Within the next two weeks, the U.S. Supreme Court is expected to decide the fate of the Affordable Care Act (ACA), President Obama’s controversial healthcare law. One of three outcomes is likely: (a) the Court will uphold the entire law; (b) the Court will strike down the entire law, holding that certain provisions are unconstitutional; or (c) the Court will strike down one or more provisions of the law as unconstitutional— such as the requirement that most Americans obtain insurance and related provisions—while permitting the rest of the law to stand.
Given the range of possible outcomes, two important questions must be answered. First, what constitutes a “win” for unborn children, their mothers, and the majority of Americans who do not want to pay for abortions or abortion coverage? Second, what actions need to be taken by Congress and/or the states in response to each of the possible outcomes?
I.
The invalidation of the entire Affordable Care Act is the only true “win” for unborn children, their mothers, and the majority of Americans who do not want to pay for abortions or abortion coverage.
If only certain portions of the ACA – such as the controversial “individual mandate” –are struck down by the Court, anti-life provisions and potential loopholes that could permit abortion funding will likely remain. While we address how Congress and a willing White House can correct these problems in the law in part II below, on the question of how a Court decision can correct the life-related problems in the law, nothing short of a complete invalidation of the law will suffice.
Why?
Fundamentally, anti-life provisions and mandates are woven into the very fabric of the Affordable Care Act, and these problems will not be adequately addressed if the Court only strikes down the “individual mandate” (requirement that most Americans obtain insurance coverage) and related provisions.
Allow us to recap the top anti-life concerns in the ACA:
First, AUL attorneys have consistently noted that the ACA fails to comprehensively prohibit the use of federal tax dollars for abortions or insurance coverage for abortion and that this loophole can easily be exploited. History has shown that when Congress does not include an explicit prohibition on abortion funding or coverage in healthcare-related laws, courts and administrative agencies interpret such laws to include it.
Not surprisingly, following the passage of the ACA, several states quickly attempted to obtain funding for abortion by including abortion coverage in their high-risk insurance pool proposals. Only after these efforts were exposed by pro-life groups did the Department of Health and Human Services (HHS) issue regulations prohibiting abortion coverage through the high-risk pools.
Second, the ACA permits health plans that provide abortion coverage to participate in the Exchanges that must be established in each state under the law and permits those plans to obtain federal subsidies. This provision is inconsistent with existing law— specifically, the Hyde Amendment and the Federal Employee Health Benefits Program (FEHBP) which prohibit federal subsidies from supporting insurance plans that cover abortion, regardless of whether the federal dollars are used to directly pay for abortion.
While states are allowed to enact new laws “opting out” of permitting insurance plans that cover abortions to participate in their Exchanges, some states are unable or unwilling to do so. To date, only 16 states have already enacted opt-outs. Requiring states to take this additional step turns the status quo on its head—instead of maintaining the current presumption that federal tax dollars do not subsidize insurance plans that cover abortions, the ACA creates the presumption that federal tax dollars do subsidize the provision of abortion coverage, absent a subsequently enacted state law to the contrary.
Third, Americans in states without opt-out laws who are inadvertently or through employment enrolled in insurance plans that cover abortion will be required to pay an “abortion premium” that will be used exclusively to pay for abortions. The “abortion premium mandate” provision is so deeply problematic that it was the focus of the amicus curiae brief submitted to the Supreme Court by AUL, along with lead counsel Bioethics Defense Fund and other pro-life organizations. In our brief, we argue that the ACA violates the Free Exercise Clause of the First Amendment by effectively forcing millions of individuals to personally pay a separate abortion premium in violation of their sincerely held religious or moral beliefs.
The “abortion premium mandate,” particularly when paired with the forced purchase of insurance required by the ACA’s “individual mandate,” directly violates the conscience and free exercise rights of millions of Americans by imposing an unconstitutional burden on them within the private insurance marketplace. However, even if the Court strikes down the “individual mandate” in the law, it will not necessarily strike down the “abortion premium mandate.”
Fourth, while the ACA does not permit federal subsidies provided to insurance plans that cover abortions to directly pay for abortions, that restriction is dependent on the continued existence of the Hyde Amendment. In other words, if Congress ever fails to add the Hyde Amendment to the yearly Labor, Health & Human Services (LHHS) Appropriations Bill — an omission the abortion lobby actively fights for — insurance plans that cover abortions within state Exchanges will be permitted to directly use federal subsidies to pay for abortions.
Fifth, while at least one multi-state qualified health plan (health plans created pursuant to a contract between the federal government and health insurance issuers, two of which must be offered in each State) in an Exchange must not provide coverage for abortion, abortion coverage is otherwise permitted in the multi-state qualified health plans.
Sixth, just as AUL warned, the “preventive care” mandate in the ACA is being used to require insurance plans to cover abortion-inducing drugs. The Obama Administration achieved this by relying on a non-elected advisory committee of abortion advocates who, not surprisingly, recommended that the definition of care for women must include life-ending drugs and devices and sterilization procedures. Earlier this year, HHS adopted this recommendation. As a result nearly all plans must follow those guidelines, and nearly all employers must offer the plans to their employees or pay a stiff penalty.
Seventh, the ACA lacks real conscience protections. The inclusion of life-ending drugs/devices in the administratively-created “preventive care” definition demonstrates the need for strong conscience protections in healthcare laws. Most insurance plans and employers are now required to offer coverage for life-ending drugs/devices regardless of sincerely held religious, moral, or ethical convictions.
Currently, 47 states have laws preventing the coercion of conscience – an effort that AUL helped champion. But under the ACA, states that have stronger conscience protections than the ACA must yield to the federal government.
II.
Regardless of the Court’s decision, Congress needs to take strong, decisive action to protect unborn children and their mothers, prevent taxpayer funding for abortions and insurance coverage for abortion, and protect rights of conscience.
Obviously, if the Court upholds the ACA or portions of it, Congress must act to repeal the harmful provisions in the law. Lawmakers in Washington have already introduced several pieces of legislation that would do just that. They are:
The “Protect Life Act.” H.R. 358 /S. 877 modifies the ACA to comprehensively prohibit both funding for abortion and insurance coverage for abortion through the law. The Protect Life Act also strengthens the conscience protections contained in the ACA, guarantees respect for state conscience protections, and ensures that health care professionals have an adequate means to enforce their basic civil right to provide care without being forced to participate in abortions.
The “No Taxpayer Funding for Abortion Act.” This legislation would create a comprehensive prohibition on the use of federal funds for abortions and insurance coverage for abortion and includes strong conscience protections. In other words, this bill is broader than the “Protect Life Act” in that it addresses all federal funding, not just that authorized by or appropriated through the ACA.
The “Respect for Rights of Conscience Act.” H.R. 1179 amends the ACA to protect the right to provide, purchase, or enroll in health care coverage that is consistent with one’s religious beliefs and moral convictions. It also ensures that no requirement in the ACA creates new pressures to exclude those exercising such rights from health plans.
Further, even if (a) the Obama Administration were to have a drastic change of heart and apply comprehensive conscience protections to the “preventive care” mandate (or the ACA in its entirety) or (b) Congress enacted and President Obama or a future president signed the “Respect for Rights of Conscience Act,” the inclusion of life-ending drugs like ella in the definition of “preventive care” remains deeply problematic. It is poor public policy to require insurance plans to cover life-ending drugs/devices and that policy should be rescinded by this or a future administration.
States should also continue to enact “opt-outs” to ensure that insurance plans that cover abortions are not permitted to participate in their Exchanges and use this opportunity to enact other strong restrictions on the use of state funds to pay for or subsidize abortion.
Even if the Supreme Court strikes down the ACA, Congress, a future pro-life Administration, and states should take decisive actions to ensure that we do not have to face this battle again in the near future.
First, Congress should pass and the President should sign the “No Taxpayer Funding for Abortion Act.” This law would apply a comprehensive prohibition on federal funding for abortions or insurance coverage for abortion and includes strong conscience protections.
Second, a pro-life Administration, after carefully examining rules and regulations pertaining to Medicaid, Title X, and other sources of federal family planning funds, should place restrictions on recipients of federal family planning funding to protect life and ensure that the government is not subsidizing the abortion industry. Further, states should be permitted to enact additional restrictions on recipients of federal funds within their own jurisdiction.
Third, states should: (a) enact strong prohibitions on the use of state funds for abortions or insurance coverage for abortion; (b) prohibit insurance plans within their states from covering abortion, except perhaps through a separate, optional rider; and (c) work towards comprehensively protecting conscience. AUL has model legislation for all each of these state legislative options and will continue to assist states in enacting these laws, regardless of the outcome of this case.
