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ObamaCare: Advancing the Abortion Industry

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On a Friday night in December 2009, Senate Majority Leader Reid was engaged in intense negotiations with then-Senator Ben Nelson of Nebraska. Reid was in need of Nelson’s vote to secure Senate passage of the Patient Protection and Affordable Care Act, colloquially known as Obamacare. Nelson ultimately reached a breakthrough that led to a deal, as reported by Politico a few days later. According to Politico, one aspect of the agreement was that individuals who received federal subsidies would be required to submit two separate payments in order to ensure that none of the federal funds were allocated towards the purchase of abortion coverage. Six days later, Senator Nelson took to the Senate floor to provide a detailed explanation of the terms of the agreement he had negotiated.

With respect to the two-check requirement, Senator Nelson stated: “In the Senate bill, if one is receiving federal assistance to purchase insurance and that insurance plan includes abortion coverage, the insurance company must bill the individual separately and the individual must pay the abortion coverage from their own personal funds. This may be done through a credit card transaction, a separate personal check, or an automatic withdrawal from the individual’s bank account. It is important to note that the individual must write two checks: one for the basic policy and one for the additional coverage for abortion.” “The latter must be entirely from personal funds.” [155 Cong. Rec. S14134 (Dec. 24, 2009)].

At the time, the Washington Post quoted Cecile Richards, president of the Planned Parenthood Federation of America, as saying, “The absurdity of requiring these two separate checks does not achieve the goal of segregating federal funds. It merely creates additional hoops for insurance companies and more administrative burdens and obstacles for women to obtain the coverage they need.” Similarly, a NARAL fact sheet criticized the Nelson language. “The requirement for individuals to write two checks in order to purchase coverage that includes a benefit—abortion services—is a new, unnecessary hassle. These burdens could severely limit women’s ability to obtain abortion coverage within the exchange.” (Note: An exchange is a marketplace for the purchase of health insurance. ObamaCare requires an exchange to be established in every state by 2014.)

The Patient Protection and Affordable Care Act (PPACA), commonly known as Obamacare, requires the issuers of Exchange plans that cover abortion to “collect from each enrollee in the plan” a “separate payment” for the type of abortions for which funding is prohibited under the Hyde Amendment (which is all abortions other than in cases of life of the mother, rape, or incest) and a separate payment for all other services. [42 U.S.C. 18023(b)]. Subsequently, the aforementioned payments are to be deposited into distinct accounts.

During the regulatory process, commenters posed questions to HHS regarding the implementation of this policy. According to HHS, the commenters recommended that HHS clarify two key points: whether Exchange plan issuers may satisfy the separate payment provision by providing each enrollee with an itemized bill, and whether an enrollee’s coverage would be terminated for failure to comply with the separate payment provision. Instead of providing a definitive answer, HHS merely stated that the comments would be taken into consideration in any future guidance. This was stated in the Federal Register on March 27, 2012 (77 Fed. Reg. 18430).

Despite the clear language of the Affordable Care Act (ACA), the Obama Administration has indicated that it will not enforce the separate check requirement. Gretchen Borchelt, director of state reproductive health policy at the National Women’s Law Center, has stated that the ACA will be implemented differently than previously anticipated. (Huffington Post, September 3, 2013).

Similarly, a representative of Rhode Island’s Exchange informed PolitiFact Rhode Island that “the customer is not billed a separate fee.” (Politifact, October 2, 2013. The Rhode Island Exchange will handle the billing, not the plan issuers). As PolitiFact notes, “it turns out to be a hidden fee.”

From the perspective of those who are pro-life, the most significant aspect of the Affordable Care Act is the provision of substantial federal premium subsidies to insurance plans that cover elective abortion. This represents a significant departure from the longstanding policy of the Hyde Amendment. Furthermore, the enrollee in each plan will have a portion of their premium placed into a separate account for elective abortions. This account is known as the “abortion surcharge.” This is but one example of the Obama administration’s implementation of the Affordable Care Act in a manner that advances the abortion industry.

In accordance with the regulations set forth by the Patient Protection and Affordable Care Act (PPACA), health insurance issuers in an Exchange are required to ensure “reasonable and timely access” to a “broad range” of Essential Community Providers for low-income individuals within the plan’s service area. Among these Essential Community Providers are clinics that receive Title X family planning funds, such as Planned Parenthood clinics. It is noteworthy that Planned Parenthood, the largest provider of abortions in the United States, is also the largest provider of family planning services. A search of the non-exhaustive list of Essential Community Providers maintained on an HHS website reveals that 589 Planned Parenthood clinics are included among the Essential Community Providers.

In October 2011, Planned Parenthood and other abortion advocacy groups wrote to HHS to express their concern that the final rulemaking should include language that clarifies that health plans, Exchanges, and states cannot exclude or discriminate against providers because they provide or refer for comprehensive women’s health services. These groups were concerned that a state might choose to direct women to health care providers that do not perform abortions. It is evident that the Obama Administration addressed this concern. When the Final Rule was issued, it included a new provision that explicitly states that a health plan issuer in an Exchange “may not be prohibited from contracting with any essential community provider.” (45 CFR 155.1050).

The Patient Protection and Affordable Care Act (PPACA), commonly known as Obamacare, contains a provision requiring that members of Congress and certain congressional staff purchase their health plans on the Exchanges, effective January 1, 2014. The Obama Administration is responsible for implementing this statutory language through the issuance of regulations. In doing so, the Administration has proposed allowing the government to purchase abortion-covering plans for members of Congress and their staffs, a practice that is prohibited for other federal employees.

The Smith Amendment has banned the Office of Personnel Management (OPM) from paying for any plan that includes elective abortion coverage for most of the past 30 years. OPM does not dispute that the Smith Amendment applies to the purchase of Exchange plans by Members of Congress and certain congressional staff. OPM says the Smith Amendment stops them from using federal funds to “administer” Exchange plans. This is wrong. The Smith Amendment says they can’t use federal funds to pay for “administrative expenses in connection with any health plan . . . which provides any benefits or coverage for abortions.” OPM will have to pay for the purchase of Exchange health plans that cover abortion. The President cannot change the laws after they have been passed.

Planned Parenthood affiliates are being enlisted in various capacities to assist consumers in selecting an Exchange health care plan and completing their applications. On August 15, the U.S. Department of Health and Human Services (HHS) announced that Planned Parenthood affiliates in Iowa, Montana, and New Hampshire will be funded as ObamaCare “Navigators.” Their combined funding will total over $655,000. On August 13, the Washington, D.C. health insurance Exchange awarded a $375,000 grant to Planned Parenthood of Metropolitan Washington, D.C. to serve as an In-Person Assister. It is unfortunate that some consumers may ultimately seek assistance from affiliates of America’s largest abortion provider in purchasing insurance to cover life-preserving treatments.

This is merely the beginning. The Obama Administration has three more years to implement the Patient Protection and Affordable Care Act, commonly referred to as “ObamaCare.”


Daniel Miller is responsible for nearly all of National Right to Life News' political writing.

With the election of Donald Trump to the U.S. presidency, Daniel Miller developed a deep obsession with U.S. politics that has never let go of the political scientist. Whether it's the election of Joe Biden, the midterm elections in Congress, the abortion rights debate in the Supreme Court or the mudslinging in the primaries - Daniel Miller is happy to stay up late for you.

Daniel was born and raised in New York. After living in China, working for a news agency and another stint at a major news network, he now lives in Arizona with his two daughters.

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