On July 23, 2010, the nonpartisan Congressional Research Service (CRS) released a memorandum addressing whether the new health care reform law, the Patient Protection and Affordable Care Act (PPACA), prohibits states from using federal funds for abortions in new pre-existing condition insurance plans (high risk pools). The memorandum also addresses whether the President’s March 24, 2010 Executive Order or other Department of Health and Human Services (HHS) documents prohibit the use of these funds for abortions. Finally, the memorandum addresses whether other existing laws, such as the Hyde Amendment, would prohibit such funding.
The CRS reached the same conclusion that AUL reached both during and after the health care reform debate: nothing in the PPACA, the Executive Order, or other law prohibits the use of federal tax dollars for abortions through the high risk pools. Specifically, the memorandum states:
- Regarding the PPACA and abortion funding: “Abortion restrictions included in section 1303 of PPACA . . . would not appear to apply specifically to the funds made available for high risk pools by section 1101.”
- Regarding the Executive Order: “Executive Order No. 13535 does not specifically address high risk pools and the funds provided under section 1101 of PPACA.”
- Regarding HHS documents: “The solicitation and model contract neither explicitly provide the authority to cover elective abortions with federal funds, nor do they specifically prohibit the use of federal funds.”
- Regarding the Hyde Amendment: “Because the Hyde Amendment restricts only the funds provided under the appropriations measure for the Departments of Labor, HHS, and Education, it would not seem to apply to the funds provided for the high risk pools pursuant to section 1101(g)(1) of PPACA. . . . Other abortion funding restrictions, such as those in the appropriations measure for the Department of State and Foreign Operations, operate like the Hyde Amendment and limit only funds provided under that particular appropriations measure.
- On whether it is possible for a state high risk pool to use federal funds to cover and pay for elective abortions: “PPACA does not indicate what benefits may or may not be subsidized with federal funds appropriated under section 1101(g)(1) of the Act. In addition, as previously indicated, the Hyde Amendment and other abortion funding restrictions . . . would not seem to apply to the funds available under section 1101(g)(1).”
Importantly, the CRS memo concludes by stating that “it may be possible for the Secretary of HHS to provide that a high risk pool may not use federal funds to pay claims or subsidize premiums related to the coverage of elective abortions. The Secretary’s seemingly broad authority to establish other requirements for high risk pools may also arguably allow for a restriction on elective abortion coverage in the high risk pools.”
Following outcry from pro-life groups over proposals in three states to cover abortions through high risk pools, HHS released a statement indicating its willingness to establish restrictive requirements:
“[i]n Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) except in the cases of rape or incest, or where the life of the woman would be endangered. Our policy is the same for both state and federally-run PCIP programs. We will reiterate this policy in guidance to those running the Pre-existing Condition Insurance Plan at both the state and federal levels. . . .”
What Must be Done
First, HHS must immediately write regulations to ensure that federal funds are not used to pay for abortions or subsidize abortion coverage through the high risk pools.
However, this is not enough. Congress needs to act to remedy the mistake they made in March when they passed the PPACA without a comprehensive prohibition on federal funding for abortion. Without such a prohibition, this problem is going to continue come back through this and other provisions in the law.
 The Memorandum mentions a July 14, 2010 statement by HHS which stated that “abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) except in cases of rape or incest, or where the life of the woman would be endangered.” CRS notes that this is “not a formal policy issuance” but “it is reasonable to conclude that HHS intends on issuing regulations formalizing this stated policy.” This comment does not diminish the fact that no enforceable law currently prohibits the use of these funds for abortions.