Partial Reversal of Obamacare Won’t End Abortion Funding Concerns

National   |   Steven Ertelt   |   Jun 25, 2012   |   12:18PM   |   Washington, DC

With the Supreme Court expected to issue its decision on the Obamacare health care law on Thursday, the question for the pro-life movement is whether the decision will mitigate the concerns about abortion funding.

Democrats in Congress approved the Obamacare law without any language in the legislation preventing abortion funding. Despite claims from pro-life Democrats who voted for the Obamacare bill, the law allows for abortion funding and pro-life groups warned about such abortion funding during the debate leading up to its passage. In the Senate, Democrats turned back the Nelson amendment to stop taxpayer funding of abortions in Obamacare and the final bill Congress approved and President Barack Obama signed never contained any abortion funding limits.

Obama officials rely on the disproved argument that Obamacare, and a subsequent executive order Obama signed related to it, prohibit taxpayer funding of abortions under the law, even though pro-life groups almost unanimously say the bill and the order are not sufficient to stop abortion funding.

The pro-life movement has already worked to stop taxpayer funding of abortions that states attempted to implement under Obamacare.

The Obama administration came under heavy fire from a pro-life group that discovered, in three states, officials had approved paying for abortions under new high risk insurance programs created under the national health care law. The National Right to Life Committee exposed the abortion funding and the Obama administration responded at first by claiming the executive order Obama signed prohibits the funding NRLC uncovered. Then, Obama officials revised the statement to say they promised the high risk insurance programs would not fund abortions in Pennsylvania, New Mexico, Maryland or any other states.

Moreover, lawmakers in Connecticut are making news with their recent determination that elective abortion is an “essential health benefit” and must therefore be covered under all insurance plans developed according to the new guidelines established by Obamacare.

With this all in mind, how the Supreme Court rules would make a huge impact on abortion funding. A full reversal of the Obamacare law would stop what pro-life groups have called the biggest expansion of abortion funding since Roe. But, as David O’Steen, executive director of the National Right to Life Committee, explains, a partial reversal or merely overturning the individual mandate and leaving the remainder of the Obamacare law intact, will not stop the abortion-funding components.

If the Supreme Court strikes down some or all of the challenged provisions, but holds them to be “severable,” meaning that the rest of the Obama Health Care Law can be enforced without the portions held unconstitutional, we must stress that the dangerous abortion and rationing provisions in the law remain intact,” O’Steen explains. “It can only be repealed if the next president and Congress elected are committed to the repeal of the law. Of course, if the Supreme Court upholds the law in its entirety, the need for a Congress and President willing to repeal it will be obvious.

The following is a look at some of the provisions of Obamacare that allow abortion funding and what must be overturned in order for the abortion funding to be struck down:

Taxpayer funding for abortion coverage through the exchange premium assistance credits—complete with an abortion surcharge and secrecy clause. This problem would only be addressed if the premium assistance credits are struck down.

  • · The abortion surcharge and secrecy clause established in Section 1303 were added as the mechanism for abortion funding under the Affordable Care Act. Any subsidized plan that includes abortion will charge a surcharge of at least $1 per person to go into an abortion fund, and insurance companies are only allowed to disclose the surcharge at the time of enrollment. This problem is only addressed if the premium assistance credits are struck down.
  • · Multi-state plans run by the federal Office of Personnel Management and subsidized, in part, by taxpayer subsidies, will still be allowed to cover abortion (except one must not include abortion as required in the ACA). This problem would only be addressed if Court strikes down the multi-state plan option (Section 1334).
  • · Preventive services mandate. This mandate is currently being used to mandate sterilization and contraceptive coverage including the morning-after-pill. In the future it could be used to mandate surgical and RU-486 abortion coverage. This problem would only be addressed if the provision requiring all plans to cover preventive services (Section 2713) is struck down.
  • · Funding for abortion training not excluded from the Teaching Health Graduate Medical Education (THCGME) program. This problem is only addressed if the Court strikes the program. (Section 5508 – Increasing Teaching Capacity.)




  • · Possible future abortion funding through Community Health Centers, High Risk Pools and other directly funded programs. (To date it does not appear that the administration has funded abortion in these programs, and there has not been a legal challenge to this policy, and the policy could be changed by administrative action.) This problem is only addressed if the Court strikes all direct appropriations in the Affordable Care Act. Otherwise, the law will continue to fail to have appropriate statutory safeguards against taxpayer funding for abortion attached.


  • · Potential funding for Planned Parenthood school-based health clinics. Section 4101 establishes grants for establishing school-based health centers. The provision prohibits direct funding for abortion, but funds can flow to abortion providers. This problem is only addressed if the school-based health center program (Section 4101) is struck down.
  • · Lacks strong conscience protections to stop the government from forcing health care entities to participate in abortion. This is only addressed if the entire law is struck down and replaced by a health reform package that includes comprehensive conscience protections.