This week, a commotion [3] arose over the question of whether Pre-existing Condition Insurance Plans, also known as high risk pools [4], can include abortion coverage. The Obama Administration responded immediately by imposing a total ban on abortion coverage in the pools that echoes the Stupak Amendment [5], even though nothing in the law requires such action.
PCIPs are temporary health insurance pools that states or the federal government must establish or expand in every state to cover people who do not currently qualify for individual health insurance because of a preexisting condition. PCIP coverage will expire in 2014 when enrollees become eligible for the new health insurance exchanges that will become operational that year. PCIPs will be funded with a combination of federal, state, and private money.
Women entering these plans are, by definition, those who have experienced serious medical conditions—so serious that insurers are unwilling to sell them insurance. In other words, those who get pregnant are already at a heightened risk for needing an abortion for health reasons when compared to the general population.
Pennsylvania–apparently unintentionally [6]–walked into the abortion debate by approving a program that potentially covered abortion. The plan [7] said no “elective” abortions would be covered, but referenced a statute that does not define the term “elective” and allows an abortion if it is deemed “necessary” by a physician based on “all factors (physical, emotional, psychological, familial and the woman's age) relevant to the well-being of the woman.” The only situation deemed categorically unnecessary by the statute is sex selection.
Rep. John Beohner and the National Right to Life Committee raised a stink, and the very next day, HHS Spokeswoman Jenny Backus had this to say [8]:
As is the case with FEHB plans currently, and with the Affordable Care Act and the President's related Executive Order more generally, in Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) except in the cases of rape or incest, or where the life of the woman would be endangered.
Our policy is the same for both state and federally run PCIP programs. We will reiterate this policy in guidance to those running the Pre-Existing Condition Insurance Plan at both the state and federal levels. The contracts to operate the Pre-existing Condition Insurance Plan include a requirement to follow all federal laws and guidance.
But here’s the catch, nothing in federal law actually restricts the use of federal or state money for abortion in PCIPs.
The language that was inserted by Sen. Ben Nelson into the Patient Protection and Affordable Care Act that prohibits federal money from being spent on abortion in circumstances beyond the Hyde Amendment [9] exceptions of life, rape, and incest clearly applies only to plans operating in insurance exchanges.
Sec. 1303 of the PPACA says a state may elect to prohibit or allow “abortion coverage in qualified health plans offered through an Exchange” and that, subject to whether a state has made such an election, “the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion] services.” If a qualified plan decides to offer coverage of abortion beyond the Hyde exceptions, it must collect separate premiums from each enrollee to pay for abortion coverage and all other coverage, and it may not pay for abortions with federal tax credits or cost-sharing reductions that were allocated under the PPACA for the purpose of subsidizing premiums for plans offered in the exchanges. There are no other restrictions on abortion funding contained in the PPACA.
In an eleventh-hour political compromise to obtain health reform votes from antiabortion Democrats, President Obama agreed to sign an executive order [10] that reiterated the funding restrictions in health insurance exchanges and also, in direct response to last-minute concerns raised by abortion opponents, applied funding restrictions to community health centers.
The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly created health insurance exchanges… I hereby direct the Director of the OMB and the Secretary of HHS to develop, within 180 days of the date of this order, a model set of segregation guidelines for State health insurance commissioners to use when determining whether exchange plans are complying with the Act's segregation requirements, established in section 1303 of the Act, for enrollees receiving Federal financial assistance….
The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program. Existing law prohibits these centers from using Federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language…. I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law.
A common method of legal interpretation posits that when items in a legal document are specifically listed, they exclude any items that are not mentioned unless there is a catch-all statement that says unenumerated items are not excluded. Case in point: the Ninth Amendment says of the Bill of Rights, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” That means the Constitution can be interpreted to contain rights that are not explicitly designated.
The Executive Order, on the other hand, contains no such statement indicating that it might cover more than the addressed items, namely the exchanges and the CHCs. In fact, when the Executive Order was signed, it was widely seen as simply reiterating what was already in the PPACA and current law. Indeed, abortion opponents repeatedly lambasted it as a “worthless piece of paper [11].” And a colloquy [11] between reporters and Obama spokesperson Robert Gibbs after the Order was signed confirmed that it did not otherwise expand the scope of current funding restrictions:
MR. GIBBS: Well, I would say the President believed that the law -- the President has always believed that health care reform should be about that, not about other issues. The President did not, in health care reform, believe we did change the status quo and believes that this reiterates that it’s not changed….
Q I read the executive order, and it says that’s a reiteration of what already exists.
MR. GIBBS: Well, there you go.
Q So it’s not necessary?
Q Not legally necessary?
MR. GIBBS: We reiterated --
Q Might have been necessary for other reasons, but it’s not legally necessary.
MR. GIBBS: No, we reiterated the status quo, and we're comfortable reiterating that status quo.
Q -- comfortable for a legal purpose?
MR. GIBBS: We're comfortable reiterating that status quo.
Q Doesn't it diminish the whole purpose of a presidential -- of an executive order if all he’s doing is reiterating what’s already in the law? Why would he do that?
MR. GIBBS: No. No. We don't see that as diminishing.
While the status quo, at the time of the PPACA’s passage, restricted abortion funding in numerous areas, it did not restrict it in all areas. There is not one, over-arching law that restricts abortion funding for all sources of federal funds. Rather, abortion opponents have had to fight to obtain funding restrictions for each separate source. Moreover, those restrictions are not permanent; they must be re-approved each year through the annual appropriations process and their contours have changed [12] over time. In fact, should the scope of the Hyde Amendment’s restrictions on Medicaid funding change in the future, it will trigger similar changes in the health insurance exchanges and elsewhere.
It is understandable that the Administration might now feel the need to honor the “spirit” of the compromise that resulted in the Executive Order. But the whole point of the compromise was to preserve the status quo, which included both restricted and unrestricted spheres of abortion funding. Moreover, the terms of the agreement were carefully negotiated. Abortion opponents who participated in the bargaining did not raise concerns about high risk pools or other specific potential sources of federal funding, and they should be able to live with the deal they made.
The worst of it is that the Administration could have at the very least set up something akin to the Hyde Amendment and the PPACA by giving states the option of using state or private money to cover abortion care costs. Instead, the Administration cited the Federal Employees Health Benefits Plan specifically as the controlling precedent for the PCIPs. Again, the Backus statement:
As is the case with FEHB plans currently, and with the Affordable Care Act and the President's related Executive Order more generally, in Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) except in the cases of rape or incest, or where the life of the woman would be endangered.
Our policy is the same for both state and federally-run PCIP programs. We will reiterate this policy in guidance to those running the Pre-existing Condition Insurance Plan at both the state and federal levels. The contracts to operate the Pre-existing Condition Insurance Plan include a requirement to follow all federal laws and guidance.
The FEHBP, like the Stupak Amendment, imposes a total ban on non-Hyde abortion care, meaning that non-federal money cannot be used to supplement premiums in order to purchase a plan that includes abortion coverage. Thus, without even any political or legislative benefit to receive in exchange, the Obama Administration has imposed a more restrictive abortion funding rule on PCIPs than is required for health insurance exchanges or Medicaid.
One would expect a Bush-style administration to “assume” that Hyde applies to the high risk pools or to interpret the Executive Order broadly to cover more than the exchanges and CHCs. But it is extremely disappointing to see an ostensibly pro-choice administration go out of its way to appease those who have always opposed health reform and who will continue to make political targets of those who voted for reform regardless of what the Administration does on abortion. It is never ok to trade women’s rights for political reasons, but in this case the calculus seems to be particularly bankrupt.