Will States Be Able To Fund Abortions Through The High Risk Pools?

This afternoon, NPR’s Julie Rovner followed up on NRLC’s claim that federal funds for high-risk insurance pools can be used to pay for non-Hyde abortions in Pennsylvania’s program and received denials from state and federal officials. “[E]lective abortions will NOT be allowed in the new program,” they told her:

Pennsylvania has not signed a contract yet to start operating their Pre-Existing Condition Insurance Plan,” said HHS Spokeswoman Jenny Backus. And when they do, she added, “our contract that states are signing says clearly that we will be issuing guidance on the administration of Pre-Existing Condition Insurance Plan so they know they will have to live by our guidance per the contract” when it comes to abortion coverage.

And that’s no problem, says Rosanne Placey, of the Pennsylvania Department of Insurance. “Very simply, federal law controls. We know that,” she said. “We absolutely do not cover elective abortions.

“We are drawing down federal money. We do that in more that one program,” she said, including Medicaid and the Children’s Health Insurance Programs, which similarly ban abortion. “We understand that.”

But as I pointed out yesterday, the Nelson abortion amendment in the health care law and President Obama’s subsequent executive order place restrictions on federal funding within the exchanges and the community health centers, but says nothing of the moneys appropriated to the temporary high risk pools or other programs like reinsurance for early retirees or the small business tax credits. For instance, consider how Obama’s EO specifically singles out the exchanges and the community health centers, but nothing else:

The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly-created health insurance exchanges….The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014. […]

The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program. Existing law prohibits these centers from using federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language.

In fact, when I spoke to a source in Gov. Ed Rendell’s (D) office, they were surprised to learn that the Hyde restrictions did not apply to the federal funds for high risk pools. “Our high risk proposal and any subsequent contracts must comply with federal law and regulations. So that means that federal law and subsequent regulations would control the high risk plan here. We could not use federal money to cover elective abortions,” Placey also told me in an email. The federal legislative language seems to contradict the state’s interpretation.

Still, given the serious conditions of many of the applicants, the state says it does not expect applicants to need abortion services.


HHS spokeswoman Jenny Backus sent me the following statement, saying that the Secretary will issue new regulations preventing states from using federal high-risk pool dollars to fund abortions:

As is the case with FEHB plans currently, and with the Affordable Care Act and the President’s related Executive Order more generally, in 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. The contracts to operate the Pre-existing Condition Insurance Plan include a requirement to follow all federal laws and guidance.

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