Mandatory Abortion Coverage?
Watching for the next step from the Obama administration.

‘Ella,’ a close analogue to the abortion pill RU-486


The fact is, neither PPACA nor the president’s order erects any barrier whatever to health-insurance plans’ including abortion coverage — in fact, for the first time ever in federal law, they declare that plans covering abortion can even receive federal funds. (Section 1303 of the federal law provides for a bookkeeping scheme that attributes any abortion expenditures to the premium dollars paid by purchasers rather than to the matching federal dollars — a distinction without a difference, since all enrollees in these plans will be directly forced by the government to pay for abortions.) PPACA provides that just one “multi-state” plan, to be offered across state lines, will exclude elective abortions (Sec. 1334 (a)(6)), and it lets all other plans choose their abortion policy one way or the other.  But the act explicitly allows each state to take away that latitude, by stating that nothing in the federal law “shall be construed to preempt or otherwise have any effect on State laws regarding the prohibition of (or requirement of) coverage” for abortions (Sec. 1303 (c)(1)).

So the new Washington State proposal, while leaving alone the federally supervised “multi-state” plan, is intended to ensure that the half of the population that identifies as pro-life will find not one other health plan in the entire state insurance exchange to purchase in good conscience. And the federal PPACA was drafted in advance to let a state do just that.

Ah, but the new state law has a “conscience clause” added in committee, say supporters. Actually, that clause is more of a disclaimer: “It is the intent of the legislature that nothing in this act affect the right of objection based on conscience or religion as set out in” two preexisting state laws. But in those laws one finds a contradiction: On the one hand, no provider or health-insurance carrier may be forced to participate in a service that it objects to because of conscience or religion; on the other hand, any provider that objects must make sure each enrollee can access such services “in an expeditious manner” (in other words, the provider must do abortion referrals), and no enrollee may be denied coverage or “timely access” to such a service even if her employer has a conscience objection. Disputes arising from this contradiction are to be settled by the dictates of the state insurance commissioner.

But if the entire intent of the new state law is to maintain this “timely access” in an “expeditious manner,” by ensuring that every plan but one covers abortion on demand, won’t any departure from the mandate compromise the timely access the law is required to ensure? So, in practice, the conscience clause seems to swallow itself.

Further, there is a direct conflict between the Washington State law and another existing federal law — a law that President Obama has repeatedly endorsed and pledged himself to enforce.

That law is the Hyde/Weldon amendment, approved by Congress every year since 2004 as part of the Labor/Health and Human Services/Education appropriations bill. Most recently, President Obama signed it into law in December 2011 as part of the Consolidated Appropriations Act of 2012. It reads, “None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” (Emphasis added.) The phrase “health care entity” is defined to include “an individual physician or other health-care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” A state receiving federal funds may not enforce a mandate for abortion coverage on any health plan, secular or religious — and it may not require any provider to refer for abortions in order to ensure “timely access.”

The Washington State law obviously would discriminate against — in fact, it would make illegal — some plans that decline to provide abortion coverage, and under Hyde/Weldon, that will render the state ineligible for all federal funds for labor, education, health, and human services in that year.

President Obama and his administration have repeatedly insisted that they strongly support Hyde/Weldon and will fully enforce it. The administration even reiterated this pledge in response to criticisms of the new HHS contraceptive mandate.

So we are about to witness a landmark event. Will the Obama administration make good on its oft-repeated pledge to enforce federal conscience laws on abortion? Will it warn Washington State to hold off on HB 2330, or lose much of its federal funding? If not, we may have a better understanding of what the ultimate goal of the HHS mandate was all along.

Mr. Doerflinger is associate director of the Secretariat of Pro-Life Activities, U.S. Conference of Catholic Bishops.