, abortion could be construed as part of Medicaid’s broad mandate for family planning, physicians’ services and other items a physician deems “medically necessary.” In the context of abortion, moreover, phrases like “medically necessary” were to be read in light of the Supreme Court’s 1973 decisions, which defined a “health” reason for abortion to include anything a physician thinks will serve a woman’s social, emotional or familial “well-being”—hence the 300,000 tax-funded abortions a year. If Congress wanted to stop this, it had to enact a provision clearly saying so. That is why it approved the Hyde Amendment.
The Hyde Amendment was modified in 1993 so it no longer prohibited funding abortions in cases of rape or incest, and the Clinton administration said funding these abortions was now mandated by the underlying Medicaid law. No state could refuse to provide matching funds for these abortions, even if its state constitution prohibited funding abortion except in cases of danger to the mother’s life. The federal courts consistently sided with the administration and invalidated “life only” state laws. Under these precedents, if a new health law is not governed by Hyde or similar existing provisions and that law fails to supply Hyde-like language of its own, its funding is available to pay for abortions.
One area of concern is the Community Health Centers program. For decades these centers have offered free or low-cost medical care to Americans who may not otherwise find a provider. To qualify as such a center, a provider must offer “family planning,” “obstetrics” and “gynecology” services. Since 1976 the Hyde Amendment has prevented funding of elective abortions under such categories. The A.C.A. directly appropriates $11 billion to expand the C.H.C. program, however, bypassing Hyde while supplying no abortion limitation of its own.
President Obama’s executive order notes that an existing regulation forbids use of H.H.S. funds for abortion; but that regulation only implements the annual Hyde Amendment and relies on that amendment for its validity. The order also says that “under the [Affordable Care] Act” this policy has been extended to cover A.C.A.’s funds; but no provision of the A.C.A. does this, and the order does not create new law on the issue.
Are elective abortions being subsidized with these A.C.A. funds now? We do not know. If not, that result would seem to be only one lawsuit away.
Another A.C.A. program has a more visible record. The act appropriated $5 billion to pay for medical claims in a temporary “high risk” insurance pool for people who could not obtain health coverage due to pre-existing conditions. The program is administered by states, with H.H.S. approving the state benefits packages and providing all the public subsidies for coverage.
In July 2010, pro-life groups discovered that at least three states had included elective abortions in high-risk plans that had been approved by H.H.S. The resulting protests inside and outside Congress ultimately led H.H.S. to announce that it would exclude elective abortions—a decision criticized by pro-abortion groups, who said there was nothing in the A.C.A. requiring this result. The Congressional Research Service confirmed that these groups were right: There was nothing in the A.C.A., or in President Obama’s executive order issued at the time of the act’s approval, to exclude abortion. H.H.S. Secretary Sebelius had the discretion to refuse to fund abortions only because this particular provision of the A.C.A. explicitly authorized her to set (unspecified) additional restrictions not found in the statute. Such authority, allowing an executive decision not to fund abortions, is absent from other A.C.A. provisions, and the secretary can reverse her decision on this program at any time.
2) The act violates the policy of all other federal health programs by using federal funds for health plans covering elective abortions. Again, we need a little history. In 1997 Congress found that the Hyde Amendment was being circumvented. Some states were using their federal Medicaid funds to enroll low-income patients in H.M.O.’s, where one annual fee qualifies a patient for all medical care provided by the plan’s network. There are no bills for individual services. Many H.M.O.’s covered elective abortions and were paid by the federal government to provide them to these Medicaid patients. So Congress modified the Hyde Amendment to prevent this by barring use of Labor/H.H.S. appropriations funds to help purchase a health plan that includes such abortions. This same policy prevails in every other program where federal funds combine with other funds to buy a health plan, most notably the Children’s Health Insurance Program and the Federal Employees Health Benefits Program. For 16 years, this has been part of what it means to ban federal abortion funding.
The A.C.A. discards this longstanding policy. Federal subsidies, in the form of advanceable, refundable tax credits, will be used to help purchase health plans that cover elective abortions. The A.C.A. calls these credits “federal funds,” and the Congressional Budget Office estimates that 73 percent of the funds will be paid as checks drawn on the Treasury (because the credits often exceed enrollees’ tax liability). Each such plan must require each and every enrollee to pay a special premium solely for elective abortions, to be placed in a separate account from the federally subsidized premiums for the overall plan.
This has been called a “compromise.” But it is a compromise between the policy that every president and Congress agreed to for 16 years and a more pro-abortion agenda. It violates half the Hyde Amendment.
Supporters of the A.C.A. have said it takes power away from insurance companies and gives it back to the consumer. This provision does the opposite. The insurer alone chooses whether to cover elective abortions—and most for-profit insurers want to do so because abortion is cheaper than childbirth (and much cheaper than covering new children in a family health plan). The government then provides the same federal subsidy as for other health plans and requires the plan to collect a direct subsidy specifically for abortions from all enrollees—including those who have a strong moral objection. This is the first and only time since Roe v. Wade that the federal government has forbidden private organizations to allow an exemption for those with moral objections to abortion.
Can pro-life Americans choose a health plan in the marketplace without elective abortions? Yes, but it is easier said than done. The A.C.A. forbids insurers to inform consumers about their abortion coverage except as part of the long list of benefits provided to those already enrolling. It also forbids them to reveal how much of the enrollee’s premium will go into the separate account for abortions. Thus a common impression that enrollees will write a “separate check” for abortion, which pro-life dissenters might try refusing to sign, is apparently false—the funds are separated at the insurer’s end. Some states have said that every health plan on their exchange will cover elective abortions.
This is troubling in light of polling commissioned by the bishops’ conference during consideration of the A.C.A. Most survey respondents opposed measures that require Americans to support abortion with their tax dollars or their premiums; 68 percent said that if the choice were theirs they would not want abortion in their health coverage. On each question, women gave stronger pro-life responses than men. The majority of American women who oppose abortion coverage will now often face a sad dilemma: Either pay for abortions anyway or have greatly reduced options when looking for a health plan to meet their families’ needs.
An example is health coverage for members and key staff of Congress. Before passage of the A.C.A., all federal employees received their coverage under the widely envied Federal Employees Health Benefits Program mentioned earlier. Each employee could choose among dozens of health plans and receive an employer subsidy from the federal government paying up to 75 percent of their premium. No plan could include elective abortion. Federal employees in Washington, D.C., could choose among over 100 federally subsidized health plans without subsidizing such abortions. Under the A.C.A., members and key staff of Congress are transferred to their local health exchanges—where they will still receive the employer subsidy, except that this subsidy will now pay for pro-abortion health plans. Congressional employees in Washington, D.C., who do not want to subsidize elective abortions can now choose from among only nine health plans out of 121 on the district’s exchange.
Some say the elaborate “segregation of funds” exercise within health plans keeps “taxpayer funds” from paying for elective abortions on these exchanges. That statement is misleading in two ways. First, the federal tax subsidies for plans covering abortion still violate the abortion policy that prevails in every other federal program. Second, the money that Americans will have to pay for other people’s abortions, as a condition for getting the individual health coverage that meets their needs, is still mandated by the federal government—insurers that cover abortion are forbidden to let anyone opt out. And that money is earmarked more directly and specifically for abortion than any tax Americans have ever paid before. The fact that it is a mandatory premium rather than a “tax” scarcely seems relevant to the moral issue involved.
3) The A.C.A. lacks important conscience protections. This is clear from the dozens of lawsuits on their way to the U.S. Supreme Court over the mandate for covering contraception and female sterilization as “preventive services.” Even that contraceptive mandate abandons a long bipartisan tradition in Congress and the White House of exempting those with a moral or religious objection.
The “preventive services” mandate raises potential conscience problems on abortion in three ways. First, some mandated drugs and devices can prevent the survival of a new human embryo before implantation (e.g., the copper IUD) or even afterward (ella, a close analogue to RU-486). That would be an abortion in Catholic teaching and in the eyes of many others, including the Christian business owners now before the Supreme Court. Second, if the Food and Drug Administration follows the lead of the World Health Organization and accepts RU-486 (mifepristone) as an “emergency contraceptive,” the drug known worldwide as the “abortion pill” would automatically become part of the mandate. Third, arguably no language in the A.C.A. stops this or a future administration from mandating even surgical abortion as a “preventive service” (preventing unwanted births instead of unintended pregnancies). The A.C.A. says the government cannot mandate abortion as an “essential health benefit,” but that provision does not mention the distinct mandate for “preventive services.”
More broadly, the final version of the A.C.A. deleted an important conscience provision from the original House-passed bill, which incorporated the Hyde/Weldon Amendment that has been part of Labor/H.H.S. appropriations bills since 2004. That law withholds Labor/H.H.S. funds from a federal agency or program or a state or local government that discriminates against health care entities that refuse to provide, refer for, pay for or provide coverage of abortion. Like the Hyde Amendment on funding, the Hyde/Weldon policy on conscience does not govern funds appropriated by the A.C.A.
4) Finally, it has been said that federal judges in Virginia and Ohio have ruled there is no abortion funding in the A.C.A. That is not quite true.
In a Virginia case (Liberty University v. Lew), the Fourth Circuit Court of Appeals said Liberty University had failed to prove it is forced by the A.C.A. to provide or pay for abortion coverage. In this regard the Fourth Circuit was correct. The university could purchase or sponsor student and employee coverage without elective abortions. In fact, Virginia is one of 24 states that have rejected the A.C.A.’s approach and banned most abortion coverage on their own state exchange. This case does not contradict what is said above about the A.C.A.’s own abortion policy.
In Ohio (Susan B. Anthony List v. Driehaus), a congressman claimed that a pro-life group had defamed him by saying during his re-election campaign that he voted for federal abortion funding by supporting the A.C.A. The trial judge rejected a motion to dismiss the case, stating that the pro-life group had not identified “any provision in [the A.C.A.] that appropriates taxpayer funds to pay for abortions.” The court did not reach a decision on the merits because the congressman’s suit was later dismissed on other grounds. But the judge’s initial comment was correct: No provision in the A.C.A. expressly appropriates money for abortions themselves. As explained above, it is the absence of an express exclusion that, under existing jurisprudence, creates the problem. And the A.C.A. does appropriate funds for health plans that cover abortions.
A proposal that would settle many such issues is the “No Taxpayer Funding for Abortion Act” (H.R. 7, S. 946). As approved by the House in January, H.R. 7 would codify the policy of the Hyde Amendment and similar provisions, so they would no longer be subject to annual attack during the appropriations process. This policy, made consistent across the federal government, would also govern the A.C.A. and future legislation.
Health plans on the state exchanges would make this change in the next plan year, 2015; until then, these plans would at least have to disclose their abortion coverage and its cost to potential enrollees. Beginning in 2015, those wanting elective abortion coverage could purchase an overall plan that includes it, without federal subsidy; or they could purchase a plan without such abortions, receive the subsidy and choose to purchase separate abortion coverage with non-federal funds. The minority who want abortion coverage could purchase it; the majority who do not want it would not have it forced on them, either absolutely or as a condition for obtaining the health plan best for their families.
The reaction to H.R. 7 from legal experts who support abortion has been interesting. One expert, Sara Rosenbaum, has testified against the bill in Congress and had opposed the original Stupak Amendment, which H.R. 7 closely resembles in its effect on the A.C.A. The Stupak amendment was supported in 2009 by the bishops’ conference and by 64 House Democrats and approved by the then Democratic-controlled House; but it was rejected by the Senate and is absent from the final A.C.A.
Unlike some in Congress, Rosenbaum does not make the false claim that H.R. 7 bans privately purchased abortion coverage. Instead she notes that over the decades, Medicaid and other federal programs have excluded abortion from the category of health care that the government expects Americans to obtain and support. If the A.C.A. further increases the role of the federal government in health coverage and applies this same policy to federal subsidies for a broader class of Americans, this may produce a “tipping point” at which health care without elective abortion becomes the norm. Abortion and abortion coverage will still be legal and available, but rare.
To this I would add: Yes, and what is wrong with that? Pro-choice presidents have said they want abortion to be legal but rare. The great majority of American men and women do not want to support abortion with their taxes or health premiums. A recent poll of obstetrician-gynecologists showed that only 14 percent perform abortions, and the latest abortion statistics show abortion rates and the number of abortion providers at their lowest since 1973. To all but the most committed enthusiasts for abortion, that tipping point cannot arrive too soon.