Pro-Lifer Wins Battle Against Health Exchange, but Fight Continues
Barth Bracy, whose lawsuit succeeded in Connecticut, wants to challenge the health exchanges in four other states.
HARTFORD — As the executive director of the Right to Life state affiliate in Rhode Island, Barth Bracy endorsed efforts to block federal subsidies for abortion in the Affordable Care Act and hoped to stop the state health exchange from including plans that covered elective abortion.
But instead, the Rhode Island health exchange, authorized under Obamacare, opted to provide plans that cover elective abortion — with no exceptions. And then, after losing his own insurance, Bracy found himself forced onto the health exchange in his own state, Connecticut, which only offered plans with elective abortion.
Bracy and his wife, Abbie, sued the Connecticut health exchange. The Catholic couple, parents of four children, demanded that the state provide an alternative that did not require policyholders to pay premiums that included a hidden abortion surcharge used to fund the procedure.
Last week, Bracy and his wife withdrew their lawsuit, after state officials agreed to accommodate his demand and provide one or more health plans that exclude elective abortion.
The news marked a key victory for the pro-life movement, but activists like Bracy say the battle to roll back new health-insurance policies that embrace abortion as basic health care and ignore the rights of pro-life Americans has only just begun. They want to challenge state health exchanges in Hawaii, New Jersey, Vermont and Rhode Island that only offer plans that cover elective abortion.
Further, while pro-life advocates seek to expose the lack of transparency that makes it tough to establish whether a health-exchange plan actually covers abortion, they also hope to block recent attempts to force employers to cover the procedure in their employee health plans.
At present, a major focus of concern is a new California law that requires employers with standard managed health plans — including the state’s 16 Catholic colleges and universities — to cover elective abortion.
In August, Michelle Rouillard, director of the California Department of Managed Health Care, wrote a letter to a number of health-insurance carriers informing them “all health plans must treat maternity services and legal abortion neutrally,” and thus patients who sought elective abortion must be accommodated.
Ned Dolejsi, the executive director of the California Catholic Conference, told the Register that the state’s Catholic bishops had filed a civil-rights complaint with the federal government after the Department of Managed Health Care issued the directive.
“This is a coercive and discriminatory action by the state of California,” said Dolejsi.
He noted that the complaint filed with the federal Health and Human Services' Office of Civil Rights charged that the new interpretation of a state law dealing with insurance-coverage requirements violated the Weldon Amendment, a conscience-protection measure approved by Congress in annual spending bills.
The 2004 Weldon Amendment bars the HHS, Labor and Education Departments from providing funds to states that do not respect conscience exemptions for abortion coverage.
“The Weldon Amendment says that no state may discriminate against a provider of health care and an insurance company on the basis of abortion,” Dolejsi explained.
But the American Civil Liberties Union has defended the new interpretation of a state law that requires insurance carriers to provide comprehensive medical coverage and now puts abortion on equal terms with maternity services.
Thus far, the Life Legal Defense Foundation and the Alliance Defending Freedom, a public interest group, have also filed complaints with the HHS office on behalf of seven California Protestant churches and a group of faculty members at Loyola Marymount University, a Los Angeles-based Jesuit university that was informed it must provide elective abortion in its employee health plan.
The Weldon Amendment frames violations of its provisions as a civil-rights matter and that is why complaints must be filed with the HHS Office of Civil Rights, Katie Short, the legal director of the Life Legal Defense Foundation, told the Register.
While Short waits for action from the HHS Office of Civil Rights, she is heartened by fresh efforts in Congress to pass the Abortion Non-Discrimination Act (ANDA), proposed legislation designed to provide new remedies for civil-right violations involving abortion. Congressional hearings on the issue are planned for early December.
Casey Mattox, senior counsel for Alliance Defending Freedom, which is jointly representing the complainants challenging the new California state directive, told the Register that the law marks a more aggressive effort to equate abortion as basic health care and thus require church-affiliated institutions to provide a service that violates their fundamental moral beliefs. Yet despite the seriousness of this action, he noted, the ADF has not yet received a response from the HHS Office of Civil Rights.
Hidden Abortion Coverage
Mattox also represented Barth Bracy in his successful legal challenge to the Connecticut health exchange, which had previously excluded plans that did not provide elective abortion. And he is optimistic about challenging other state health exchanges in Vermont, New Jersey, Rhode Island and Hawaii.
For pro-life Americans, “the issue is not just that their plan covers abortion,” said Mattox.
“The bigger issue is the additional mechanism that requires the policyholder to pay directly to an abortion slush fund. And they have no choice.”
However, Mattox also emphasized that the lack of transparency on health exchanges makes it almost impossible for ordinary consumers to establish whether their plans cover elective abortion.
“In the District of Columbia, after a congressional uproar on this issue, they included information on the health exchange explaining which plans include abortion and which do not,” he said.
But HHS and the Affordable Care Act, he added, prohibit insurance carriers from including this information, even on policyholders’ premium.
Mattox asserted that he “had seen no justification from the government that explained why the lack of disclosure is in anyone’s interest.”
“No matter what side you are on [regarding abortion], disclosure is consumer protection,” he insisted. But he speculated that the lack of transparency on this matter has simplified efforts to secure adequate funding for elective abortion in health plans without putting the plan in violation of laws that bar the direct use of federal subsidies to cover the procedure.
Barth Bracy’s Battle
Like Casey Mattox, Barth Bracy has also become conversant in the complex legal issues and political debate surrounding coverage of abortion on the state health exchanges authored by Obamacare.
Over the past year, Bracy has helped with a broad pro-life effort to break through the lack of disclosure about abortion services on the health exchanges — a campaign that recently led to the launch of a new website, ObamacareAbortion.com, sponsored by the Charlotte Lozier Institute and the Family Research Council, which identifies state plans that do and do not provide abortion coverage.
While serving as the executive director of Rhode Island Right to Life, Bracy worked closely with pro-life legislators to file formal requests for information about the plans.
“It took over a year to ferret out that information from an uncooperative government,” he recalled.
But while he developed an intimate knowledge of the Rhode Island exchange, he was not aware that Connecticut’s health exchange also failed to provide non-offending plans.
That became apparent after Bracy was thrown off his old health plan and had to look for a new one on the health exchange in Connecticut, where he lives. Once he established that his home state’s exchange was no better than Rhode Island’s, he joined forces with the Alliance Defending Freedom to file a legal challenge.
Bracy is pleased that Connecticut has signaled its intention to accommodate his moral and religious values. But he emphasized that there is more work to be done in his state and others where consumers are stymied by plans that fail to disclose vital information.
“Open enrollment has begun, and the goal is to help people choose non-offending plans,” explained Bracy.
But first, he said, people in Connecticut must be informed that a better option is now available, and they then have to know where to look for it among a blur of plans.
Meanwhile, Bracy hopes that additional plaintiffs will come forward in states that don’t offer plans opting out of abortion coverage, and he points to his own experience has a sign of hope.
“My understanding is that the [Connecticut state] government never contested our complaint. They just wanted this to go away,” he suggested.
“If we can find other plaintiffs, they are likely to win.”
Joan Frawley Desmond is the Register’s senior editor.
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