Three one-year anniversaries for the Patient Protection and Affordable Care Act (PPACA) fall this month: the Act’s passage in Congress (March 21), President Obama’s signing it into law (March 23), and President Obama’s issuance of his Executive Order (March 24). The House of Representatives repudiated the PPACA ten months after its enactment, but a vote to repeal failed in the Senate. Meanwhile, the latest poll shows ever-growing public opposition to the PPACA now at 56%, up from 49% one year ago.
Among the many serious defects of the PPACA is the absence of any comprehensive prohibition against the use of federal funds for abortions. The Executive Order addresses only two provisions in the law: it requires “strict compliance” with the law’s accounting gimmick for the new health insurance exchanges (set to begin in 2014) and purports to prohibit abortion funding by the additional funding for Community Health Centers. HHS has failed to issue regulations restricting abortion for Community Health Centers.
However, this opens possibilities, which were realized during this past year, to fund abortions through other funding streams and various loopholes. Furthermore, the PPACA creates new broad mandate authorities for federal agencies and officials, which have been used to advance abortion.
Consider these actions during the last year:
· The Department of Health and Human Services approved plans by three states to use federal funds directly for elective abortion in their “high-risk” pools, under the Pre-existing Condition Insurance Plan (PCIP), part of the new health care law. Only after pro-life groups complained did the administration enact a rule against abortion funding through these pools. There was no explicit prohibition against funding abortions through the PCIP either in the PPACA or in the EO.
· The Institute of Medicine, charged with making recommendations to HHS as to what should be covered under the PPACA’s mandated “preventive care for women,” sought input from groups that take a public stance in favor of abortion, most of whom urged the IOM to include all FDA approved contraceptives in the preventive care mandate. This would include so-called “emergency contraceptives,” including the recently FDA approved drug ella, which can kill an embryo even after implantation. If “FDA- approved contraceptives” is included in the definition of “preventive care,” Americans will be forced to subsidize these abortion-causing drugs with their insurance premiums.
· The Protect Life Act would amend the PPACA to prohibit federal funds authorized under the law from being used to pay for abortions or insurance plans that cover abortions. It also would prevent any mandate authorities from being used to force insurance plans to cover abortions.
· The No Taxpayer Funding of Abortion Act is even more comprehensive. It would establish a permanent government-wide prohibition on federal funding for abortions and abortion coverage, replacing yearly battles to enact a series of abortion funding restrictions (such as appropriations riders), regulations that may be overturned by new administrations, and executive orders that exist at the will of the president.
· The Respect for Rights of Conscience Act would amend the PPACA to protect health care stakeholders with conscience objections to specific services, among other things. Doing so, the Act protects against the “preventive care” mandate being used to force all insurance plans to cover abortion-inducing drugs, such as ella that are labeled as contraception. However, it should be noted that PPACA funds can still be used for ella and further legislative action would be necessary. Because ella was approved as “contraception”, it is eligible for federal funds, even where abortion is explicitly excluded.
 “FDA Approves ella Tablets for Prescription Emergency Contraception,” FDA News Release, August 13, 2010, available at https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm222428.htm