Abortion Remains Contentious Under Obamacare

Arizona became the 25th state to ban most abortion coverage on health care exchanges this week, and other states likely are to follow suit.

Obamacare supporters celebrating after the Supreme Court ruling on the Affordable Healthcare Act in June 2012 in front of the U.S. Supreme Court.
National Journal
Caitlin Owens
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Caitlin Owens
April 1, 2015, 4 p.m.

Abor­tion re­mains one of Obama­care’s most con­ten­tious is­sues, more than five years after it threatened to keep the law from passing.

Ari­zona be­came the 25th state to ap­prove le­gis­la­tion that would re­quire in­sur­ance plans offered in health care ex­changes do not cov­er most abor­tions. And state le­gis­latures in Texas and West Vir­gin­ia, among oth­ers, are con­sid­er­ing bills this spring that would do the same or take re­lated ac­tion.

Al­though the Af­ford­able Care Act re­quires in­surers in ex­changes to se­greg­ate funds used to cov­er abor­tion—a pro­vi­sion ad­ded to the law at the last minute to en­sure fed­er­al funds are not used to cov­er the pro­ced­ures—it also al­lows states to com­pletely ban abor­tion cov­er­age from ex­changes.

In Texas alone, four bills have been in­tro­duced in the state le­gis­lature this ses­sion, all keep­ing abor­tion cov­er­age off the ex­change, ex­cept in cases where the wo­man’s life is en­dangered.

“There’s been tre­mend­ous activ­ity. A big part of that has been states that have en­acted their own lim­it­a­tions to mar­ket­place plan cov­er­age,” which is part of a na­tion­al trend to make cov­er­age for abor­tion lim­ited, said Alina Sal­gan­icoff, vice pres­id­ent and dir­ect­or of wo­men’s health policy at the Kais­er Fam­ily Found­a­tion.

“It’s def­in­itely hap­pen­ing and Texas is next on the list, for sure,” Sal­gan­icoff said.

But in one way, Ari­zona now oc­cu­pies a cat­egory all its own: It bans abor­tion cov­er­age from health in­sur­ance plans in ex­changes ex­cept in spe­cif­ic cases—in­cest, rape, or en­dan­ger­ment of the wo­man’s life—but not from Medi­caid. Ari­zona is un­der court or­der to provide state funds for abor­tion to wo­men covered through Medi­caid, al­though ob­tain­ing re­im­burse­ment for abor­tion from the state Medi­caid pro­gram is dif­fi­cult, ac­cord­ing to an Ibis Re­pro­duct­ive Health re­port.

“The Amer­ic­an people over­whelm­ingly op­pose tax­pay­er fund­ing of abor­tions, and it’s no dif­fer­ent in Ari­zona, where we have long-stand­ing policy against sub­sid­iz­ing them with pub­lic dol­lars,” Gov. Doug Ducey said in a state­ment. “This le­gis­la­tion provides clar­ity to state law.”

The Ari­zona law has sparked out­rage among abor­tion-rights groups and mem­bers of the state le­gis­lature.

“Gov. Ducey ve­toes bill to pre­vent cruelty to cows and chick­ens but signs one that is cruel to wo­men. #AZ­Back­wards,” Demo­crat­ic state Rep. Vic­tor­ia Steele tweeted.

“Deny­ing wo­men the op­por­tun­ity to use private funds for leg­al and safe abor­tion health care is an over­reach. Fur­ther, for­cing wo­men and teens to prove rape or in­cest with in­sur­ance com­pan­ies will only fur­ther trau­mat­ize vic­tims,” Jodi Lig­gett, Planned Par­ent­hood of Ari­zona’s pub­lic policy dir­ect­or, said in a state­ment.

Of the two dozen states ban­ning most abor­tion cov­er­age from plans on ex­changes pri­or to Ari­zona’s de­cision, 10 also have abor­tion cov­er­age lim­it­a­tions on private in­sur­ance plans out­side of ex­changes, and all 24 pro­hib­it most abor­tion cov­er­age un­der Medi­caid, ac­cord­ing to Kais­er.

Cov­er­age de­cisions still are be­ing made across the coun­try, and sev­er­al states have in­tro­duced le­gis­la­tion this ses­sion that would sim­il­arly re­strict ac­cess to abor­tion for wo­men.

Two of the bills in­tro­duced in Texas would re­quire private in­surers to bill en­rollees sep­ar­ately for abor­tion cov­er­age, al­though no fed­er­al funds are used for private in­sur­ance.

West Vir­gin­ia has in­tro­duced a bill to pro­hib­it cov­er­age of most abor­tions on Mar­ket­place plans and, sim­il­ar to Texas, pre­vent oth­er health plans from provid­ing abor­tion cov­er­age ex­cept as sep­ar­ate and sup­ple­ment­al. Mis­sis­sippi in­tro­duced a bill, but it died in com­mit­tee. Montana’s le­gis­lature has in­tro­duced a bill that re­quires in­surers to of­fer a policy without abor­tion cov­er­age if they have a policy that in­cludes abor­tion cov­er­age. Michigan has in­tro­duced a bill that would re­quire in­surers to of­fer a rider for abor­tion cov­er­age.

Vir­gin­ia, break­ing with the dir­ec­tion of pro­posed le­gis­la­tion in oth­er states, in­tro­duced a bill to re­move its ban on most abor­tion cov­er­age in ex­changes, but it died in com­mit­tee.

Even be­fore the Af­ford­able Care Act, it was il­leg­al for fed­er­al money to be used to fund abor­tion un­der the Hyde Amend­ment, with ex­cep­tions for cases of rape, in­cest, or threat to the preg­nant wo­man’s life.

But abor­tion, along with im­mig­ra­tion, was one of the fi­nal hurdles to jump be­fore the pas­sage of the ACA. The fi­nal law in­cluded a com­prom­ise to get the sup­port of Demo­crat­ic Sen. Ben Nel­son of Neb­raska; states are al­lowed to ban abor­tion on their ex­changes, and plans that of­fer abor­tion cov­er­age must se­greg­ate funds to as­sure that no fed­er­al money is used for abor­tion cov­er­age.

Of states that don’t have a ban on abor­tion cov­er­age through ex­changes, sev­en mar­ket­places don’t have plans that in­clude it any­way.

“Not hav­ing abor­tion cov­er­age for wo­men can ef­fect­ively lim­it their ac­cess to abor­tion ser­vices, be­cause the cost is the primary is­sue,” Sal­gan­icoff said.

A clin­ic-based abor­tion at 10 weeks preg­nancy costs between $400 and $550. At 20 to 21 weeks, this jumps from between $1,100 to $1,650 or more. And among un­in­sured wo­men of re­pro­duct­ive age who are in­come eli­gible to re­ceive tax cred­its, 60 per­cent live in states that have banned or do not of­fer abor­tion cov­er­age in mar­ket­place plans, ac­cord­ing to Kais­er.

One reas­on states might not want to al­low abor­tion cov­er­age on ex­changes is be­cause, as a part of the com­prom­ise with Nel­son, se­greg­at­ing the funds for it adds an­oth­er ad­min­is­trat­ive lay­er of work, ac­cord­ing to Kais­er.

But some in­sur­ance com­pan­ies might not fol­low this rule any­ways. Last year, a Gov­ern­ment Ac­count­ab­il­ity Of­fice re­port found that 17 of the 18 pro­viders sur­veyed did not bill en­rollees sep­ar­ately for non-ex­cep­ted abor­tion ser­vices, al­though it was un­clear wheth­er the pro­viders se­greg­ated the funds with­in their fin­an­cial sys­tems. They had, however, es­tim­ated a sep­ar­ate premi­um amount for abor­tion cov­er­age.

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