How Conservatives’ Attacks On Obamacare Could Accidentally End Up Expanding Abortion Access


obamacareThe latest media reports about the health reform law proclaim that the “abortion complication” is the Obama administration’s latest headache. That’s referring to the fact that a recent tweak to the health reform law may extend abortion coverage to members of Congress and their staffers, even though federal workers currently can’t get that coverage under their government-sponsored insurance plans. Abortion opponents are calling on the government to fix the discrepancy.

“It’s a radical deviation and departure from current federal law,” Rep. Chris Smith (R-NJ) said of the potentially expanded coverage for reproductive health care. He referred to the possibility that lawmakers and their staff may be eligible for insurance coverage for abortion as a “scheme” to get the government to fund the procedure.

If it’s a scheme, it’s one that conservatives actually created themselves. Here’s the background on the current controversy, which wouldn’t be an issue in the first place if not for two Republican lawmakers:

Back before the health reform law passed, a Republican lawmaker tacked on an amendment designed to embarrass Democrats. Sen. Chuck Grassley (R-IA), an ardent Obamacare opponent, pulled a political stunt during the negotiations on health reform. He offered up an amendment requiring federal employees to drop the health coverage that they currently get under the Federal Health Benefits Program (FEHB) and enroll in Obamacare’s state-level insurance marketplaces instead. Grassley claimed he was just trying to make things fair, ensuring that members of Congress would be dependent on the same coverage that average Americans get. Grassley assumed Democrats would vote down the amendment, and then they’d have to explain to the American public why Obamacare’s marketplaces weren’t good enough for them.

Democrats called his bluff, and the amendment made it into Obamacare. When Democrats didn’t take the bait, Grassley’s amendment was added to page 157 of the final health law. But it created confusion when it became time to implement it, since the insurance marketplaces were never intended for people who already have access to good insurance coverage through their employer. The issue became somewhat of a manufactured scandal this spring, as media outlets wondered if Congress was trying to “exempt itself’ from Obamacare. In reality, the Office of Personnel Management (OPM) was simply working on a policy fix to Grassley’s unnecessary amendment, which threw a wrench into the way that the health reform’s coverage was originally structured.

The Obama administration recently issued a new rule to address the confusion. There are currently about eight million federal workers enrolled in FEHB, and the administration needed to figure out what was going to happen to them under Obamacare. At the beginning of this month, the OPM clarified that, despite the confusion over the implications of Grassley’s amendment, the federal government will be able to continue paying its share of employees’ premium costs. That eased some fears that kicking federal workers off their existing health plans would make it too expensive for them to afford coverage. But it didn’t explicitly address abortion coverage.

Under a different GOP-sponsored amendment, federal employees are specifically barred from choosing health plans that cover abortion. For nearly 30 years, anti-choice lawmakers have attached riders to appropriations bills to ban federal employees’ insurance plans from covering abortion. (The current anti-abortion amendment was authored by Rep. Smith, which is why he thinks this issue is a “scheme” to restore that coverage.) Right now, OPM contracts with outside insurers to offer a range of plans that federal employees can choose between. But under Smith’s amendment, none of them can include abortion coverage.

But as it stands now, members of Congress and their staff members may have the option of getting abortion coverage under Obamacare. If federal employees are now required to purchase their health insurance in Obamacare’s marketplaces, they may end up with a plan that includes abortion coverage. That’s because Obamacare leaves that type of coverage up to each state to determine. Many states have taken it upon themselves to bar the new plans on the upcoming marketplaces from covering abortion, but others haven’t. So it’s possible that, since Grassley’s amendment forces lawmakers and their staff out of their FEHB coverage and into the marketplaces, they’ll have a new opportunity to buy a plan that includes this type of coverage. That’s why Republicans are so concerned — it contradicts Smith’s amendment.

Even under Obamacare’s new plans, federal money doesn’t actually go toward abortion services. The federal government isn’t allowed to fund abortion (because of yet another Republican amendment on the issue). But that’s not an issue when it comes to Obamacare. The federal health law already ensures that the insurers offering abortion coverage on the marketplace are separating out federal money so it doesn’t go toward that type of reproductive care. The attorneys for the National Women’s Law Center say that the current outrage is overblown, since federal money won’t go toward abortion even if federal employees have health plans that cover it.

Nobody knows what happens now. So how is the government going to reconcile Grassley’s amendment with Smith’s amendment? They’re not sure. “This goes into a legal thicket the complexity of which I can’t begin to fathom,” Walton Francis, the lead author of an annual guide to federal health benefits, told the Associated Press. “It would take lawyers hours to decipher the interrelationship between these statutes, and they would probably come to different conclusions.” But it’s worth a reminder that no one would be in this mess if the health law had proceeded as planned for members of Congress’ coverage, rather than forcing through a symbolic amendment that’s creating nothing but administrative messes. Of course, if anti-choice lawmakers would stop placing restrictions on how people are allowed to pay for their own reproductive care, that would help too.