The ‘Separate Checks’ Dodge

by Ramesh Ponnuru

My post yesterday about Obamacare’s abortion subsidies and Slate’s coverage thereof drew this e-mail:

Sorry, Ramesh, but you’re not a lawyer and it shows. The fact is that the Affordable Care Act does NOT subsidize abortion. It requires plans that cover abortion to charge a separate fee for the abortion coverage, so the federal premium subsidy covers the rest of the plan. Your post was misleading, and so was the Susan B. Anthony ad, even if Lithwick is going overboard to call it a lie.

The main point of my post was to establish that the “federal law” that prohibits federal funding for abortion does not actually exist, and therefore cannot be a reason for people to rest assured that the federal government is not subsidizing abortion. Your claim is different from the one I sought to refute: It’s that the Obamacare law itself does not subsidize abortion because of its separate-check requirement. I quoted the portion of Lithwick’s article that made the same claim, but you’re right that I did not address it.

There are two reasons I think that while you may be the lawyeriest lawyer around, you’re wrong about this. In the first place, I’m not sure what the separate checks called for in the law accomplish: Subsidies still go to and facilitate the purchase of insurance plans that cover abortion. On this point, at least, Cecile Richards, the head of Planned Parenthood, was right: The separate-checks requirement is an “absurdity” that “doesn’t accomplish anything.” The Center for Reproductive Rights called it a “gimmick, rather than a true funding firewall.”

Second, the Obama administration appears to be ignoring the statutory requirement of separate checks. (I know you’re shocked to hear it might not be following the Obamacare law to the letter.) Apparently you can throw away the fig leaf and much of the press will still pretend it’s there.

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