The Far Reach Of Stupak’s Amendment

Over at FiredogLake, Jon Walker points out that the Stupak Amendment “could effectively stop many employer-provided health insurance plans from covering abortions for tens of millions of Americans” and restrict any private plan in the Exchange from offering abortion coverage. The amendment stipulates that “no funds” authorized under the health care reform bill “may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case…[of a risk of death of the mother, rape, or incest].”

But as Walker explains, while the bulk of the federal money may lie in subsidizing coverage for middle class Americans, the federal dollars appropriated through HR 3962 touch “many insurance plans directly and indirectly.” The Stupak amendment would prohibit insurers from selling abortion coverage in the following ways:

1) Any policy that is sold within the Exchange: A strict interpretation of the Stupak language suggests that since the Exchange is established by the federal government, any plan that operates within the Exchange would not be able to provide abortion coverage. However, since Stupak allows insurers that operate plans within the Exchange to sell abortion riders, one could also assume that a policy in the Exchange could still offer abortion coverage.

2) Policies in the Exchange that receive risk-adjustment dollars: Even though the risk adjustment mechanism is distributed from a pool that is seeded with insurer dollars, the government distributes the dollars, which adjust for individuals who receive government-subsidized coverage. Moreover, one could also argue — like the Bishops did — that once insurer money enters a risk adjustment mechanism that is administered by the government, it automatically becomes government money. Under this explanation, insurers that sell abortion riders may not qualify for risk adjustment payments.

3) Policies in the Exchange that are directly subsidized by the government: Anyone who receives government affordability credits (Americans between 150-400% FPL) would not be able to purchase an insurance policy that includes abortion coverage. Insurers are also required to accept all applicants and would have to stop offering abortion coverage once it accepts its first federal-dollar beneficiary.

4) Employer-sponsored policies that receive reinsurance funds: The bill requires the Secretary of Health and Human Services to “establish a temporary reinsurance program to provide reimbursement to assist participating employment-based plans with the cost of providing health benefits to retirees and to eligible spouses, surviving spouses dependents of such retirees.” Employer-sponsored plans that offer abortion would not be eligible for this funding or would have to forego the benefit.

5) Employer-sponsored policies that receive “wellness program grants”: The bill allows the Secretary of Health and Human Services to award Wellness program grants to small employers. Employers would have to segregate their wellness programs from their health benefits in order to receive the credit and provide abortion coverage.

6) Employer-sponsored policies that receive small business credits: For small businesses that want to offer health insurance coverage, the bill provides a tax credit over a two-year period will help them transition to or continue providing health benefits to their employees. In order to receive the tax credit, small businesses would have to stop offering abortion coverage.

In 2015 and beyond, the Commissioner can allow larger employers to enter the Exchange, permitting the Stupak amendment to further restrict their ability to offer abortion coverage.

Pro-life proponents may claim that Stupak simply preserves current policy but if they bother to examine the implications of their amendment they would discover that it actually accomplishes their goal of significantly restricting access to abortion.