Obamacare and Abortion: The Facts

by William L. Saunders

Today, Americans United for Life held a telephone press conference to discuss a hot political topic: Did Obamacare mark a huge expansion of abortion? This is important, because many self-identified pro-life Democrats voted for Obamacare, and some of those are up for reelection in races where this question has taken center stage.

The answer is yes, Obamacare did mark a significant expansion of abortion. It violated one plank of the “Hyde Amendment principles” (Hyde itself does not apply, since Obamacare is funded outside of Health & Human Services appropriations): no federal funding of insurance plans that provide abortions. The state exchanges established under Obamacare will certainly include plans that cover abortion. These plans will receive federal subsidies, thus violating Hyde principles. The meaningless “restriction” in the law is that the subsidies go to the insurance provider, not the individual, and that the abortions are paid for from a pool established by mandatory monthly payments by insurees. And even this restriction lapses if Hyde itself is not renewed (it is subject to yearly renewal).

Beyond this, there are virtually no restrictions on abortion in Obamacare. Funding streams such as those through Community Health Centers were thus unaffected. And while that particular problem was addressed in Obama’s executive order, the order failed to address anything else.

For instance, one loophole left open by the EO involved the high-risk pools. In fact, HHS would have directly funded abortion thereunder but for the protests of pro-life advocates. But HHS’ initial decision came as no surprise. As both the Congressional Research Service and the pro-abortion Center for Reproductive Rights pointed out, there was no legal restriction against HHS approving such funding since neither the law itself nor the executive order forbade it.

Another loophole left unclosed by the EO is the meaning of “preventive care,” which must be covered by all private insurance plans under the new law. The government can define it to include abortion. If so, every insurance plan — not just those on the state exchanges — would have to cover it. This is a hole wide enough to drive the proverbial truck through.

Finally, one thing we know from court decisions in many circuits is that unless abortion is expressly prohibited, courts will read it into laws providing for health-care services.

In short, Obamacare marked a decisive pro-abortion shift. Representatives who voted for it should not be surprised if their constituents hold them accountable for doing so.

William L. Saunders is a senior vice-president at Americans United for Life.