WASHINGTON — On Sept. 15, the non-partisan Government Accountability Office (GAO) issued a report that confirmed the pro-life movement’s early warnings that implementation of the Affordable Care Act (ACA) would permit taxpayer-subsidized abortions.
Commissioned by House Republicans, the survey found that, in a sample of 18 insurers, all but one allowed elective abortions to be covered under plans subsidized with federal dollars — a violation of federal law. And most insurers, in violation of federal rules, did not segregate private funds used for abortion from the pool of federal dollars allotted for health-insurance coverage.
“This report confirms the U.S. bishops’ long-standing concern about abortion coverage that we raised both before and after enactment of the Affordable Care Act by Congress,” Cardinal Sean O’Malley of Boston, chairman of the Committee on Pro-Life Activities for the U.S. Conference of Catholic Bishops, said in a statement.
“Surveys have shown that most Americans do not want elective abortion in their health coverage and do not want their tax dollars to fund abortions. Their wishes are not being followed.”
Cardinal O’Malley then proposed the only “adequate solution” to the problems identified in the report: “Bring the Affordable Care Act into compliance with the Hyde Amendment … by excluding elective abortions from health plans subsidized with federal funds.”
Meanwhile, the Obama administration responded to the report by promising corrective action.
“CMS [Centers for Medicare & Medicaid Services] will work with stakeholders, including states and issuers, so they fully understand and comply with the federal law prohibiting the use of federal funds for abortions,” said Ben Wakana, a spokesman for the Department of Health and Human Services, in an email message to the Register.
The GAO report quickly revived questions about an 11th-hour provision in the ACA that was tacked on in 2010 to address the concerns of pro-life Democrats, whose votes were crucial to the passage of Obamacare.
The White House’s remedy to the impasse at that time came in the form of an executive order that prohibited the use of taxpayer funds for elective abortion. Insurers were directed to segregate federal subsidies for health insurance from funds that would be collected through an abortion surcharge imposed on policyholders.
The executive order won the support of Daughter of Charity Sister Carol Keehan, the influential leader of the Catholic Health Association, an industry lobby, who received a pen when Obama signed the legislation.
Last April, despite mounting concerns about ACA-authorized plans offering unrestricted access to abortion, Sister Carol told the Register that she remained “confident, as we have been since the law passed, that ACA does not enable federal funds to be accessed for abortions.” Sister Carol did not return a request for comment.
However, the U.S. bishops and their allies in the pro-life movement never accepted the executive order. Dismissing it as an “accounting gimmick,” they said it fell short of the tough language embedded in the Hyde Amendment, which barred elective abortions from health plans that drew federal subsidies.
Now, four years later, the GAO investigations identified 1,036 qualified plans in 28 states that included elective abortions, and most insurers contacted by the watchdog group “indicated that the benefit is not subject to any restrictions, limitations or exclusions.”
Further, the insurers “did not itemize the premium amount associated with non-excepted abortion-services coverage on enrollees’ bills nor indicate that they send a separate bill for that premium amount,” read the GAO report.
The federal health law also requires that insurers notify new policyholders about plans that cover elective abortion, and the GAO found that most insurers in the sample complied with this rule. However, “four issuers indicated they were not disclosing this information to enrollees,” and some were unaware that the information should be provided.
Finally, GAO investigators confirmed that five state health exchanges did not provide one plan that excluded election abortion, forcing qualified policyholders who oppose such procedures to violate their moral beliefs as the price for accessing affordable health care. The five states are Connecticut, Hawaii, New Jersey, Rhode Island and Vermont.
Rep. Chris Smith, R-N.J., a pro-life leader in the House, who has proposed legislation to bolster safeguards against taxpayer funding of abortion, accused the White House of misleading the public.
“President Obama issued an executive order on March 24, 2010, that said: ‘The act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to newly created health-insurance exchanges,’” said Smith, co-chairman of the Bipartisan Congressional Pro-Life Caucus.
“It turns out that those ironclad promises made by the president himself are absolutely untrue.”
Pro-life leaders pointed to the report’s findings as fresh evidence of Obamacare’s sharp departure from long-standing legislative restrictions on federal funding of abortions.
And Marjorie Dannenfelser, the president of the Susan B. Anthony List, an activist group that promotes pro-life candidates, called out Democrat lawmakers from pro-life states who had provided crucial votes for Obamacare.
“Shame on senators like Mary Landrieu, Mark Pryor and Kay Hagan — all of whom come from strong pro-life states and voted for taxpayer funding of abortion in Obamacare,” said Dannenfelser in a statement that marked the news.
The GAO report, said Dannenfelser, underscored the need for new legislation to fix the problems uncovered by the watchdog group, but she expressed skepticism that even vulnerable Senate Democrats would change course and back such proposals.
“The No Taxpayer Funding of Abortion Act gives these senators a prime opportunity to right a grave wrong, but they continue to stand with Harry Reid and the abortion lobby instead of their constituents by blocking a vote on it,” she charged, in a reference to proposed legislation — and related bills — that have been approved in the House but stalled in the Senate.
HHS Compliance Issues
At present, the Obama administration has sought to counter the headlines triggered by the GAO report with pledges that the government will tackle compliance issues.
“To help ensure compliance with the policy, CMS will provide additional guidance in the coming days,” an HHS official, speaking on background, told the Register.
But the official also challenged the suggestion that the problems noted in the report actually confirmed pro-life fears about the ACA’s weak language on abortion. For example, he suggested that insurers’ failure to document the segregation of funds for elective abortion should not be viewed as evidence that they violated the law.
“The law requires issuers to collect separate payments from consumers with health-insurance plans that cover abortion services for which the use of federal funds are prohibited,” said the official.
“It does not specify a method that issuers must use to comply with the separate payment requirement.”
The official also suggested that the federal administrators should not be the only ones held responsible for compliance problems.
“As is the case with many provisions in the Affordable Care Act, states and state insurance commissioners have an important role in enforcing the law.”
Richard Doerflinger, associate director of the bishops’ pro-life office, rejected the administration’s suggestion that the compliance problems can be easily fixed.
“In every other federal program, you cannot give tax dollars to a health-care program that provides abortion on demand. The ACA violated that policy, and that is one reason why we asked people not to vote for it before the final passage,” Doerflinger asserted.
“The only way they could claim with a straight face that the funds are not going to abortions would be if segregated payments were followed to the letter,” Doerflinger added.
“But insurers and state insurance commissions, who were supposed to make sure accounting practices were followed, have not paid much attention to that.”
Doerflinger did not expect that the GAO report would spur the immediate changes to the law that pro-life leaders have long demanded. But he noted that the study provides additional information that should be welcomed by opponents of abortion.
“Pro-life Americans who had trouble getting a list of plans that do not cover abortion can find that information in the GAO report,” he said.
“The GAO has developed lists of plans that cover elective abortion and plans that don’t. It will help people have informed consent when choosing a plan.”
Doerflinger concluded, “But the overall message of the report is that when people said the segregation-of-funds idea was a cosmetic ploy that would not do anything meaningful, they were right. It doesn’t do much.”
Joan Frawley Desmond is the Register’s senior editor.