Texas and Oregon last month enacted two completely different laws regulating abortion coverage in health insurance plans, underscoring the split among states on the issue since the 2010 Affordable Care Act took effect.

A little more than half the states in the country now prevent insurance policies purchased on the Affordable Care Act’s health exchanges from covering abortion. And in also restricting private insurers from covering abortion, Texas joined 10 other states that already did that, according to the Guttmacher Institute, an abortion research firm with historical ties to Planned Parenthood.

“The law, which was House Bill 214, is really a continuation of the pro-life movement’s efforts to defund the abortion industry,” said John Seago, the legislative director for Texas Right to Life. Seago told the Register the law recognizes that most Texans who buy health insurance — the Affordable Care Act requires all Americans to have health insurance — do not want to subsidize other people’s abortions.

“We think it’s a violation of conscience, and it should not be the role of the government to force taxpayers to fund abortions,” Seago said.

That understanding is at odds with what some states, where abortion access is more protected, have done in recent months. In January, New York Gov. Andrew Cuomo announced that his administration would impose new regulations requiring health insurers to cover “essential health benefits,” understood to include abortion and most contraceptives, including abortifacients, at no cost. The regulations took effect in June. A pending lawsuit is challenging the state’s abortion health insurance mandate.

“The bottom line is that New York state has adopted an abortion health insurance mandate without any legislative authority whatsoever, and our religious employers provide the coverage under protest while the litigation continues,” Kathleen Gallagher, director of pro-life activities for the New York State Catholic Conference, told the Register.

On Aug. 15, the same day Texas passed its law, Oregon Gov. Kate Brown, a Democrat, signed the Reproductive Health Equity Act, a bill that requires most health plans to cover all contraceptive and abortion services, with no deductibles or copays.

“The bishops are very concerned about this, which is going to do a lot of damage,” said Todd Cooper, director of the Oregon Catholic Conference, who added that the state, through its public health plan, is paying for about 10 or 11 abortions a day.

“Most Americans are not in favor of late-term abortions and sex-selective abortions. There are no restrictions on abortions in the state of Oregon. The governor and our state legislators are essentially forcing abortion down our throats,” Cooper told the Register.

 

Conscience Protection Act

Oregon and New York joined California as the three states in the country that require nearly all health plans to cover abortion services. Greg Schleppenbach, the associate director for the U.S. Conference of Catholic Bishops’ Secretariat of Pro-Life Activities, told the Register that those states’ laws violate the federal Hyde/Weldon Amendment, which prohibits states that receive federal funds from discriminating against health plans that choose to not cover or pay for abortions.

“The growing concern over conscience rights and these violations is why we’re pushing so hard for the Conscience Protection Act,” said Schleppenbach, referring to a bill in Congress that would codify the Hyde/Weldon Amendment, which is an annual rider to Congress’ annual appropriations act.

The Conscience Protection Act would also allow individuals and institutions to sue if the federal government failed to enforce the Hyde/Weldon Amendment or any other conscience protections in the context of abortion. Currently, the only mechanism to enforce those protections is the U.S. Department of Health and Human Services’ Office of Civil Rights. Last year that office declined to take any action when religious employers in California that offer group health plans lodged an official complaint against that state’s requirement that the plans cover abortions.

“Passage of the Conscience Protection Act is a top priority of the USCCB. We’ve been pushing very hard to get it enacted this year,” said Schleppenbach, who added that the most likely way of getting it passed is Congress attaching the measure as an amendment to the must-pass appropriations bill.

“Regardless of one’s position on abortion, nobody should be forced to pay for it or participate in it,” Schleppenbach said.

 

‘Commonsense’ Provisions?

Seago, of Texas Right to Life, noted that when congressional Democrats, who then controlled the House and Senate, passed the Affordable Care Act, also known as “Obamacare,” they allowed states to enact laws that would prohibit abortion coverage in the default health plans. In those states, people who want abortion coverage can purchase it themselves through a supplemental plan.

“Twenty-five other states have passed similar legislation that [states], basically, if you want abortion coverage you can get it, but it’s going to be an opt-in system, not an opt-out system,” Seago said.

Catherine Glenn Foster, the CEO and president of Americans United for Life, told the Register that laws such as the one Texas adopted are “commonsense” provisions that “simply reflect the fact” that private insurers generally do not cover elective medical procedures such as abortion.

“Only a small minority of abortions are currently paid for by private insurance, reflecting both the elective nature of abortion and the fact that most women pay for it out of pocket,” Foster said.

Critics of the Texas law have charged that it essentially forces women to buy “rape insurance” out of pocket since no one can predict being raped and having an unplanned pregnancy as the result of a sexual assault. Seago said that argument shows the opposition “completely misunderstands” the pro-life ethic.

“The whole rhetoric about rape insurance has the assumption that an abortion is the solution to rape, and that is a fundamental premise the pro-life movement disagrees with,” Seago said. “We believe the abortion itself is an act of violence, and that the additional act of violence is not going to heal or care for that woman who has suffered one act of violence in the form of rape and sexual assault.”

 

Medicaid Coverage

According to the National Women’s Law Center, which supports legal abortion, 33 states also withhold Medicaid coverage from low-income women who seek “medically necessary” abortions. South Dakota uses Medicaid dollars to cover abortion if the woman’s life is endangered.

On Aug. 25, South Carolina Gov. Henry McMaster, a Republican, issued an executive order directing the South Carolina Medicaid agency to seek permission from the federal government to exclude abortion facilities from the state’s Medicaid provider network.

“There are a variety of agencies, clinics and medical entities in South Carolina that receive taxpayer funding to offer important women’s health and family-planning services without performing abortions,” McMaster said in prepared remarks.

Meanwhile, 17 states use their own funds to ensure that women enrolled in Medicaid have coverage for abortion. Of those, 13 states provide the coverage under court orders, while four other states voluntarily provide the coverage, according to the National Women’s Law Center.

David Kilada, the political director of Oregon Right to Life, said his state’s new law requiring nearly all health insurers to cover abortion is a setback to the pro-life movement, which he said has made progress over the last 25 years in reducing the number of the state’s abortions by 40%.

“We were already the most pro-abortion state in terms of law before this bill, but the Democratic legislature and the governor are so extreme that they weren’t happy with us being the most pro-abortion state in the country. They wanted to put us even further afield,” said Kilada, who added that his organization is planning to file a lawsuit to stop the new law.

The local pro-life movement also plans to make it a campaign issue.

“We intend to make voters know how extreme they are,” Kilada said, “that they support even more late-term, sex-selective abortions, that they are against any possible restrictions of abortion, and that they have no conscience whatsoever when it comes to the humanity of the unborn.”

Said Kilada, “It’s going to be a long-term battle, but we’re in it for the long run.”

Brian Fraga writes from

Fall River, Massachusetts.