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Boehner And Anti-Abortion Groups Reignite Abortion Debate Within Health Law

Late last month, House Minority Leader John Boehner (R-OH) announced that the GOP would try to rally social conservatives ahead of the midterm elections by introducing legislation that would permanently “bar Congress from using taxpayer money to support abortions or abortion coverage” by codifying the so-called Hyde amendment. Today, Boehner hinted that he will re-open the abortion debate within the context of health care reform.

Boehner tweeted a press release from the National Right to Life Committee which claims that “The Obama Administration will give Pennsylvania $160 million to set up a new “high-risk” insurance program…and has quietly approved a plan submitted by an appointee of Governor Edward Rendell (D) under which the new program will cover any abortion that is legal in Pennsylvania”:

Examination of the detailed Pennsylvania plan (posted here:www.nrlc.org/AHC/PennsylvaniaHighRiskPoolPlan.pdf), reveals that the “much more” will include insurance coverage of any legal abortion.  The section on abortion (see page 14) asserts that “elective abortions are not covered.” However, that statement proves to be a red herring, because the operative language does not define “elective.” Rather, the proposal specifies that the coverage “includes only abortions and contraceptives that satisfy the requirements of” several specific statutes, the most pertinent of which is 18 Pa. C.S. § 3204, which says that an abortion is legal in Pennsylvania (consistent with Roe v. Wade) if a single physician believes that it is “necessary” based on “all factors (physical, emotional, psychological, familial and the woman’s age) relevant to the well-being of the woman.” Indeed, the cited statute provides only a single circumstance in which an abortion prior to 24 weeks is NOT permitted under the Pennsylvania statute: “No abortion which is sought solely because of the sex of the unborn child shall be deemed a necessary abortion.”

Indeed, the Nelson amendment in the health care law and President Obama’s subsequent executive order places 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.

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The law gives the states the necessary flexibility to appropriate those dollars as they see fit, so long as it comports with state and federal law. Pro-choice advocates disagree with the notion that states should be able to deny fundamental reproductive right to women, but by protesting the state-based nature of these provisions, anti-abortion advocates are also changing their argument. Throughout the health care debate, they’ve maintained that abortion should be left to the states and have insisted that states be given the option to eliminate abortion from the exchanges, as some have done. Now that progressive states have chosen to cover full reproductive benefits, however, those same “state rights” voices are crying foul and claiming that the federal government should determine how abortion funds are or not spent.

Of course, whether or not the enrollees in high risk insurance pools will need abortion coverage is another matter altogether. The typical high risk pool beneficiary is older and sicker and most health experts I’ve spoken to don’t expect abortion to become a very popular benefit.