WASHINGTON — Does the Affordable Care Act (ACA) permit federal dollars for elective abortion, in a sharp departure from legislative precedent?

No, says Daughter of Charity Sister Carol Keehan, the president of the Catholic Health Association (CHA), an industry lobby that represents Church-affiliated hospitals and nursing-care facilities, which provided crucial backing for the controversial health-care law when it narrowly passed Congress in 2010.

“We are always alert to additional legislative protections that ensure federal funds are not used to provide or facilitate abortions,” Sister Carol told the Register in an email exchange.

“At the same time, we continue to be confident, as we have been since the law passed, that ACA does not enable federal funds to be accessed for abortions (except for Hyde provisions),” she said, in a reference to the Hyde Amendment, which prohibits federal funds for abortion except in cases of rape, incest or to preserve the life of the mother.

But the U.S. Conference of Catholic Bishops (USCCB), some Catholic bioethicists and pro-life activists take a very different view of the ACA.

The crucial issue, they charge, is that Obamacare lacks explicit language similar to the Hyde Amendment. Thus, legal precedent suggests that it will be vulnerable to lawsuits filed by abortion-rights groups.

The CHA has fought off pro-life concerns on this issue ever since President Obama secured passage of the bill in the House after issuing an 11th-hour executive order designed to calm the fears of pro-life House Democrats who ultimately provided the critical votes needed to pass the bill. When Obama signed the bill during a high-profile ceremony at the White House, Sister Carol received one of the president’s pens.

However, the U.S. bishops and pro-life advocates were skeptical about the executive order’s value and withheld support for the law at the time because of their concerns that it would facilitate federal funding of abortion. And after Planned Parenthood's leader, Cecile Richards, dimissed the executive order as "a symbolic gesture" that should be tolerated by her organization's constituents, the USCCB saw no reason to reassess its judgment.

 

Executive-Order Skepticism

This skepticism has not been alleviated in the four years since the passage of the ACA became law, and pro-life organizations and lawmakers have repeatedly failed to pass legislation addressing concerns about the law.

“The language in the final paragraphs of President Obama’s executive order clearly states that nothing in that order can contravene existing law,” said Marie Hilliard, the director of bioethics and public policy at the National Catholic Bioethics Center, which consults with the U.S. bishops and other Church-affiliated institutions on such matters. “Thus, the executive order, by its own language, negates itself, since the Affordable Care Act permits such funding.”

Indeed, Hilliard said, legal precedent and the “legislative history of the Hyde Amendment” suggest that, “in the absence of such provisions, abortion could be considered an essential health-care benefit.”

“Without the Hyde Amendment or the similar provision in the Affordable Care Act (Stupak-Pitts Amendment),” Hilliard warned, “the results of a legal challenge to the denial of abortion coverage are quite obvious.”

Hilliard also reported that federal moneys are already flowing to several programs, authorized under ACA, including state health exchanges that have not explicitly barred coverage of the procedure.

“The Affordable Care Act clearly provides for direct funding with tax dollars for abortions on demand in three programs: the Cooperative Grants program, the High-Risk Pool program and the Community Health Centers program,” she said. And she noted that  some states receiving such funding initially indicated these moneys could be used for direct funding of abortions, until the plans were exposed.

Surge of Enrollments

Now, those same concerns about federal funding of abortion have gained traction with the surge of enrollments on the state exchanges authorized under ACA in the weeks before the extended March 31 deadline.

On April 16, Obama announced that an estimated 8 million people had enrolled in insurance plans authorized under ACA. Twenty-six state exchanges, established under the ACA, provide health plans that cover elective abortion, and many enrollees receive federal subsidies to help them pay for their insurance.

The Kaiser Family Foundation, in its January 2014 report, “Coverage of Abortion Services and the ACA,” estimated that the health law would facilitate unrestricted access to abortion in states that permit such coverage on their health exchanges or through the expansion of Medicaid.

“Of the estimated 11.8 million women who are uninsured and legally present in the United States, about half (52%) will be able to enroll in a Medicaid plan or private insurance plan that does not limit the scope of coverage for abortion services if they wish,” stated the Kaiser report, which expressed a clear sympathy for increasing access to abortion for poor women.

Still, the Catholic Health Association insists that the executive order prohibiting the use of federal dollars for abortion is in force, and its leaders base that judgment on the language of the executive order and on the ACA’s segregated accounting mechanism that is designed to satisfy pro-life concerns by keeping premiums for abortion separate from federal dollars used to cover other medical procedures.

“We have seen no evidence at all that any federal funding is being used to pay for elective abortions,” said CHA spokesman Jeff Tieman in an email message.

Tieman provided a link to the federal statute’s Section 18023 guidelines that spell out how insurers should address the issue.

He noted that “insurance companies choosing to offer abortion coverage must collect a separate, second premium check and deposit it into a separate account used exclusively to pay for such services.”

 

‘Accounting Gimmick’

Since the segregated account plan was first introduced, critics like the Susan B. Anthony List’s Marjorie Dannenfelser have dismissed it as an “accounting gimmick used to try to mitigate the damage of omitting the comprehensive Hyde language (Stupak-Pitts Amendment) from the ACA.”

Dannenfelser told the Register, “Under the scheme, plans charge enrollees, regardless of age and gender, a minimum of $1 per month for elective abortion coverage.”

Richard Doerflinger, the associate director of the Secretariat for Pro-Life Activities of the U.S. Conference of Catholic Bishops, raised similar concerns about transparency and the segregated accounting plan in an April 7 column in America, the Jesuit website and magazine.

“[A] common impression that enrollees will write a ‘separate check’ for abortion, which pro-life dissenters might try refusing to sign, is apparently false — the funds are separated at the insurer’s end,” Doerflinger explained.

Sister Carol disputes related findings of both the USCCB and other organizations evaluating the ACA, including groups supportive of abortion rights.

Sister Carol told the Register, “Our initial research shows that you can go into each marketplace and determine the benefits in each plan.

“The law requires that there be at least one plan in every state marketplace without abortion coverage; we have not been able to find anywhere where that is not the case.”

But the Guttmacher Institute, a research group previously affiliated with Planned Parenthood, issued a 2014 report on the ACA that concluded: "It is currently not easy for consumers to ascertain the degree to which abortion coverage is included within marketplace plans.”

Meanwhile, Doerflinger reported, “Some states have said that every health plan on their exchange will cover elective abortions.”

Thus far, every single plan on Rhode Island’s state exchange includes abortion coverage. Possibly, more states have followed this pattern, but the lack of transparency makes a definitive accounting elusive.

 

CHA’s Resolve

Tieman’s comment about the CHA’s “initial research” on the matter of state exchanges and abortion coverage suggests that the organization has looked into the matter. If so, it would be a public service for all Catholic and pro-life consumers if Sister Carol provided the results of that survey; and, of course, it would also serve to bolster CHA’s own credibility on this issue.

Does it matter that Sister Carol won’t budge on the issue of the health law and abortion coverage? And has this stance hampered efforts to secure legislation that would strengthen both conscience protections and language prohibiting federal funds for abortion?

Doerflinger suggested that it matters a great deal.

“One barrier to progress on the act’s problems regarding abortion is that many, including some Catholics, are confused about those problems or deny that they exist, “ he said.

But for now, CHA is not prepared to reconsider — at least not publicly — the objections raised by the USCCB and the National Catholic Bioethics Center or the findings of the Kaiser Family Foundation and the Guttmacher Institute.

Said CHA’s Tieman, “If you have a real example of an actual case in which federal funds were used to pay for an elective abortion, please share that with us, and we will respond and follow up accordingly.”

Joan Frawley Desmond is the Register’s senior editor.