By Timothy Stoltzfus Jost
On March 12, as required by the Patient Protection and Affordable Care Act, the federal government released regulations that will determine how state health-insurance exchanges will work. Within days, the law's opponents charged once again that "tens of millions of Americans will be getting federal subsidies to pay for abortions." What's more, according to the critics, the new regulations will end up tricking pro-life Americans into inadvertently signing up for insurance plans that cover abortions.
Not true. Rather, the Affordable Care Act may be the single most pro-life piece of legislation ever adopted by Congress. Once the legislation is fully implemented, it will extend insurance coverage for lifesaving medical care to millions of Americans, thousands of whom die each year because they lack access to care. The law explicitly does not allow insurers to "make coverage decisions, determine reimbursement rates, establish incentive programs, or design benefits in ways that discriminate against individuals because of their age, disability, or expected length of life." All insurers in the individual and small-group market will be required to cover maternity care, a benefit often missing from today's individual policies. None will be required to cover elective abortions.
Moreover, the Affordable Care Act prohibits use of the new federal tax subsidies created by the law to pay for abortions, except where they can otherwise be covered by federal funds (in cases of rape, incest, or to save the life of the mother). The Affordable Care Act also protects the conscience rights of health care providers to refuse to perform abortions, and it prohibits discrimination against such providers.
So why do pro-life advocates continue to attack the Affordable Care Act? The law requires states to establish government-regulated exchanges, or markets, where consumers can shop for health insurance plans and, if necessary, pay for them using federal tax credits. The Affordable Care Act's provisions prohibiting the use of federal funding to pay for abortions covered through the exchanges are complicated, and for those determined to find a sinister purpose in the legislation, these provisions and the regulations that implement them can be twisted to suggest one.
The March 12 regulations governing health insurance exchanges are intended to implement the Affordable Care Act and simply repeat — often verbatim — the statute's language regarding abortion. The regulations do not, as has been suggested, introduce new proabortion measures. In state insurance exchanges, Americans will be able to choose a private insurance plan from several offerings. Lower- and middle-income Americans will be eligible for federal tax credits that will help them pay for the plan they choose. The private plans offered through exchanges must cover specific basic benefits — including maternity care — but otherwise can offer whatever benefits consumers might want.
The Affordable Care Act explicitly permits states to prohibit plans in the exchange from covering abortions; one-third of states have already taken advantage of that provision to pass laws barring all exchange plans from covering abortion (twice as many as now prohibit private insurers generally from paying for abortions). In the absence of a state law prohibiting abortion coverage, the Affordable Care Act allows insurers the choice of issuing policies that do or do not cover abortions. The federal government will make national "multistate" plans available through individual state exchanges. At least one multistate plan that does not cover elective abortions must be available in each state. But no exchange plan is required to cover abortions.
If an insurer decides to cover abortions, it must set up a complicated and burdensome system to ensure that no federal dollars pay for abortions. The law and regulations require insurers that offer abortion coverage to first determine the "actuarial value," that is, the full cost, of providing abortion coverage to those who want to buy it. Terminating a pregnancy costs insurers much less than providing maternity and newborn care over the life of an insurance policy. The Affordable Care Act, however, specifically prohibits insurers from taking into account any savings they will receive from covering abortions — including the costs of prenatal care, delivery and postnatal care — when they determine the cost of abortion coverage.
How will abortion coverage in the exchanges be paid for? In their National Review article "What Rules Us," Dorinda C. Bordlee, Nikolas T. Nikas, and Mark Rienzi claim that the Affordable Care Act "will soon mandate that every single individual enrolled in such a plan make payments to a private fund designated solely to the payment of abortion." That isn't wrong. Insurers will have to charge each person who enrolls in a plan that covers abortions a special, separate, premium to cover only abortions. But then Bordlee, Nikas, and Rienzi go further, claiming, "this scheme allows Obamacare to get around the controversial issue of government-funded abortions with a new funding source: mandatory private payments by you, the insured."
Not quite. Here's what the law actually requires: Only those who choose to purchase abortion coverage will be required to pay that separate premium. And if an employer helps to pay for the coverage, then the employer must also pay a special, separate, premium. It is "mandatory" only in the sense that you can't get a Frappucino without making a "mandatory private payment" to Starbucks.
According to the Affordable Care Act, the separate premium must equal at least one dollar (the law states that abortion coverage can't be offered for free), but will probably cost more. Those funds have to be kept in special, audited, segregated accounts, which must be policed by state insurance commissioners. Federal tax credits and cost-reduction subsidies cannot be used to cover the separate premium. No federal funding will go to pay for abortions not otherwise paid for by federal programs already.
That arrangement is not an "accounting gimmick," as Rep. Chris Smith, R-N.J., has claimed. Rather, it is a carefully designed system for keeping federal funding and private payment for abortions completely separate. This is similar to auditing requirements that currently ensure that federal dollars do not mingle with state funds that cover elective abortions for Medicaid enrollees.
Today, abortion coverage is offered by many private insurers, perhaps most. Many pro-lifers currently have abortion coverage through their employers without even knowing it. Yet after the exchanges are in place, people covered through exchange plans will have to opt in to abortion coverage and pay a separate payment for it. Most people who get health insurance from their employers have a portion of the premiums deducted from their paychecks. In cases where employers and employees share responsibility for paying premiums, both parties will have to make separate payments for abortion coverage. Few women plan to have abortions; it's unlikely that many will go to the trouble (and embarrassment) of purchasing separate coverage or trying to convince their employer to pay for it. Moreover, chances are that many insurance companies will simply not offer abortion coverage to avoid the hassle of setting up and maintaining separate accounts.
But how will people know if they are enrolling in a plan that covers abortion? Richard Doerflinger of the United States Conference of Catholic Bishops' Pro-Life Activities office says "government will forbid the insurers to give people any special warning that abortion is included." Is there a malicious plot afoot to trick people into signing up for abortion coverage, perhaps as a political gift to abortion providers?
Not at all. Under the Affordable Care Act and the exchange regulations, people will learn whether a plan covers abortion in the same way they will learn about all the other features of available plans: through the summary of benefits and coverage. That document is an eight-page, plain-language, comprehensive description of plan coverage, limitations and exclusions. It is the tool through which all exchange enrollees will learn about and choose their plan. Plans must disclose in the summary whether they cover abortions. No one is going to be duped into paying for elective abortion coverage they don't want, because the only way to get such coverage is to request it.
Yes, the Affordable Care Act and implementing regulations do prohibit plans from advertising in marketing materials that they offer abortion coverage — or that they offer the cheapest abortion coverage. But nothing prohibits plans from advertising that they do not cover abortions, nor will anything keep pro-life groups from informing the public about plans without abortion coverage. In the exchanges, abortion coverage will almost certainly be far less common than it is today. It is lamentable that some pro-lifers cannot acknowledge that fact, choosing instead to take this moment as one more opportunity to malign a profoundly pro-life law.
Timothy Stoltzfus Jost is Robert L. Willett Family Professor of Law at Washington and Lee University School of Law. His commentary first appeared in the May 4 issue of Commonweal. © 2012 Commonweal Foundation, reprinted with permission.
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