Obama Administration Applies Stupak Amendment to High Risk Pools

Jessica Arons

This week the Obama Administration placed a total ban on abortion coverage in Pre-Existing Condition Insurance Plans even though nothing in the law requires such action.

This week, a commotion arose over the question of whether Pre-existing Condition Insurance Plans, also known as high risk pools, can include abortion coverage.  The Obama Administration responded immediately by imposing a total ban on abortion coverage in the pools that echoes the Stupak Amendment, even though nothing in the law requires such action.

PCIPs are temporary health insurance pools that states or the federal government must establish or expand in every state to cover people who do not currently qualify for individual health insurance because of a preexisting condition.  PCIP coverage will expire in 2014 when enrollees become eligible for the new health insurance exchanges that will become operational that year.  PCIPs will be funded with a combination of federal, state, and private money.

Women entering these plans are, by definition, those who have experienced serious medical conditions—so serious that insurers are unwilling to sell them insurance.  In other words, those who get pregnant are already at a heightened risk for needing an abortion for health reasons when compared to the general population.

Pennsylvania–apparently unintentionally–walked into the abortion debate by approving a program that potentially covered abortion.  The plan said no “elective” abortions would be covered, but referenced a statute that does not define the term “elective” and allows an abortion if it is deemed “necessary” by a physician based on “all factors (physical, emotional, psychological, familial and the woman’s age) relevant to the well-being of the woman.”  The only situation deemed categorically unnecessary by the statute is sex selection.

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Rep. John Beohner and the National Right to Life Committee raised a stink, and the very next day, HHS Spokeswoman Jenny Backus had this to say:

As is the case with FEHB plans currently, and with the Affordable Care Act and the President’s related Executive Order more generally, in Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) except in the cases of rape or incest, or where the life of the woman would be endangered.

Our policy is the same for both state and federally run PCIP programs. We will reiterate this policy in guidance to those running the Pre-Existing Condition Insurance Plan at both the state and federal levels. The contracts to operate the Pre-existing Condition Insurance Plan include a requirement to follow all federal laws and guidance.

But here’s the catch, nothing in federal law actually restricts the use of federal or state money for abortion in PCIPs.

The language that was inserted by Sen. Ben Nelson into the Patient Protection and Affordable Care Act that prohibits federal money from being spent on abortion in circumstances beyond the Hyde Amendment exceptions of life, rape, and incest clearly applies only to plans operating in insurance exchanges.

Sec. 1303 of the PPACA says a state may elect to prohibit or allow “abortion coverage in qualified health plans offered through an Exchange” and that, subject to whether a state has made such an election, “the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion] services.”  If a qualified plan decides to offer coverage of abortion beyond the Hyde exceptions, it must collect separate premiums from each enrollee to pay for abortion coverage and all other coverage, and it may not pay for abortions with federal tax credits or cost-sharing reductions that were allocated under the PPACA for the purpose of subsidizing premiums for plans offered in the exchanges.  There are no other restrictions on abortion funding contained in the PPACA.

In an eleventh-hour political compromise to obtain health reform votes from antiabortion Democrats, President Obama agreed to sign an executive order that reiterated the funding restrictions in health insurance exchanges and also, in direct response to last-minute concerns raised by abortion opponents, applied funding restrictions to community health centers.

The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly created health insurance exchanges… I hereby direct the Director of the OMB and the Secretary of HHS to develop, within 180 days of the date of this order, a model set of segregation guidelines for State health insurance commissioners to use when determining whether exchange plans are complying with the Act’s segregation requirements, established in section 1303 of the Act, for enrollees receiving Federal financial assistance….

The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program. Existing law prohibits these centers from using Federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language…. I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law.

A common method of legal interpretation posits that when items in a legal document are specifically listed, they exclude any items that are not mentioned unless there is a catch-all statement that says unenumerated items are not excluded.  Case in point: the Ninth Amendment says of the Bill of Rights, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”  That means the Constitution can be interpreted to contain rights that are not explicitly designated.

The Executive Order, on the other hand, contains no such statement indicating that it might cover more than the addressed items, namely the exchanges and the CHCs.  In fact, when the Executive Order was signed, it was widely seen as simply reiterating what was already in the PPACA and current law.  Indeed, abortion opponents repeatedly lambasted it as a “worthless piece of paper.”  And a colloquy between reporters and Obama spokesperson Robert Gibbs after the Order was signed confirmed that it did not otherwise expand the scope of current funding restrictions:

MR. GIBBS: Well, I would say the President believed that the law — the President has always believed that health care reform should be about that, not about other issues. The President did not, in health care reform, believe we did change the status quo and believes that this reiterates that it’s not changed….

Q I read the executive order, and it says that’s a reiteration of what already exists.

MR. GIBBS: Well, there you go.

Q So it’s not necessary?

Q Not legally necessary?

MR. GIBBS: We reiterated —

Q Might have been necessary for other reasons, but it’s not legally necessary.

MR. GIBBS: No, we reiterated the status quo, and we’re comfortable reiterating that status quo.

Q — comfortable for a legal purpose?

MR. GIBBS: We’re comfortable reiterating that status quo.

Q Doesn’t it diminish the whole purpose of a presidential — of an executive order if all he’s doing is reiterating what’s already in the law? Why would he do that?

MR. GIBBS: No. No. We don’t see that as diminishing.

While the status quo, at the time of the PPACA’s passage, restricted abortion funding in numerous areas, it did not restrict it in all areas.  There is not one, over-arching law that restricts abortion funding for all sources of federal funds.  Rather, abortion opponents have had to fight to obtain funding restrictions for each separate source. Moreover, those restrictions are not permanent; they must be re-approved each year through the annual appropriations process and their contours have changed over time.  In fact, should the scope of the Hyde Amendment’s restrictions on Medicaid funding change in the future, it will trigger similar changes in the health insurance exchanges and elsewhere.

It is understandable that the Administration might now feel the need to honor the “spirit” of the compromise that resulted in the Executive Order.  But the whole point of the compromise was to preserve the status quo, which included both restricted and unrestricted spheres of abortion funding.  Moreover, the terms of the agreement were carefully negotiated.  Abortion opponents who participated in the bargaining did not raise concerns about high risk pools or other specific potential sources of federal funding, and they should be able to live with the deal they made.

The worst of it is that the Administration could have at the very least set up something akin to the Hyde Amendment and the PPACA by giving states the option of using state or private money to cover abortion care costs.  Instead, the Administration cited the Federal Employees Health Benefits Plan specifically as the controlling precedent for the PCIPs.  Again, the Backus statement:

As is the case with FEHB plans currently, and with the Affordable Care Act and the President’s related Executive Order more generally, in Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) except in the cases of rape or incest, or where the life of the woman would be endangered.

Our policy is the same for both state and federally-run PCIP programs. We will reiterate this policy in guidance to those running the Pre-existing Condition Insurance Plan at both the state and federal levels. The contracts to operate the Pre-existing Condition Insurance Plan include a requirement to follow all federal laws and guidance.

The FEHBP, like the Stupak Amendment, imposes a total ban on non-Hyde abortion care, meaning that non-federal money cannot be used to supplement premiums in order to purchase a plan that includes abortion coverage.  Thus, without even any political or legislative benefit to receive in exchange, the Obama Administration has imposed a more restrictive abortion funding rule on PCIPs than is required for health insurance exchanges or Medicaid.

One would expect a Bush-style administration to “assume” that Hyde applies to the high risk pools or to interpret the Executive Order broadly to cover more than the exchanges and CHCs.  But it is extremely disappointing to see an ostensibly pro-choice administration go out of its way to appease those who have always opposed health reform and who will continue to make political targets of those who voted for reform regardless of what the Administration does on abortion.  It is never ok to trade women’s rights for political reasons, but in this case the calculus seems to be particularly bankrupt.

News Politics

Anti-Choice Crusade Tests ACOG’s Donations to Blackburn

Christine Grimaldi

Republicans' prevailing views on abortion haven’t stopped the American Congress of Obstetricians and Gynecologists from contributing to their campaigns for U.S. Congress.

Rep. Marsha Blackburn (R-TN), the leader of the congressional crusade to undermine access to abortion care and halt fetal tissue research, received campaign funds from an unlikely donor: the political advocacy arm of the nation’s leading professional association for obstetricians and gynecologists.

Publicly available campaign finance records obtained through the Federal Election Commission reveal that the American Congress of Obstetricians and Gynecologists (ACOG) donated $2,000 to Blackburn early in the two-year 2016 federal election cycle. ACOG made the contribution through its political action committee (PAC), Ob-GynPAC, on June 30, 2015—several months before the U.S. House of Representatives voted in October to establish the so-called Select Investigative Panel on Infant Lives.

ACOG is the 501(c)(6) affiliate of the American College of Obstetricians and Gynecologists, the membership association for 57,000 such providers across the country.

ACOG supports access to abortion care based on public health and medical evidence. Any contribution to Blackburn may, at first, appear misplaced. Blackburn, a longtime abortion rights foe, has emerged in recent months as the House’s most outspoken critic of an illicit market in “baby body parts” that according to all other accounts—three prior congressional committees, 13 states, and a Texas grand jury—doesn’t exist.

An ACOG spokesperson, however, stressed that Ob-GynPAC is broader than any one issue.

“The PAC often supports candidates and elected officials whom they disagree with on one issue or another because they work with the PAC on another priority,” the spokesperson told Rewire in an email.

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ACOG priorities overlap with some traditionally in the GOP camp: medical liability and Medicare payment reform, health information technology, and Affordable Care Act’s Independent Payment Advisory Board, a yet-to-be-constituted oversight panel to control Medicare costs. Medical groups generally oppose the advisory board, while anti-choice advocates have framed it as a “death panel.”

“Ob-GynPAC’s goal is to achieve real solutions to the issues facing ACOG members, which happens through bipartisan cooperation,” the spokesperson said.

The vast majority of congressional Republicans outright reject public health and medical evidence on abortion and oppose abortion rights, with the measured exception of retiring Rep. Richard Hanna (R-NY), who voted in 2015 against defunding Planned Parenthood even as he supports restrictions such as the Hyde Amendment. Hanna received $5,000 from ACOG in the 2016 federal election cycle.

Republicans’ prevailing views on abortion haven’t stopped ACOG from contributing to their campaigns for the House and U.S. Senate.

ACOG split $390,500 almost evenly between Republican and Democratic candidates in the 2016 cycle, according to data from the Center for Responsive Politics. Notable exceptions include Rep. Trent Franks (R-AL), the author of misleading legislation to ban sex- and race-selective abortion care, and Rep. Chris Smith (R-NJ), perhaps the most abortion-obsessed lawmaker in Congress. Franks and Smith have not received any money since ACOG became operational in 2010, according to Center for Responsive Politics’ data.

The $2,000 contribution to Blackburn marks a retrenchment, as ACOG first gave a $3,500 campaign contribution in the 2012 election cycle. Blackburn received another $4,000 from ACOG in the 2014 cycle.

Some of Blackburn’s top campaign contributors are from the medical field. The American Medical Association, the American College of Emergency Physicians, and the American College of Radiology each gave Blackburn $10,000 in the 2016 federal election cycle, according to Center for Responsive Politics data.

Across the aisle, ACOG donated $7,500 each in the 2016 cycle to Reps. Jan Schakowsky (D-IL) and Diana DeGette (D-CO), two of Blackburn’s adversaries on the select panel. Campaign finance records show that Schakowsky, the panel’s top Democrat, received the last $2,500 of that contribution from ACOG on March 31 of this year—several weeks after Republicans drew comparisons between fetal tissue research and Nazi experimentation at the panel’s first hearing.

ACOG defended both abortion care and fetal tissue research in a March 1 letter to Blackburn and Schakowsky and later that month, reiterated support for “life-saving research” in a statement and joint letter with others from the medical, scientific, and academic communities.

Neither the panel, nor the investigation, have ACOG’s support, the group’s spokesperson told Rewire.

In July, 30 progressive and reproductive health-care groups signed a letter in a bid for House Speaker Paul Ryan (R-WI) to disband the panel.

Commentary Abortion

Latinx Must Use Votes to Fight Hyde Amendment

Cristina Aguilar, Jessica González-Rojas, Laura Jimenez & Maria Teresa Kumar

More than 27 million Latinx are now eligible to vote, and that number can help determine who takes office and what abortion policies they enact.

The first woman known to die of an unsafe illegal abortion after the Hyde Amendment was a Latina. A struggling 27-year-old college student with a young daughter, Rosie Jimenez died from septic shock in October 1977—with a scholarship check earmarked for school in her purse. Jimenez had been refused coverage because, just months before, Congress had enacted the Hyde Amendment banning use of federal Medicaid funds for abortion except in cases of rape, incest, or life endangerment.

As we enter this Latina Week of Action for Reproductive Justice (today through August 7), the Hyde Amendment continues to deny pregnant people the chance to make the best decision for themselves and their families. And because our communities are hard-hit by abortion restrictions, Latinx must play a role in our electoral process to repeal Hyde and replace other anti-abortion measures with policies that truly support all families.

A 2011 study found that more than 70 percent of Latino registered voters believe that we should not judge someone who feels they’re not ready to be a parent. Unfortunately, this sentiment is not echoed by many legislators in Congress and throughout the country, who too often design policies precisely to put abortion care out of reach.

While the recent Whole Woman’s Health v. Hellerstedt Supreme Court struck down medically unnecessary restrictions in Texas, abortion access remains a challenge for many Latinx across the country. The Hyde Amendment has a disproportionate impact on low-income people of color who already face numerous health-care disparities and often do not have the money to compensate for insurance gaps.

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Withholding Medicaid coverage for abortion has an especially devastating effect in our communities, where enrollment is high; in 2012, 29 percent of Latinx adults and children nationwide received benefits from the program, and in some states such as Texas, more than half of Medicaid participants were Latinx.

Whether it’s public or private, health insurance must cover the services we need. When it doesn’t, the scramble to pay for an abortion has the potential to push families further into poverty. Already, too many of us are just scraping by while living with the stresses of a broken immigration system that divides families, structural racism, and lack of educational and employment opportunities.

Our communities need laws to ensure that health plans provide abortion coverage—not the Hyde Amendment nor legislation that claims to protect women while closing clinics or shaming those who provide and seek abortions.

Abortion is health care. And the ability to obtain health care should not be predicated on what type of insurance benefits you have, how much money you make, or whether you live in a state that allows public funds to pay for abortions.

It is time that we push back. Together, we can harness our power to advance positive policies that will make a difference. Latinx comprise a critical voting bloc that can significantly influence electoral outcomes; according to the Pew Research Center, an unprecedented number—27.3 million—of Latinx will be eligible to vote in the upcoming election.

But this only matters if we show up at the ballot boxes. We need to hold our elected officials accountable when they don’t consider the needs of our families. By lifting our collective voices and our votes, we can sway who holds office and makes policies.

This election, the health, rights, and dignity of our families are at stake. We cannot afford to sit out voting. It is an opportunity to make sure that those who are charged with representing us stand with our families. We owe it to Rosie Jimenez and the daughter she left behind. We owe it to ourselves.

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