Last week marked the tenth anniversary of President Obama’s signing of the Affordable Care Act (ACA). The memories of the important political battle over that bill are still fresh in many minds. During 2009 and 2010, pro-lifers provided some of the most vocal opposition to serious flaws of the ACA. In fact, pro-life concerns about the conscience rights of religious employers and taxpayer funding for abortion nearly succeeded in blocking the legislation.
Some pro-lifers believed that Scott Brown’s surprise win in a special U.S. Senate election in Massachusetts in 2010 would result in the legislation’s demise. But when Bart Stupak and several members of his coalition of pro-life Democrats in the House reversed themselves to support the legislation, it had enough votes to pass.
During the debate over the ACA, pro-lifers were especially concerned, for several reasons, that the legislation would increase taxpayer funding for abortion. It federally subsidized exchange health-insurance programs, many of which would cover elective abortions. It also heavily subsidized the expansion of state Medicaid programs, which in some states cover elective abortions. The legislation also created additional streams of federal taxpayer funding for Planned Parenthood, the nation’s top abortion provider. Finally, the ACA gave the Department of Health and Human Services (HHS) the ability to regulate employer-based health-insurance plans in ways that could violate employers’ conscience rights.
Today, ten years later, the results of the ACA demonstrate that those pro-life concerns were well-founded. The ACA incentivized states to create health-insurance exchanges in which individuals who do not qualify for Medicaid can purchase a federally subsidized insurance plan; concerns that this would result in federal subsidies for abortion turned out to be correct. An analysis conducted by the Charlotte Lozier Institute and the Family Research Council found that 24 states and the District of Columbia permit elective-abortion coverage in exchange plans, and an estimated 69 percent of those plans in fact cover elective abortions.
Last year, the Trump administration created a rule requiring exchange plans to bill for abortion coverage separately from health-care services, increasing transparency and helping to prevent taxpayer dollars from subsidizing abortion. However, Planned Parenthood and the ACLU have sued to block this rule, and it is likely that it will be reversed by a future Democratic administration.
Since the ACA was passed, 35 states have expanded their Medicaid programs. Sixteen of these states cover elective abortions for the Medicaid population. There is also evidence that when Medicaid programs are expanded, the covered population expands, thus increasing the number of taxpayer-funded abortions. The experience of Alaska is instructive on this point. After Alaska expanded its state Medicaid program in 2015, taxpayers funded about 100 more abortions on average each year. There is also evidence from both Minnesota and West Virginia that taxpayer-funded abortions increased after the expansion of their respective state Medicaid programs.
Pro-lifers also were concerned that the ACA would result in additional revenue going to Planned Parenthood, which receives reimbursements through state Medicaid programs. Even if these revenues do not fund abortion directly, money is fungible, and funds that go to Planned Parenthood indirectly subsidize abortion. In 2019, Planned Parenthood reported receiving a whopping $616.8 million in government revenues. Additionally, during the past ten years, taxpayer funding to Planned Parenthood has increased by more than 40 percent in real terms. In fact, taxpayer funding has surpassed health-center income to become Planned Parenthood’s largest source of revenue. The Affordable Care Act is not the only reason for this, but it certainly has played a role.
Finally, pro-lifers worried that the ACA could jeopardize the conscience rights of employers, and that turned out to be the case. In 2012, HHS Secretary Kathleen Sebelius required that employer-based health-insurance plans cover all 20 FDA-approved contraceptives. Craft store Hobby Lobby objected to this policy because four of those contraceptives could work as abortion-inducing drugs, and the owners are Christians who oppose abortion. They filed a lawsuit against the contraceptive mandate, based on the Religious Freedom Restoration Act and the free-exercise clause of the First Amendment, and they were joined in that lawsuitby several other religious employers. In 2014, the Supreme Court ruled in their favor in Burwell v. Hobby Lobby in a narrow 5-4 ruling, but ideological changes in the composition of the Supreme Court could jeopardize conscience rights in the future.
Since 2010, conservative efforts to repeal the ACA have not met with success, but pro-lifers have made progress in limiting taxpayer subsidies for abortion and strengthening conscience protections. Twenty-six states now prevent insurance plans sold on their health-care exchanges from covering elective abortion. Eighteen states limit the ability of abortion facilities to receive government funds. Some states have resisted Medicaid expansion, partly out of concerns that it would increase taxpayer funding for abortion. The Supreme Court’s ruling in Burwell v. Hobby Lobby provides some protection for the conscience rights of employers, at least in the short term. But it is clear that the ACA will continue to require pro-lifers to be vigilant about protecting both taxpayers and conscience rights for years to come.