The Right Thing To Do? HHS Issues Regulations Prohibiting States From Covering Abortion In High Risk Pools

This morning, following GOP allegations that states would be able to use federal dollars to cover none-Hyde abortions in the temporary high risk insurance pool programs, HHS issued regulations prohibiting states from covering the procedure. “The (high-risk pool) program,” the regulation states, “is Federally-created, funded, and administered (whether directly or through contract); it is a temporary Federal insurance program in which the risk is borne by the Federal government up to a fixed appropriation. As such, the services covered by the PCIP program shall not include abortion services except in the case of rape or incest, or where the life of the woman would be endangered.”

The controversy that sparked the new rules originated in a press release from the National Right to Life Committee, which claimed that the Obama Administration “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.” The charge bounced around conservative circles, despite the administration’s swift promise to issue new guidance preventing states from covering abortion services. House Republicans wrote a letter HHS Secretary Kathleen Sebelius asking her “to supply them with the applications from all the states administering their own high-risk pools” and yesterday, 13 Republican Senators penned their own missive urging Sebelius to do what the administration had already promised.

Meanwhile, progressive pro-choice advocates felt betrayed. Since there is no over-arching law that prevents states from using federal dollars to fund abortion services, the administration was not required to alter the state’s proposals. It had already promised to segregate abortion funds within the exchanges and to prohibit community health centers from using federal funds to provide abortion services, but it had said nothing of shielding funds elsewhere — including high risk pools. Writing at RH Reality Check, CAP’s Jessica Arons accused the administration of applying the Stupak amendment to the high risk pools and going beyond the bargain it struck:

It is understandable that the Administration might now feel the need to honor the “spirit” of the compromise that resulted in the Executive Order. But the whole point of the compromise was to preserve the status quo, which included both restricted and unrestricted spheres of abortion funding. Moreover, the terms of the agreement were carefully negotiated. Abortion opponents who participated in the bargaining did not raise concerns about high risk pools or other specific potential sources of federal funding, and they should be able to live with the deal they made.


Indeed, rather than developing a compromise that would have either allowed states to decide whether to cover abortions with federal funding or required them to segregate funding and use private or state money to pay for the abortion services, the administration prohibited abortion coverage almost instantly. White House Office of Health Reform Director Nancy-Ann DeParle insists that “no new ground has been broken” and that “the program’s restriction on abortion coverage is not a precedent for other programs or policies” — and hopefully that’s true. But it’s hard to understand why the administration felt so compelled to make this decision so quickly and reactively. If it was hoping to score points with conservative pro-life voters, then it overestimated the GOP’s willingness to recognize its concessions and may be surprised when Republicans continue to send fundraising letters about the abortion issue.