Lawsuit Filed in Connecticut Over Abortion Surcharges

A Catholic deacon filed the suit after the government health-care law canceled his old plan, he said, forcing him to pay significantly more or violate his conscience by paying for abortions.

Access Health CT is Connecticut's health-insurance exchange
Access Health CT is Connecticut's health-insurance exchange (photo: foxct.com)

DAYVILLE, Conn. — For nearly five years, Barth Bracy has spoken out about the Affordable Care Act’s abortion provisions. But when the Catholic deacon found out he might be forced to subsidize abortions in his home state of Connecticut, he decided he needed to register a stronger response.

Deacon Bracy has thus filed a federal lawsuit in Connecticut challenging that state’s health-care exchange law. The lawsuit claims that forcing Bracy, who is the executive director of Rhode Island Right to Life, to pay the abortion surcharge “would constitute scandal.” It added, “This action would undermine his public speech and writing against abortion, and specifically against abortion coverage in the health-insurance exchanges under the Affordable Care Act.”

The deacon said his hand was forced when he received a letter last October from his insurance carrier, Anthem Blue Cross Blue Shield. They informed him that his family’s plan was being canceled because of the federal health-care law’s new coverage requirements.

“I liked my plan. I wanted to keep it,” said Deacon Bracy, who lives in Dayville, Conn., with his wife and four children.

Deacon Bracy says his only current health-care insurance options are an expensive private plan with a premium of more than $900 a month or the subsidized plan on the Connecticut health exchange that would force him to pay a separate monthly fee for other people’s abortions.

“I can’t in good conscience do that,” Deacon Bracy said. “No Catholic can do that. No person of free will can do that.”

Faced with two untenable choices, the deacon picked option C: He sued the state.

 

Lawsuit Filed

The lawsuit names outgoing Secretary of Health and Human Services Secretary Kathleen Sebelius and other federal and Connecticut state officials as defendants.

It argues the defendants are violating Deacon Bracy’s rights under the 1993 Religious Freedom Restoration Act, the Connecticut Religious Freedom Restoration Act and the First Amendment’s Free Exercise of Religion Clause.

The lawsuit also challenges the alleged secrecy clauses within the Affordable Care Act that, Deacon Bracy and his attorneys argue, prevent U.S. citizens from being told, prior to enrolling in the health-care exchanges, whether the plan they want to purchase includes abortion coverage. The clauses also prohibit enrollees from learning how much of their premiums are used to pay for other people’s elective abortions, according to Casey Mattox, senior counsel with Alliance Defending Freedom, a Christian nonprofit legal firm that filed the lawsuit on Deacon Bracy’s behalf.

“Everyone in Connecticut right now with a plan on the Connecticut exchange is paying an abortion surcharge, and they essentially have no idea they are doing it,” Mattox told the Register. Mattox said the Connecticut exchange — Access Health CT — does not have any plans that do not cover abortion, and he said residents do not learn about the abortion coverage until after the point of enrollment.

Access Health CEO Kevin Counihan said in a prepared statement that the allegations that information regarding plan details and coverage are not listed on the exchange’s website “are untrue.” Counihan said every health plan offered on the exchange is posted with "Plan Design Documents" that “identified that both therapeutic and elective abortions were covered.”

“This information is available during the anonymous shopping experience to all consumers who visited our website and compared coverage plans,” Counihan said.
 

No Opt-Out Option
Deacon Bracy’s lawsuit is the latest instance of controversy concerning abortion coverage in President Barack Obama’s signature health-care law — something that the U.S. Conference of Catholic Bishops (USCCB) and pro-life organizations have been warning about for several years.

The federal health-care law forces taxpayers to subsidize plans on the health-care exchanges that cover elective abortions, unless their state has enacted legislation prohibiting abortion coverage on their exchange. The National Women’s Law Center — which supports abortion — says 25 states to date have enacted these bans and that similar bills have been introduced this year in Florida, Iowa, Ohio, West Virginia and Rhode Island.

Plans not exempted from abortion coverage also charge all of their enrollees a separate fee, or a surcharge, that is used to pay for abortions for anyone on the plan.

Mattox said the funding scheme is an attempt to get around the federal prohibition of using tax dollars for elective abortions.

Meanwhile, a USCCB analysis revealed that the federal government prohibits health insurers from allowing enrollees to opt out of the abortion surcharge on conscience grounds or even telling them how much of their money will go toward other people’s abortions.

Deacon Bracy’s lawsuit, among other requests, is asking a federal judge to allow him to opt out of the abortion surcharge on the Connecticut exchange.

In October 2013, U.S. Rep. Chris Smith, R-N.J., introduced The Abortion Insurance Full Disclosure Act, which would require health insurers to advertise the abortion coverage in their plans and tell consumers how much they would pay for the abortion surcharge. More than 70 federal lawmakers co-sponsored the bill, which has not advanced in the Republican-controlled House of Representatives.

“The [Affordable Care Act] requires premium payers to be assessed an abortion surcharge every month to pay for abortions,” Smith said in prepared remarks. “But many pro-life Americans may unwittingly purchase pro-abortion plans because of a marketing secrecy clause embedded in Obamacare, which stipulates that the surcharge be minimally disclosed only at the time of enrollment. In other words, bury it in the fine print.”

Obtaining information on what health plans cover elective abortions on the state and federal exchanges is “extremely difficult for many plans,” according to an analysis by the Charlotte Lozier Institute, the education and research arm of the pro-life Susan B. Anthony List.

The Lozier Institute identifies Connecticut and Rhode Island as the two states whose health-care exchanges offer no abortion-free insurance plans. The Lozier Institute also said five other states — Hawaii, Minnesota, New Jersey, Vermont and Wyoming — do not provide readily available, abortion-specific information for health-care consumers. Those states also have no ban on elective abortions in their exchanges.

 

Changes Coming — but Too Late?
In a letter to Smith and other Congress members last November, the U.S. Office of Personnel Management (OPM) said that the Affordable Care Act requires all state health-care exchanges, beginning in 2017, to offer at least one “multistate plan” that does not cover abortion.

“That is not a whole lot of consolation for you if you had your plan canceled, and you’re then told to go without health insurance for a while until they get an abortion-free plan on your exchange,” Mattox said.

Counihan said that it was the federal government’s fault that Access Health CT does not currently have an abortion-free multistate plan, because the OPM did not submit the necessary paperwork on time to get a plan on the exchange for the 2014 open-enrollment period. However, he says Connecticut plans to offer the multistate plan on its exchange beginning in November 2015.

In Rhode Island, Deacon Bracy and Rhode Island Right to Life have lobbied for legislation to allow organizations and individuals to opt out of abortion coverage on the state’s health-care exchange, HealthSource RI.

Deacon Bracy said he is “cautiously optimistic” that upcoming leadership changes in the Rhode Island Legislature will make it possible to amend that state’s health-care exchange, which the deacon said consists of 28 insurance plans that all cover abortion.

“It’s absolutely insane that every plan in the state exchange covers elective abortion,” he stated.

With his current health plan set to expire Nov. 30, Deacon Bracy said the government is using a “carrot and stick” strategy.

“First, they dangle us a carrot, offering subsidies that will lower our health-insurance costs from $494 per month to $3 per month, but with a catch — we would need to reach into our pockets and pay a $1 fee each month, from own private funds, that will be exclusively used to pay for other people’s abortions,” he said.

The “stick,” Deacon Bracy added, is the government forcing his current plan to be canceled and — with the off-exchange insurance being unaffordable — threatening to fine him $975 in 2015 and up to $1,500 in subsequent years if he fails to sign up for health insurance.

“We’re given a choice of either violating our conscience in going for the subsidies or not being able to afford health insurance at all and being penalized,” Deacon Bracy said. “It’s like they’re throwing us off a train and then running us over.”

Register correspondent Brian Fraga writes from Fall River, Massachusetts.