Health reform seeks status quo on abortion

The new law and a related executive order offer no new access to abortions, but the statute might ease access to family planning services in Medicaid.

By Doug Trapp — Posted April 19, 2010

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Access to abortions isn't immediately expected to change under the health reform law and an accompanying presidential executive order, according to advocates on both sides of the issue. But the law has created new front lines in the decades-long legislative battle over the issue.

Both abortion opponents and those who support expanding access to it found something to dislike about the enactment of the Patient Protection and Affordable Care Act and an executive order that President Obama signed asserting that the statute does not change longstanding federal policy on paying for abortions.

The law will discourage health plans from offering abortion coverage in health insurance exchanges by requiring it to be offered separately, said Adam Sonfield, senior public policy associate at the Guttmacher Institute, a nonprofit that supports worldwide advances in reproductive health and tracks related policy.

Abortion opponents worried that the ban on federal funding of elective abortions was not backed up by the force of law, but only by presidential executive order. Putting it into law would prevent a future president from rescinding it, said Mary Harned, staff counsel for Americans United for Life. Reversing the executive order could, for example, allow federal funding for elective abortions at community health centers.

Maintaining the ban on federal funding of elective abortions was a key to securing enough votes for House adoption of health reform. Such a ban has been in place since 1976, when Congress adopted the so-called Hyde amendment. It prevents federal support for abortions except in cases of rape, incest or medical conditions that pose a danger to the woman's life.

The health reform law as adopted did not reaffirm the Hyde amendment. But Obama's executive order did, cementing the support of several anti-abortion Democrats for the health reform act, which passed narrowly in the House and Senate.

One of the members of that key bloc, Rep. Bart Stupak (D, Mich.) said on April 9 he would not seek a 10th House term. Some conservative Republicans took credit for forcing him out. Stupak said he had considered retiring before but could not do so until national health reform was adopted.

The Obama administration announced in March 2009 that it would rescind a physician conscience rule that had been issued by the Bush administration in December 2008. That rule allows the Dept. of Health and Human Services to withhold federal funds from recipients who coerce or discriminate against doctors who decline to perform abortions or related services.

The Obama administration has not formally rescinded the Bush rule, but Margie Shealy, vice president for communications for the Christian Medical & Dental Assns., said she expects the revised language to appear as part of federal regulations implementing national health reform.

ACOG, the specialty society representing obstetricians and gynecologists, opposes government interference between a doctor and patient in any legal medical treatment.

American Medical Association policy opposes requiring physicians to perform procedures that violate their moral principles.

Abortion coverage segregation

Millions of individuals earning between 133% and 400% of the federal poverty line will qualify for sliding-scale subsidies to help buy coverage in health insurance exchanges. The law requires the exchanges to be operational by 2014.

But insurers who want to sell plans with abortion services in the exchanges face an administrative hurdle. They must accept payment for the abortion coverage separately from other medical coverage to keep abortions from being federally subsidized through tax credits and cost-sharing.

Sonfield said this administrative barrier will lead health insurers to decide against offering abortion coverage in their exchanges. This move could lead private health plans outside the exchanges to consider dropping abortion coverage as insurers seek more standardized products.

Access to abortions also is limited because fewer physicians are providing them, Sonfield said.

In 2005, 87% of U.S. counties -- where 35% of women between ages 15 and 44 years live -- did not have a physician who performed abortions, according to an article by Guttmacher researchers in the March 2008 Perspectives on Sexual and Reproductive Health.

But the new law allows states more easily to expand Medicaid family planning coverage to people who earn too much to qualify for the program or who don't meet some of the other eligibility standards, according to Susan Berke Fogel, an attorney with the National Health Law Program, a national public interest law firm. States now can accomplish this with a Medicaid state plan amendment, a faster and more flexible process than the previously required waivers. Family planning services include testing for infertility and sexually transmitted diseases, providing counseling, and giving out contraceptives.

"There's a great opportunity for women enrolled in Medicaid to make good decisions for themselves about when and whether they want to become a parent," Fogel said. But Harned said this expansion will have the side effect of increasing taxpayer support for clinics that also provide abortions.

The health reform law has competing priorities on sex education. It provides $375 million over five years for a new evidence-based program to teach adolescents about both abstinence and contraception.

But the law also includes $250 million over five years in state grants to extend the life of a Bush administration abstinence-only sex education program.

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The White House clarification

A presidential executive order issued on March 24 restates a longstanding federal policy prohibiting federal funding of abortion except in cases of rape, incest or when the woman's life is in danger. The executive order:

  • Prevents federal subsidies under the national health system reform law from being used to help people buy health insurance with abortion coverage through health insurance exchanges.
  • Prevents federal community health center funding from being used to pay for abortions.
  • Orders the heads of the White House Office of Management and Budget and the Dept. of Health and Human Services to develop guidelines for determining if plans in the health insurance exchanges appropriately segregate abortion coverage from other health coverage.

Source: "Ensuring enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act," Federal Register, March 24 (link)

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