As both sides of the debate remember all too well, the final passage of Obamacare last year hinged on a many-layered debate on abortion funding in the final bill. The balance of power on the final vote in the House of Representatives rested with a small group of pro-life Democrats, led by former Representative Bart Stupak (D–MI), who abandoned their support for a comprehensive restriction on abortion funding. Instead, the “Stupak 7” settled for a presidential executive order that purported to fill the gaps in the legislation that allow various types of abortion subsidies—through tax credits, mandates on insurance companies and states, and direct payments.
The heart of the abandoned pro-life Stupak–Pitts amendment was its comprehensive application of the Hyde Amendment, an abortion funding limitation nearly 35 years old, to the entirety of Obamacare. Once the Stupak–Pitts amendment was abandoned by Stupak and his allies and the bill was signed into law, the problems with various sections of the bill became ever more apparent. In addition to providing massive tax subsidies for health insurance plans that cover elective abortions (using a novel accounting technique in an effort to assert that the abortion coverage in these plans is privately purchased), the law contains several provisions to which no abortion funding limits actually apply.
One of these provisions, governing state high-risk insurance pools, led to a fresh battle last summer when several states developed risk pools that allowed coverage of elective abortions. In response and under pressure, the U.S. Department of Health and Human Services (HHS) instructed the states to modify their risk pools and limit direct reimbursement of abortions. The instruction was necessary, because the appropriations for high-risk coverage under Obamacare contained no restriction whatsoever on abortion funding. Abortion advocacy groups reacted negatively to the HHS action, because they knew the law was on their side. The Obama Administration’s chief health policy expert offered her opinion that the modification should not be viewed “as a precedent” for future Administration behavior on the issue, because the program was unique and temporary.
Now the law’s treatment of abortion funding is again in the spotlight with the decision last week by HHS Secretary Kathleen Sebelius to impose mandatory, nationwide coverage of a new contraceptive/abortifacient drug called ellaOne—at no cost to the insured. The drug is included among an array of “preventive services” that every insurer and every employer, with a very narrow exception only for pervasively religious entities, must provide without co-pays or deductibles. The HHS interpretation underscores again the validity of concerns that Obamacare’s provisions leave many loopholes for direct payments and subsidies for abortions.
Ironically, last week also brought news of a federal district court decision in Ohio that will allow an unusual defamation lawsuit to proceed in a case involving these very issues. Former Representative Steve Driehaus (D–OH), one of the Stupak 7, is suing the Susan B. Anthony List because of a billboard and radio ad campaign it mounted against him in the 2010 election that contended he voted “for taxpayer-funded abortion.” Driehaus argues that this statement is false and that it injured his professional reputation as a Member of Congress.
Whatever Driehaus meant to do by voting for Obamacare, it is clear that abortion-subsidizing and even abortion-funding features permeate the law.
Federal District Judge Timothy Black concluded that in order to prove its statement regarding abortion funding was true, the Susan B. Anthony List would have to be able to point to a provision of Obamacare making specific appropriations for abortion. But that is a totally inapt standard. Funds for abortion have flowed many times from the U.S. Treasury under many different programs without such a provision ever existing. The reason for restrictions like the Hyde Amendment and the proposed-but-never-passed Stupak–Pitts Amendment has always been that abortion is interpreted by government agencies as just another “medically necessary” procedure unless it is specifically excluded by law (the very reason why there are nearly two dozen abortion funding “riders” on annual appropriations bills for federal agencies).
As the latest HHS regulations on “preventive services” in health insurance make clear, whether or not certain provisions of Obamacare exclude abortion and abortifacients is up to the discretion of the Administration. The law itself permits such coverage in many instances, and it makes funds available for it by a variety of ingenious pathways. The “preventive services” pathway is only the latest route down a very slippery slope.