Obamacare SHOP Program May Force Small Businesses to Fund Abortions

National   |   Susan Muskett, J.D.   |   May 9, 2013   |   11:52AM   |   Washington, DC

As business owners familiarize themselves with Obamacare and how it impacts their businesses, there is an important aspect of the new Exchanges with which every pro-life business owner should become familiar.

Before jumping into an Obamacare Small Business Health Options Program (SHOP) Exchange, a pro-life business owner needs to determine whether that particular Exchange will allow the business owner to select the health coverage that he or she will offer to the business’ employees.

If a state’s SHOP Exchange limits the employer’s options to only selecting a level of coverage from which the employees are to choose a health plan (“employee choice”), a pro-life business owner may find that he or she will end up subsidizing employee health plans that cover elective abortion, unless he lives in a state that has enacted an “opt out” law that will prevent Exchange-participating insurance plans from covering abortions. So far, about 20 states have enacted “opt out” laws in various forms. An up-to-date listing is posted on the NRLC website here: www.nrlc.org/AHC/InsuranceCoverageAbortionRegs.html

To give some background, Obamacare requires an Exchange to be established in every state by 2014. Within the Exchanges will be a Small Business Health Options Program (SHOP), which will be a marketplace for employers to purchase health insurance for their employees. Initially, the SHOPs will be limited to businesses with not more than 100 employees, and a state can further limit participation to employers with not more than 50 employees for the first two years.

The SHOPs were promoted as a means of expanding choice and access to health insurance for employers. Employers today choose the health coverage provided to their employees, and may choose one plan for their entire workforce. The plain language of the Obamacare statute continues that option by defining a “qualified employer” to mean “a small employer that elects to make all full-time employees of such employer eligible for one or more qualified health plans [QHP] offered in the small group market through an Exchange that offers qualified health plans.”

Yet, the regulation implementing Obamacare allows a state SHOP Exchange to limit an employer’s options to the single method of “employee choice” whereby the employer picks the level of coverage and the company’s employees choose among the plans at that level. By 2015 all SHOP Exchanges must provide “premium aggregation” services whereby the Exchange bills and collects the aggregated premiums (both employer and employee contributions) from each employer and distributes them to the appropriate qualified health plans chosen by the employees.

The state of California has chosen to limit employer participation in their state SHOP Exchange to this “employee choice” method from the inception. (In December 2012, HHS proposed limiting the Federally-facilitated SHOPs to only the “employee choice” method, but then in March of this year HHS proposed that as a “transition policy” employers will choose one plan for the employer’s employees.)

Abortion advocacy groups have urged the Obama administration to limit the Exchanges to the “employee choice” method, insisting that no exception be made to allow an employer to limit the choices available to his or her employees. On October 4, 2010, the National Abortion Federation, NARAL, Planned Parenthood, Center for Reproductive Rights, ACLU, and others wrote HHS asserting that “[s]ection 1312(a)(2) makes clear that, while a qualified employer participating in an Exchange may determine the level of coverage to be made available to employees, it is the employee’s decision as to which QHP he or she chooses within that level. It would be in direct violation of the statute, as well as the core purpose of the provision, if any exception were made that would allow a participating employer to limit the choices available to his or her employees on any basis. This principle of employee choice is a critical one that should be maintained and emphasized.”

If a pro-life business owner wants to participate in a SHOP Exchange, he or she shouldn’t be forced to pay for employee health coverage that includes elective abortion.



As mentioned above, about 20 states have opted to restrict abortion insurance coverage in Exchange health plans. But a pro-life business owner in a state that has not enacted such an opt-out law would be well-advised to carefully review his or her options before leaping into an Obamacare SHOP Exchange in his or her state.

LifeNews Note: Susan Muskett is the senior legislative counsel for National Right to Life.