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Health Care Financing Reform: (30) Abortion Funding

by Professor Will Huhn on October 1, 2009

in Health Care,Wilson Huhn

    At the Senate Finance Committee hearing on Wednesday Senator Orrin Hatch (R-UT) proposed amendments to the Baucus bill further restricting the use of federal funds for abortions.  The amendments were defeated by votes of 10-13, largely along party lines – one Democrat (Senator Conrad) voted for the amendments, and one Republican (Senator Snowe) voted against them.  The issue is a difficult one.  More below.

     Under the Constitution, women have a right to terminate a pregnancy in its early stages, but the government does not have a duty under the Constitution to pay for an abortion.  Many voters have moral or religious objections to abortion and as a result federal law (and the laws of many states) prohibit the use of government funds to pay for abortions except where the life of the woman is threatened or where the pregnancy is the result of rape or incest.  Medicare and Medicaid are subject to these limitations on abortion funding.

     However, it would be unconstitutional for the government to prohibit private health insurers from offering coverage for abortions, and it would also be unconstitutional for the government to prohibit women from purchasing health insurance covering abortions.  The constitutional standard that applies to this situation is easy to state – the government may not impose an "undue burden" or create a "substantial obstacle" hindering a woman from having an abortion.  Laws prohibiting the purchase or sale of private health insurance covering abortions would definitely qualify as "undue burdens" or "substantial obstacles."

     It is no secret that abortions are far less costly than childbirth, let alone the health care costs associated with raising a child.  Accordingly, private insurers are happy to include coverage for abortions, and most employer-based insurance policies extend coverage for abortions.  Furthermore, under present law the government in effect heavily subsidizes the cost of employer-based health insurance  through the tax exemption that does not count the employer contributions to employees' health insurance premiums as income.  But under any of the health care insurance reform plans under consideration in Congress the government will be changing the nature of the subsidy for health insurance.  Instead of the current tax exemption, which is a kind of "hidden" subsidy because no money actually changes hands between the government and taxpayers, under the Baucus bill as well as the Kennedy bill and the bills emerging from the House of Representatives the federal government will be requiring individuals to purchase health insurance and will offer subsidies directly to low-income individuals to help pay the premiums.  Republicans like Orrin Hatch take the position that no insurance policy purchased with federal funds may contain coverage for abortions – that abortion coverage should be the subject of a separate rider, purchased separately by each and every person who chooses to pay for it.  The amendment to that effect that Senator Hatch offered today, and that the Senate Finance Committee rejected, is set forth at the end of this posting.

     As I read the Baucus bill, (the relevant portions of which are also set forth below) the Democrats are taking the position that so long as the individual's share of the private health insurance premium exceeds the cost of abortion coverage, the insurer may offer and the individual may select coverage for abortions without having to purchase a separate rider.  Furthermore, the Baucus bill would require that at least one of the insurance policies offered on the Exchange must include coverage for abortions – that is, the government-run Exchange through which people will gain access to comprehensive health insurance policies at low cost must contain at least one insurer who would pay for abortions.

     Senator Hatch has a point – people who are morally opposed to abortions should not have to pay for them.  But the Democrats have a point as well – the government may not pass laws that interfere with the right of a woman to choose to have an abortion, and if the government were to make it more difficult for women to purchase private health insurance covering abortions that may well be considered to be an "undue burden" or "substantial obstacle" that is set in their path.

     According to a posting by Igor Volsky at ThinkProgress, during the committee hearing Senator Debbie Stabenow (D-MI) stated to Senator Hatch,

 In fact, with all respect to my friend, as a woman, I find it offensive that in hereâ any woman, any family purchasing through the exchange, if they did not receive any tax credit, would be prohibited from having the full range of health care options that they may need coveredâ¦.This is an unprecedented restriction on people who paid for their own health care insuranceâ¦the assumption that somehow a woman or family would say, âyou know some did we may have an unintended pregnancy, so weâll get a separate rider or maybe my pregnancy is going to have a crisis, many, many crises, and so weâre going to find some other rider.â In my judgment, I donât even know how that would work.

     Following the hearing Senator Hatch released this statement:

âThe American people do not want, and should not be expected, to foot the bill for abortions,â said Hatch. âI am very disappointed that the Senate Finance Committee did not accept my amendment that would ensure this did not happen, especially given the fact that Chairman Baucus has made it clear during this mark-up that he did not want federal taxpayer dollars to pay for abortions.

âThat being said, I will fight tooth and nail to make sure once this bill gets to the floor it is clear in the language that taxpayersâ dollars will not be used to fund abortions through the new programs nor through subsidies created in the bill.â

     Here are the existing provisions regarding abortion coverage from the Baucus bill, coontained in Subtitle C of web version of the bill posted by OpenCongress:

Application of State and Federal Laws Regarding Abortion

Current Law

The performance of and payment for abortions is regulated by both state and Federal laws. State law, for example, sometimes prescribes parental notification, waiting periods and other procedural requirements before an abortion may be performed. Under Federal law, certain kinds of Federal funds may not be used to pay for abortions and certain recipients of Federal funds may not discriminate against specified health care entities that perform or refuse to perform, pay for, provide referrals for, or provide training for abortions.

Chairmanâs Mark

This provision would ensure that state laws regarding the prohibition or requirement of coverage or funding for abortions, and state laws involving abortion-related procedural requirements are not preempted. The provision similarly provides that Federal conscience protections and abortion-related antidiscrimination laws would not be affected by the bill. The rights and obligations of employees and employers under Title VII of the Civil Rights Act of 1964 would also not be affected by the bill. In addition, this bill does not affect state or Federal laws, including section 1867 of the Social Security Act (EMTALA), requiring health care providers to provide emergency services.

Abortion Coverage Prohibited as Part of Minimum Benefits Package

Current Law

Currently, Federal funds may be used to pay for abortions only if a pregnancy is the result of an act of rape or incest, or where a woman suffers from a physical disorder, physical injury, or physical illness that would place the woman in danger of death unless an abortion is performed. However, many private insurance plans include coverage for abortion beyond these limited categories.

Chairmanâs Mark

This provision provides that abortion cannot be a mandated benefit as part of a minimum benefits package except in those cases for which Federal funds appropriated for the Department of Health and Human Services are permitted. A qualified health plan would not be prohibited, however, from providing coverage for abortions beyond those for which Federal funds appropriated for the Department of Health and Human Services are permitted. Federal funds continue to be prohibited from being used to pay for abortions unless the pregnancy is due to rape, incest, or if the life of the mother is in danger.

Required Segregation of Public Funds

Current Law

No provision.

Chairmanâs Mark

No tax credit or cost-sharing credits may be used to pay for abortions beyond those permitted by the most recent appropriation for the Department of Health and Human Services. In addition, insurers participating in any state-based exchange that offer coverage for abortion beyond those permitted by the most recent appropriation for the Department of Health and Human Services must segregate from any premium and cost-sharing credits an amount of each enrolleeâs private premium dollars that is determined to be sufficient to cover the provision of those services.

The Secretary shall also establish a process using an estimated actuarial value by which insurers that provide coverage for abortions beyond those permitted by the most recent appropriation for the Department of Health and Human Services must demonstrate that no federal premium and cost-sharing credits are used for the purpose of paying for such abortions.

Actuarial Value of Optional Service Coverage

Current Law

No provision.

Chairmanâs Mark

The Secretary would be required to estimate, on an average actuarial basis, the basic per enrollee, per month cost of including coverage of abortions beyond those permitted by the most recent appropriation for the Department of Health and Human Services under a basic plan. In making such estimate, the Secretary may take into account the impact of including such coverage on overall costs, but may not consider any cost reduction estimated to result from providing such abortions, such as prenatal care. In making the estimate, the Secretary would also be required to estimate the costs as if coverage were included for the entire covered population, but the costs could not be estimated at less than $1 per enrollee, per month.

Rules Regarding Coverage of and Tax Credits for Specified Services

Current Law

No provision.

Chairmanâs Mark

The Secretary would ensure that in each state exchange, at least one plan provides coverage of abortions beyond those for which Federal funds appropriated for the Department of Health and Human Services are permitted. The Secretary would also ensure that in each state exchange, at least one plan does not provide coverage of abortions beyond those for which Federal funds appropriated for the Department of Health and Human Services are permitted.

No Discrimination on the Basis of Provision of Abortion

Current Law

Federal conscience clause laws prohibit recipients of certain Federal funds from discriminating against certain medical personnel and health care entities for engaging in or refusing to engage in specified activities related to abortion.

Chairmanâs Mark

Health benefits plans participating in state exchanges would be prohibited from discriminating against any individual health care provider or health care facility because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.

     And here is Senator Hatch's amendment, which is contained at pages 205-206 of this 348-page listing of all of the amendments that have been offered to the Baucus bill:

Hatch Amendment #C14 to Americaâs Healthy Future Act of 2009

Short Title: Prohibits authorized or appropriated federal funds under this Mark from being used for elective abortions and plans that cover such abortions.


No funds authorized or appropriated under this Mark may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act of rape or incest.

Nothing in this amendment would preclude an insurance issuer from offering a separate, supplemental policy to cover additional abortions. Such a supplemental policy would be funded solely by supplemental premiums paid for by individuals choosing to purchase the policy.


All other major federal health programs preclude federal funds from being used to support abortion or any benefits package that includes abortion, beyond the limited circumstances of life endangerment and rape/incest. In some programs such as SCHIP (State Childrenâs Health Insurance Program) this is written into permanent law; in others, such as Medicaid, Medicare and FEHBP (Federal Employees Health Benefits Program) longstanding appropriations riders, the Hyde amendment and parallel provisions, have long prevented federal funds from paying for abortions or from supporting any of the costs of a health plan that includes them. In FEHBP, because federal funds are used to supplement private premium dollars, all the health plans offered to federal employees must completely exclude abortion except for these very limited circumstances. This amendment would respect the same policy in the health care reform legislation, while allowing truly private insurance coverage for elective abortions to continue as long as this is done through a supplemental policy, chosen and funded by the purchaser and kept completely separate from the federally subsidized package of benefits. In this way longstanding federal policy on abortion funding will be preserved, anyone who wants abortion coverage may purchase it, and people will not be forced to pay for other peopleâs abortions.

     I will try again tomorrow to summarize the cost structure for health insurance under the Baucus bill.


P.O.L. October 1, 2009 at 7:19 pm

You state that "people who are morally opposed to abortions should not have to pay for them." So, moral opposition to how the money is spent is sufficient to justify not requiring people to participate in part of a health-care system? Why is that a valid objection when, based on your earlier posts, you don't seem believe that moral opposition to the way the money is taken is a valid argument against participation. I think you would have to agree that enforcement of the tax scheme that would support the plans you dicussed, like all government actions, boils down to action that if done by anyone other than a government actor would be charactized as theft, extortion, kidnapping, slavery, etc. I have a firm moral conviction that undertaking any of those actions is immoral if done for any purpose other than what is necessary to prevent comparable harms from being inflicted on me by others. Why are my moral objections not sufficient for me to opt out?

Kristina M. October 8, 2009 at 11:59 am

It is a little ironic to think that the health care bill rides on who has the greatest moral authority over my uterus.

I have a uterus – I can ruin health bills with a single organ! Woo!

Leo November 13, 2009 at 9:14 am

The issue is not whether you have a uterus, or what you do to "your" uterus. The issue is not even whether you can terminate a fetus in your uterus, or a dependent baby, nurtured and raised in your uterus, your house or your home. The issue is whether the government has the legal or moral right or authority to compel anyone or everyone to pay for your choice, to terminate the unborn baby in your uterus. Please!

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