Affordable Care Act's anti-abortion rules need to be enforced

by Thomas Reese

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I wish this was the last column I had to write about the Affordable Care Act and abortion, but I doubt it will be. As you recall, when the ACA was debated in the House of Representatives, the U.S. bishops opposed it because they thought it would support insurance plans that paid for abortions. The bill's supporters denied this. 

On Sept. 15, the U.S. Government Accountability Office published a report, "Health Insurance Exchanges: Coverage of Non-excepted Abortion Services by Qualified Health Plans." The report details how in 28 states, 1,036 qualified plans cover abortion. This is 49 percent of the plans in the nation.

The GAO also found that many of these insurance companies were not following the law and were listing the cost of abortion coverage at less than $1 per enrollee, the minimum amount required by ACA. Nor were many insurance companies billing beneficiaries separately for abortion coverage, as required by the law.

The report said nothing about whether the issuers segregated portions of the premium into a separate account to pay for abortions, as required by law. Nor did the report directly address the question of whether federal funds are being used for abortion. This is a study GAO should do.

The response from the U.S. Conference of Catholic Bishops was swift and strong. On Sept. 16, a USCCB press release quoted Cardinal Sean O'Malley, chair of the bishops' Committee on Pro-Life Activities: The GAO report "confirms the U.S. bishops' longstanding concern about abortion coverage" in the Affordable Care Act.

The press release continues, but now the staff is speaking, not the cardinal:

Despite repeated claims by President Obama and other supporters that the ACA would not promote abortion, the report identified over a thousand health plans eligible for federal premium subsidies that cover elective abortions. On five state exchanges, every plan covers such abortions in 2014; in another three large states, 95 to 98 percent of the plans do so. The Act's alleged requirements regulating abortion coverage do not exist or are widely ignored. Many health plans do not inform enrollees about their inclusion of abortion coverage; they do not tell them how much they are being charged for such coverage; and they do not charge a "separate payment" for abortions that is distinct from the premium payment eligible for federal tax subsidies. While state insurance departments are supposedly tasked by the federal government with ensuring that these health plans maintain segregated accounts for abortion funds to keep them separate from federal funds, the report indicates that this is not taking place.

O'Malley concludes, "This report confirms the U.S. bishops' longstanding concern about abortion coverage that we raised both before and after enactment of the Affordable Care Act by Congress."

O'Malley is one of my favorite cardinals, so I am not eager to disagree with him in public. But I fear that the USCCB staff has led him astray. In fact, the GAO report proves exactly the opposite of what he says. It proves that the bishops' concerns about the ACA were unwarranted.

The GAO found no ambiguity in the ACA. The law is clear. What they found is that insurance companies and state insurance commissioners are not following the law. The fault is not in the ACA; the fault is in its implementation.

This distinction matters. The Republican Party continues to campaign against the ACA. Two years ago, most of the pro-life Democratic members of Congress up for re-election were defeated because they were branded as pro-abortion if they supported the ACA. NETWORK and the Catholic Health Association were condemned as supporters of abortion because they supported the ACA.

The USCCB should stop being part of the Republican Party propaganda machine in attacking the ACA. There is nothing wrong with the ACA with regards to abortion.

If the bishops want to condemn the insurance companies for not following the law, go ahead. If they want to condemn the state insurance commissioners for not following the law, go ahead. If they want to condemn the Department of Health and Human Services for not making sure that the insurance companies and insurance commissions follow the law, go ahead. But don't blame the ACA, which the GAO found clear enough to know when it was not being observed.

The Catholic Health Association is also concerned about the findings of the GAO report. In a Sept. 17 press release, the association notes that with 50 states, 50 different state insurance commissions, and over 2,000 plans, it is "a real challenge for monitoring, but it must be done. The ACA law requires it."

The CHA explains: "The ACA law explicitly forbids the use of federal funds for abortion except in the cases covered by the Hyde Amendment. This critical provision must be adhered to in every state, irrespective of how challenging it is to monitor."

But unlike the USCCB, CHA explains that "the reason often given for getting an abortion is the inability to afford health care for the mother, unborn infant and later the child. The ACA has already taken that challenge away for millions and has the possibility to do it for millions more if fully implemented. The lives of mothers, unborn babies and children in this country must have the protection of their health. No mother should ever feel she has to abort her unborn child because she cannot afford health care."

Like every law, the ACA can be improved, but it should not be attacked as promoting abortion, not when it does so much good and helps women have their babies.

Meanwhile, the Centers for Medicare & Medicaid Services (CMS) has promised to issue better guidelines and encourage insurance companies and state insurance commissions to comply with the law. CHA says it "will diligently monitor the efforts of CMS to assure that the law is implemented as written." The bishops should also keep on CMS until every insurance company and state insurance commission in the country is following the law, but they should stop attacking the ACA.

What the USCCB continues to ignore is the fact that it is state law that mandates abortion coverage, not federal law. States like New York and California have for years required insurance companies to cover birth control and abortion. The dirty little secret is that Catholic institutions and Catholic insurance companies have been quietly complying with these state laws at the same time that the bishops have been screaming about the ACA. No wonder their critics accuse them of partisanship. 

When the Affordable Care Act was being voted on in the House of Representatives, the bishops opposed passage because of their fears about abortion while NETWORK and CHA supported passage, saying there was not a problem. At that time, I wrote column wondering if the bishops were paranoid or the sisters were naive. The GAO report proves that the law is clear. The bishops were paranoid and the sisters were not naive.

[Jesuit Fr. Thomas Reese is a senior analyst for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church. His email address is Follow him on Twitter: @ThomasReeseSJ.]

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A version of this story appeared in the Oct 10-23, 2014 print issue under the headline: Anti-abortion rules need enforcement.

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