WASHINGTON — The federal government began to shut down after the stroke of midnight on Oct. 1, after the U.S. Senate voted repeatedly to reject any House of Representatives amendments to the nation’s health-care law, including the HHS mandate requiring religious employers to provide contraceptive services against their consciences.
The shutdown began as new revelations put into focus how Planned Parenthood and other players in the U.S. abortion industry could profit from potentially tens of thousands of abortions covered by taxpayer-subsidized health plans in the Affordable Care Act (ACA).
Even with the threat of a government shutdown, the U.S. Senate rejected a proposal to fund the government with an amendment offering conscience and religious-freedom protections sought by the Catholic Church, its charities and religious nonprofit and for-profit businesses.
The Democrat-led Senate voted 54-46 to reject the Republican-led House’s continuing resolution (CR), which included amendments to delay by one year the individual mandate to buy insurance, repeal a tax on medical devices and give protection to religious and conscientious objectors against the HHS contraception mandate.
The HHS mandate requires employers to provide no-co-pay insurance coverage for sterilization and contraception, as well as some drugs classified as contraceptives that may cause abortions, such as Ella.
"If Congress does not act, our only recourse is the courts," said Richard Doerflinger, associate director of Pro-Life Activities for the U.S. Conference of Catholic Bishops.
Cardinal Sean O’Malley of Boston and Archbishop William Lori of Baltimore informed senators and members of Congress in a letter that it was of "vital importance" that they include the Health Care Conscience Rights Act (H.R. 940/S. 1204) in the continuing resolution.
More than 200 Catholic plaintiffs and others with moral and religious objections to providing the coverage have filed suit against the federal government over the HHS mandate. Plaintiffs include private businesses, Catholic Charities affiliates, Catholic dioceses and colleges and universities, including the University of Notre Dame and EWTN, the Register’s parent company.
Doerflinger said that without relief from either Congress or the courts, "some organizations are going to have to choose between their convictions and their ability to offer health benefits."
"That is a terrible outcome of a law that was supposed to expand access to health care," he said.
The defeated resolution would have put to rest those legal challenges, but Senate Majority Leader Harry Reid, D-Nev., made clear that the Senate would not accept any bill passed by the House to fund the government that touched the Affordable Care Act.
The House returned with another compromise that would delay the individual mandate to buy insurance for one year — President Barack Obama has already delayed the employer mandate for that same period — and require both Congress and the White House to give up their own federal health plans and sign up for the multistate plans offered on the state exchanges. The Senate also rejected that proposal, leading to the Oct. 1 shutdown of the federal government.
While a government shutdown loomed in the congressional fight over funding the ACA, the Office of Personnel Management (OPM) announced on Sept. 30 that it will allow members of Congress and their staffs to purchase multistate health plans that include abortion coverage. Under this arrangement, the federal government will pay 75% of the costs of those health plans.
"This decision honors the spirit of the Affordable Care Act, which is significantly improving health care for women," said Reps. Rosa DeLauro, D-Conn., and Louise Slaughter, D-N.Y., both abortion-rights supporters.
But the new OPM rule appears to run afoul of the 1983 Smith Amendment, which prohibits federal funds to pay for abortions or "administrative expenses in connection with health plans" that provide "any benefits or coverage for abortions."
"It’s outrageous," Rep. Chris Smith, R-N.J., told the Register. "It fits a pattern of the Obama administration disregarding laws that they don’t agree with."
OPM stated it "does not administer the terms of the health-benefits plans offered on an exchange." However, it said it would take administrative steps to make sure that abortions were paid from individual, not government, funds.
But the very act of using federal funds to make sure that taxpayer dollars remained segregated from the multistate plan’s abortion premium was a violation of the Smith Amendment, according to Doerflinger.
"We have said that to obey the federal law, OPM must not subsidize or have any involvement with federal employees’ health plans if those plans cover elective abortions," he said. "That is the status quo now for all federal employees."
Still, Smith said his 1983 legislation "couldn’t be more clear." But he said the larger issue was that "the law does not apply to this White House."
"The president disregards the plain, unambiguous, bright line-in-the-sand text of the United States Code [of laws] to do whatever he wants and whatever suits him and his people in the White House," Smith said. "That puts all of our laws at risk."
Subsidized Abortion Plans
The full impact of the ACA on the U.S. abortion industry is only beginning to come into focus. According to a new study by the Charlotte Lozier Institute (CLI), the research arm of the Susan B. Anthony List, the ACA could provide abortion coverage through multistate plans offered on state health exchanges for as many as 111,500 women and girls seeking abortions each year. That number represents 2% of potentially 5.57 million women between the ages of 15-44 newly eligible for either the Medicaid expansion or the federally subsidized private insurance policies from the state exchanges.
"What our study examined was the maximal impact of Obamacare fully implemented," said Chuck Donovan, CLI’s president.
Donovan said that, barring Congress taking corrective action, the only way to sweep abortion clean from the state health exchanges would be for states to pass laws removing abortion as a covered benefit. "It is very hard to get these laws passed and keep abortion out of the exchanges, but 23 states have done it," he said. "But some of them, of course, won’t."
Abortion is mainly a cash-only business, and the Guttmacher Institute notes that private insurance paid for only 12% of abortions in 2008, although 30% of women having abortions also had private insurance.
However, former Planned Parenthood facility operator Abby Johnson told the Register she believes the ACA may end up shifting the model for how the abortion industry does business. "This is exciting for Planned Parenthood, because if this is going to be a government-subsidy program similar to Medicaid, then that money is guaranteed," she said.
The federal Hyde Amendment prohibits the spending of federal Medicaid money on abortion procedures except in cases of rape, incest and to save the life of the mother. The law does not prohibit states from using their own Medicaid funds to subsidize the cost of elective abortions, and 17 states do.
The Money Motive
Johnson, a Catholic convert with a pro-life ministry that helps abortion workers get out of the industry, pointed out that health-insurance companies are under pressure to create savings and will be far more willing to reimburse abortion as a cheaper procedure than childbirth. The abortions will be fully covered by the mandatory monthly abortion surcharge charged to customers in these plans — if there is not enough money, insurance companies will have to increase the abortion surcharge, driving up the cost of premiums.
Johnson expected that, with guaranteed money for abortions, the price of abortions will also increase. "Abortionists will be able to charge whatever they want, and our tax dollars will subsidize that fee," she said.
On Oct. 9, Rep. Smith and others introduced the Abortion Insurance Full Disclosure Act, which would require all plans on the exchanges to disclose whether or not they include abortion. The bishops and a variety of pro-life groups support the bill.
For Smith, the looming expansion of abortion through taxpayer-subsidized plans is a reminder of the critical role the Stupak Amendment could have played. That amendment, initially passed by the House but later dropped from the final version of the ACA due to resistance, would have specified that federal funds could not be used to pay for abortions or to cover any part of the costs of any health plan that includes abortion coverage, except in cases of rape, incest or danger to the life of the mother.
"It was as airtight as statutory language can be," Smith said. "It would have been hard for the president to overcome that, had it been enacted."