HHS Says Abortion Won’t Be Funded In High Risk Insurance Pools, Republicans Ask For Further Clarification

Yesterday, in response to allegations that states would be able to use federal dollars to cover none-Hyde abortions in the temporary high risk insurance pool programs, HHS spokesperson Jenny Backus issued a statement clarifying that states would have to follow new federal guidelines issued by the Secretary. “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, [the so-called Hyde standard]” she said. “We will reiterate this policy in guidance to those running the Pre-Existing Condition Insurance Plan at both the state and federal levels.”

But seeing the debate as an opportunity to build on their ‘broken promises of reform’ narrative and motivate social conservatives, House Republicans are now asking the Secretary “to supply them with the applications from all the states administering their own high-risk pools and the guidelines for the federal plan to determine if the programs will allow federal funding of abortions“:

Both of these cases will result in funding for abortion in direct contradiction of longstanding U.S. policy against federal funding of abortion or abortion coverage. Unfortunately, statutory language prohibiting such funding was not included in the recently enacted Patient Protection and Affordable Care Act (PPACA). Instead of a statutory prohibition, the President assured Members of Congress by signing an Executive Order that claimed to ensure that abortion would not be funded under the authorities and appropriations provided in PPACA. However, further details regarding how this assurance would be implemented and enforced have not been released.

HHS’ clarification ensures that federal dollars won’t be used to cover abortions beyond Hyde, but I’m not sure that a pro-choice President or Democrats are under some knee jerk obligation to restrict the use of federal funds for legal abortions. After all, the federal subsidy for employer based coverage does not stipulate that employers cannot provide abortion in instances other than rape or incest, or where the life of the woman is endangered and legislators typically make a decision about abortion funding with every new program.

PPACA stipulates that federal tax credits, cost sharing subsidies, and community health center funds cannot be used to fund none-Hyde abortions, but says nothing about high risk insurance pools, small business tax credits or other federal dollars. It leaves all of those decisions to the discretion of the Secretary, who could have in this case: a) approved the pools with abortion coverage since no law bars the use of federal funds for abortion in high risk pools, b) allowed states to decide whether to cover abortion in high risk pools but required them to segregate funding and use private or state money to pay for the abortion services. Option B would have brought the high-risk insurance pools in line with the standard established for the exchanges.

Sebelius decided to pivot back to the FEHB standard to live up to the principle of Obama’s executive order and the entire Stupak/Nelson abortion debate. The administration also seemed to make a political calculation. It assumed that the push back from anti-choice groups will be far more damaging than the points they’ll score with the pro-choice base. The temporary high risk pool program is also likely to attract an older and sicker population that hopefully won’t need abortion services anyway.

But what’s frustrating is that the administration is acting like the no-abortion-beyond-Hyde standard is the status quo in every instance, when in fact it’s not. The government still has the authority to fund abortions beyond Hyde Hyde in any program that does not carry an explicit restriction and one would think that pro-choice Democrats would want to exercise that right.