Abortion Coverage in the Senate Bill: How Does It Break Down?

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Abortion Coverage in the Senate Bill: How Does It Break Down?

Jodi Jacobson

A breakdown of the key provisions in the Senate bill as analyzed by Congressional Staff.

Last night, Senate Majority Leader Harry Reid released the Senate Health Reform bill on which debate is expected to begin shortly.

Here we outline how this bill treats the issue of abortion care, a
focal point the past few weeks of lobbying by anti-choice forces and of
much debate.While these provisions are now in the bill, it is likely that some Senators will seek to amend the bill to weaken these provisions.  Once the Senate bill passes, a conference committee will take both bills to rectify differences between the two.  For numerous reasons, the fact that the language below appears in the bill introduced yesterday by Senator Reid does not guarantee that such language will be the final outcome, so the process of getting to conference is a critical aspect of the next steps in this debate.

What does the Senate bill say?

The legislation does NOT include the more extreme and restrictive Stupak-Pitts language adopted by the House:

Sex. Abortion. Parenthood. Power.

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The Senate’s compromise approach closely mirrors the Capps language which was originally included in the House and Senate Finance Committee bills, with an additional provision stating that the HHS Secretary must ensure that no federal funds are used for abortion, if he/she determines that abortion should be a benefit in that plan.


Key Provisions:

1. Voluntary Choice of Coverage of Abortion Services:

Abortion cannot be a mandated benefit as part of a minimum benefits package.
A qualified health plan would determine whether it will cover:
a) no abortions
only those abortions allowed under Hyde (rape, incest and life endangerment)
or b) abortions beyond those allowed by Hyde.

2. No Federal Funds for Abortion Coverage in the Community Health Insurance Option:

If the Secretary chooses to cover abortion services in the public plan beyond those allowed by Hyde, he/she must:

  • Guarantee compliance with the provision prohibiting the use of Federal funds to pay for abortions (beyond those allowed by Hyde);
  • Guarantee that, according to three different accounting standards, no Federal funds will be used; and
  • Take all necessary steps to ensure that the United States does not bear the insurance risk for abortions that do not meet the Hyde exceptions in the public plan.

3. State Flexibility and the Community Health Insurance Option
States may require the coverage of additional benefits in the Community Health Insurance Option, but must assume costs associated with covering these benefits

A State may elect to require coverage of abortions beyond those allowed by Hyde only if no Federal funds are used for this coverage.
The U.S. Government may not bear the insurance risk for a State’s required coverage of abortions beyond those allowed by Hyde.

4. Hyde Amendment Exceptions and the Community Health Insurance Option:

Abortions currently permitted by Hyde shall be covered in the Community Health Insurance Option to the same extent as they are under Medicaid (only cases of rape, incest and life endangerment).

5. Consumer Choice Assured Among a Variety of Plans in the Exchanges

The Secretary would ensure that in each State Exchange, at least one plan provides coverage of abortions beyond those permitted by Hyde and at least one plan does not provide coverage of abortions beyond those permitted by Hyde.

6. Strict Prohibition on the Use of Federal Funds to Pay for Abortion Services

No tax credit or cost-sharing credits may be used to pay for abortions beyond those permitted by the Hyde Amendment (only cases of rape, incest and life endangerment).

7. Segregation of Funds

Issuers of health insurance plans that offer coverage for abortion beyond those permitted by the Hyde amendment must segregate from any premium and cost-sharing credits an amount of each enrollee’s private premium dollars that is determined by the Secretary to be sufficient to cover the provision of those services.

8. Actuarial Value of Optional Service Coverage

The HHS 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 Hyde Amendment.
In making such estimates, 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.

9. Provider Conscience Protections

No individual health care provider or health care facility may be discriminated against because of a willingness or an unwillingness, if doing so is contrary to the religious or moral beliefs of the provider or facility, to provide, pay for, provide coverage of, or refer for abortions.

10. Application of State and Federal Laws

No pre-emption or interference with State laws. State laws regarding the prohibition of 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.