30 States Have No Opt-Out Laws Stopping Abortion Funding Under Obamacare

National   |   William Saunders and Mary Harned   |   Jul 5, 2013   |   9:50AM   |   Washington, DC

Every Fourth of July, we commemorate the day that our country declared independence and began her quest to become a unique nation—one where personal freedoms are honored and government intrusion is limited.    We have had victories in this pursuit, but we have also had setbacks, perhaps none as great recently as the 2010 enactment of the Affordable Care Act (ACA).

We are only beginning to see the impositions that this law will place on the rights and consciences of Americans; however, as we draw near to deadline for the implementation of the health insurance exchanges in every state, an update is warranted.

Americans United for Life and other pro-life organizations have warned throughout the debate over—and the implementation of—the ACA that the law is riddled with anti-life provisions[1] that will directly infringe on the lives of Americans.

Several of the anti-life provisions in the ACA are associated with the establishment of new health insurance exchanges in every state—marketplaces where eligible individuals can purportedly compare and select among insurance plans offered by participating private issuers of health coverage.

Enrollment in the exchanges is to begin on October 1, 2013, and the exchanges are to offer health insurance coverage to an estimated 7 million individuals starting on January 1, 2014 (increasing to about 24 million by 2022).[2]  Thirty-four states have elected to not set up their own exchanges; therefore, the Centers for Medicare & Medicaid Services (CMS) will operate the exchanges in those states.

States must also establish Small Business Health Options Programs (SHOP), which are exchanges where small employers can shop for, and purchase, health coverage for their employees. An additional 2 million individuals are estimated to be enrolled in employer-based coverage through SHOPs by 2014, increasing to about 4 million by 2022.[3]  CMS will establish SHOPs in 33 states that have chosen not to do so.

Under the ACA, health plans that provide abortion coverage are permitted to participate in the state exchanges, including the SHOPs, and those plans are permitted to obtain federal subsidies.[4] While states are allowed to enact laws “opting out” of permitting insurance plans that cover abortions to participate in their exchanges, many states are unable or unwilling to do so.  To date, only 20 states have enacted an opt-out law, citizens.

Americans in states without opt-out laws who are enrolled through an exchange in insurance plans that cover abortion—even if their enrollment is inadvertent or as a consequence of their employment— will be required to pay an “abortion premium” that will be used exclusively to pay for abortions.

This “abortion premium mandate,” particularly when paired with the forced purchase of insurance required by the ACA’s “individual mandate,” directly violates the conscience and free exercise rights of millions of Americans by imposing an unconstitutional burden on them within the private insurance marketplace.

In fact, the prospect that Americans can avoid insurance plans that include abortion coverage, and thereby avoid paying the “abortion premium,” is growing dimmer by the day.

The Government Accountability Office confirms that the implementation of exchanges across the country is behind schedule, and a critical provision that was planned to provide “choice” to consumers has been delayed.  It was intended that small employers should have the ability to offer multiple plans from more than one issuer of health coverage to their employees through a SHOP, and SHOPS were supposed to have the capacity to allow this beginning in 2014.

However, under a final administrative rule issued in June 2013, SHOPs will not be required to have this capacity until 2015.[5]  In fact, while states can voluntarily offer this option in 2014, federally facilitated exchanges will not.

What does this mean?  It means that individuals who work for small businesses that shop for insurance in an exchange in at least 33 states will only have one health insurance option—an option that may include abortion coverage, forcing those individuals to pay the separate abortion premium.  In some state exchanges, every insurance plan will cover abortion.

It gets even worse.  As a portent of things to come, in Washington, D.C. and Vermont, small businesses will be required to purchase insurance for their employees through the SHOP—in fact, insurance companies cannot offer insurance plans to them outside of the exchange—unless they fall within the ACA’s narrow grandfather provision.  Pro-life employers will have no choice but to choose a plan for their employees offered through the SHOP exchange—even if it includes abortion coverage and will then require employees to pay the abortion premium.

Nancy Pelosi once said that Congress needed to “pass the [ACA] so that [Americans] can find out what is in it.”  The more we learn about what’s in the ACA, and how those provisions are being implemented, the clearer it is that this law is not something to be celebrated this Fourth of July.




[1] For an overview of life-related concerns in the Affordable Care Act, please visit www.realhealthcarerespectslife.com.

[2] See GAO-13-601:  Federally Facilitated Health Insurance Exchanges (June 19, 2013) (citing Congressional Budget Office, Effects on Health Insurance and the Federal Budget for the Insurance Coverage Provisions in the Affordable Care Act—May 2013 Baseline (Washington, D.C.:  May 14, 2013).

[3] See GAO-13-614:  Small Business health Insurance Exchanges (June 19, 2013) (citing Congressional Budget Office, Effects on Health Insurance and the Federal Budget for the Insurance Coverage Provisions in the Affordable Care Act—May 2013 Baseline (Washington, D.C.:  May 14, 2013).

[4] Advance payment of premium tax credits and cost-sharing subsidies that will be provided to certain individuals and families with incomes between 100 percent and 400 percent of the federal poverty level to assist them with purchasing insurance through an exchange.

[5] GAO-13-614, p. 7.