Bench Memos

What Rules Us

Today’s oral arguments on the individual mandate at the Supreme Court may be the beginning of the end of Obamacare. But even if Obamacare survives the Commerce Clause challenge brought by 26 states, this fight is far from over.

That’s because if the Act is allowed to go into effect, new mandates finalized by Health and Human Services Secretary Kathleen Sebelius just a couple of weeks ago may well doom Obamacare in subsequent court challenges under the Free Exercise Clause of the First Amendment.

And as we explain below, the dirty little secret of this unconstitutional scheme is that Planned Parenthood, the nation’s largest abortion provider, will be one of the biggest beneficiaries of your private insurance dollars.

Presidential hopefuls would do well to take heed of the messaging opportunity. The little known mandate we highlight here is distinct from the so-called contraceptive rule that has dominated in the news. No, we write today about yet another HHS rule finalized under Obamacare — one that deals with plain old elective abortion; not the abortifacient drugs covered by the so-called contraceptive mandate, but rather the surgical and chemical kind of abortion legalized by Roe v. Wade

Finalized on March 12, 2012 (and set to go into effect with the 2014 exchanges), the new HHS rule implements Section 1303 of the “Patient Protection and Affordable Care Act.” The new rule imposes mandates on every single enrollee in a qualified health plan that happens to include abortion coverage. In particular, federal law will soon mandate that every single individual enrolled in such a plan make payments to a private fund designated solely to the payment of abortion. This scheme allows Obamacare to get around the controversial issue of government-funded abortions with a new funding source: mandatory private payments by you, the insured.

Here’s how it works. The new rule authorizes issuers to offer abortion coverage as part of their plans in the government-subsidized exchanges. For issuers that voluntarily include abortion coverage as part of their health plans, the new HHS rule mandates the private insurer to compel all enrollees to directly pay a separate abortion premium “without regard to the enrollee’s age, sex or family status.” Not surprisingly, the abortion premium also must be paid without regard to whether the individual has a religious or moral objection to funding other people’s abortions.

The new rule specifies that the abortion premium must be separately itemized on each enrollee’s bill or payroll deduction. The Obama administration’s new rule then directs the issuer to place the abortion premiums into “allocation accounts” to be used “exclusively” to pay for other people’s elective abortion. It’s astounding. It’s also a violation of religious liberty for the reasons set forth in the friend-of-the-court brief that we recently filed to aid the Supreme Court in its review of Obamacare’s individual mandate. 


So, if you want to avoid abortion premiums, you can simply pick an abortion-free plan, right? Well, the new HHS rule seems deliberately designed to foil that option. With an audacious snub of the concept of consumer transparency, the HHS rule expressly instructs the issuer to hide the abortion coverage and the mandated separate abortion-premium payment from any advertising or information listings in the state exchanges.


According to the rule:  “A [qualified health plan] that provides for coverage of [elective abortion] must provide a notice to enrollees, only . . . at the time of enrollment.” It goes on to provide that the issuer’s advertising in the exchange must provide information “only with respect to the total amount of the combined payments” (without the need to put consumers on notice by breaking out the abortion amount to be billed separately). Thus consumers picking plans will likely have no idea about which ones come with the abortion premium mandate.


Who will end up in these plans? First, many people will accidentally walk into the rule’s trap and buy a policy under which the federal government will force them to make monthly abortion-premium payments — something they would not do if the government mandated transparency (or at least permitted transparency!) about the abortion-premium mandates. Second, many people will end up in these plans if it is the plan chosen by their employers. Third, many people may be forced to select these plans if available alternatives do not have the coverage or doctor networks their families need.


One way or another, millions of Americans will soon find themselves in plans that require these separate abortion payments as a matter of federal law. How much will they pay? The rule mandates that the abortion payment cannot be “less than one dollar per enrollee, per month.” 


And therein lies that little secret. Do the math, and think about the implications. A minimum of $12 per year multiplied by millions of individual enrollees will generate a massive windfall into abortion “allocation accounts.” As specified by the new rule’s mandate, these funds are to be used by private insurers “exclusively” for reimbursement to abortion providers.  


Consider it Obama’s gift to Planned Parenthood, the nation’s largest abortion provider — and a stunning end run around successful state efforts to defund Planned Parenthood from Title X and Medicaid tax dollars. After all, who needs public dollars, when Obama’s multiple mandates on both contraceptives and abortion will fill Planned Parenthood’s coffers with private insurance dollars? And Obama’s gift will come straight from the pockets of millions of unsuspecting Americans who would never willingly pay into a slush fund to abort human beings.


The Obama administration already has its hands full defending itself against religious-liberty lawsuits across the country arising from the HHS mandate on employer plans. But the lawsuits are set to explode exponentially once millions of Americans are forced to pay the elective abortion-premium mandate in 2014. Welcome to the beginning of a new end.

— Dorinda C. Bordlee and Nikolas T. Nikas are attorneys and co-founders of Bioethics Defense Fund, a national pro-life legal and educational organization. Mark Rienzi is senior counsel with The Becket Fund for Religious Liberty, and a professor of law at the Catholic University of America.


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