On a Friday night back in December 2009, Senate Majority Leader Reid was in tense negotiations with then-Senator Ben Nelson of Nebraska, as Reid desperately needed Nelson’s vote to secure Senate passage of ObamaCare. Finally, Nelson had what Politico described as a “breakthrough” that lead to a deal, as Politico reported a few days later. Part of the deal, Politico wrote, was that “people who receive federal subsidies would need to write two separate checks as a way to ensure that none of the federal dollars went toward the abortion premium.”
Six days later, Senator Nelson took to the Senate floor to explain in detail the deal he had negotiated. With respect to the two check requirement, Senator Nelson said: “In the Senate bill, if you are receiving Federal assistance to buy insurance, and if that plan has any abortion coverage, the insurance company must bill you separately, and you must pay separately from your own personal funds–perhaps a credit card transaction, your separate personal check, or automatic withdrawal from your bank account– for that abortion coverage. Now, let me say that again. You have to write two checks: one for the basic policy and one for the additional coverage for abortion. The latter has to be entirely from personal funds.” [155 Cong. Rec. S14134 (Dec. 24, 2009)].
At the time, the Washington Post quoted Cecile Richards, president of the Planned Parenthood Federation of America as saying, “The absurdity of requiring these two separate checks doesn’t accomplish anything toward the supposed goal of segregating federal funds. . . . It just creates additional hoops for insurance companies . . . and more administrative burdens and obstacles for women to get the coverage they need.” Likewise, a NARAL factsheet bemoaned the Nelson language: “Requiring individuals to write two checks in order to purchase coverage that includes a benefit–abortion services . . . is a new, unnecessary hassle. . . . these burdens could severely limit women’s ability to obtain abortion coverage within the exchange.” (Note, an Exchange is a marketplace for the purchase of health insurance. ObamaCare requires an Exchange to be established in every state by 2014).
The ObamaCare statute specifically requires the issuers of Exchange plans that cover abortion to “collect from each enrollee in the plan” a “separate payment” for the type of abortions for which funding is prohibited under the Hyde Amendment (which is all abortions other than in cases of life of the mother, rape, or incest) and a separate payment for all other services. [42 U.S.C. 18023(b)]. These separate payments are then to be deposited into separate accounts.
During the regulatory process, commenters questioned HHS on how this was to be implemented, and according to HHS, the commenters “recommended that HHS clarify . . . whether [Exchange plan] issuers may satisfy the separate payment provision by providing each enrollee with an itemized bill, and whether an enrollee’s coverage would be terminated for failure to comply with the separate payment provision.” Rather than doing so, HHS merely said that the comments would be taken into consideration in any future guidance. [77 Fed. Reg. 18430 (March 27, 2012)].
Now, despite the clear language of the ObamaCare statute, it appears that the separate check requirement is not going to be enforced by the Obama Administration. Gretchen Borchelt, director of state reproductive health policy at the National Women’s Law Center, told the Huffington Post that “we used to talk about it as being two checks that the consumer would have to write because of the segregation requirements, but that’s not the way it’s being implemented.” (Huffington Post, Sept. 3, 2013).
Likewise, a spokeswoman for Rhode Island’s Exchange told PolitiFact Rhode Island that “the customer is not billed a separate fee.” (Politifact, Oct. 2, 2013. The Rhode Island Exchange will handle the billing, not the plan issuers). As PolitiFact notes, “it turns out to be a hidden fee.”
From a pro-life perspective, the most important fact is that massive federal premium subsidies will go to Exchange plans that cover elective abortion (a sharp departure from the longstanding policy of the Hyde Amendment), and every enrollee in the plan will have a portion of the enrollee’s premium placed into a separate account for elective abortions (dubbed the “abortion surcharge”). But this is just one example of how the Obama administration is implementing ObamaCare in a way so as to advance the abortion industry.
Essential Community Providers. ObamaCare regulations require health insurance issuers in an Exchange to ensure “reasonable and timely access” to a “broad range” of Essential Community Providers for low-income individuals in the plan’s service area. Among these Essential Community Providers are clinics that receive Title X family planning funds, such as Planned Parenthood clinics. (Planned Parenthood is the largest provider of abortions in America today). A search of the non-exhaustive list of Essential Community Providers maintained on an HHS’ website reveals 589 Planned Parenthood clinics among the Essential Community Providers.
Not to leave a stone unturned, in October 2011, Planned Parenthood and other abortion advocacy groups, wrote HHS asserting that “we believe that the final rulemaking should include language that clarifies that health plans, Exchanges, and states cannot exclude or discriminate against providers because they provide or refer for comprehensive women’s health services.” Apparently, these groups were concerned that a state might choose to direct women to health care providers that don’t perform abortions. Of course, the Obama Administration addressed their concern. When the Final Rule was issued, it included a new provision that explicitly states that a health plan issuer in an Exchange “may not be prohibited from contracting with any essential community provider.” (45 CFR 155.1050).
Abortion Coverage for Congress. A provision within ObamaCare requires that Members of Congress and certain congressional staff purchase their health plans on the Exchanges, starting January 1, 2014. The Obama Administration writes the regulations implementing this statutory language and in doing so, they propose allowing the government to purchase abortion-covering plans for Members of Congress and their staffs, which is something that no other federal employee is allowed to do.
For most of the past 30 years the “Smith Amendment” has banned the Office of Personnel Management (OPM) from paying any administrative expenses for any plan that includes elective abortion coverage. OPM does not dispute the application of the Smith Amendment to the purchase of Exchange plans by Members of Congress and certain congressional staff. Rather, OPM erroneously asserts that the Smith Amendment prohibits OPM from using appropriated funds to “administer” Exchange plans by administering “the terms of the health benefits plans offered on an Exchange.” This deceptive assertion ignores the plain wording of the Smith Amendment which explicitly prohibits the use of any appropriated federal funds “to pay for . . . the administrative expenses in connection with any health plan . . . which provides any benefits or coverage for abortions.” (emphasis added). It is undeniable that OPM will incur “administrative expenses in connection with” the purchase of Exchange health plans that cover abortion. The Constitution does not grant the President the authority to retroactively rewrite the laws.
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Application Assisters. Planned Parenthood affiliates are being enlisted in various capacities to help consumers select an Exchange health care plan and complete their applications. On August 15, the U.S. Department of Health and Human Services (HHS) announced that Planned Parenthood affiliates in Iowa, Montana, and New Hampshire will be funded as ObamaCare “Navigators.” Their combined funding will total over $655,000. On August 13, the Washington, D.C. health insurance Exchange awarded a $375,000 grant to Planned Parenthood of Metropolitan Washington, D.C. to be an In-Person Assister. It is sadly ironic that some consumers may end up going to affiliates of America’s largest abortion provider for help in purchasing insurance to cover life-preserving treatments.
This is just the beginning. The Obama Administration has three more years to implement ObamaCare.
LifeNews Note: Susan Muskett is the senior legislative counsel for National Right to Life.