Obama Admin May Face Lawsuit Over Illegal Funding of Abortions for Congress

National   |   Steven Ertelt   |   Oct 1, 2013   |   11:29AM   |   Washington, DC

The Obama administration may face a lawsuit over its decision to break current federal law to pay for abortions for members of Congress and Congressional staff via Obamacare.

As LifeNews reported, the Office of Personnel Management announced it will not comply with the Smith Amendment that bans taxpayer-funding of abortions in federal employee health care plans. Under the amendment, which is existing law, federal funds may not be used to pay for abortions via federally-funded health insurance for congressional staff and Members.

The Obama administration agency released a final rule regarding management of health insurance benefits for members of Congress and Congressional staff who will be entering the exchanges established under the Affordable Care Act (Obamacare). The final rule indicates that OPM does not intend to comply with the pro-life Smith amendment as it administers health insurance benefits for this group of federal employees.

In an interview with the Washington Times, Congressman Chris Smith, a New Jersey Republican, says the administration may face a lawsuit:

Rep. Christopher H. Smith, New Jersey Republican, said OPM is violating a law he wrote in 1983 that prohibits OPM from paying any expenses to administer plans that cover abortion, except in cases of rape or incest or when the mother’s life is in danger.

“You can’t break the law, Mr. President, and just issue a final rule as if somehow you’re comporting with the law,” Mr. Smith told The Washington Times. “We don’t want to subsidize abortion on demand, and the public is absolutely with us.”

Democrats applauded the ruling, saying it ensures equal access to abortions.

“This decision honors the spirit of the Affordable Care Act, which is significantly improving health care for women,” Reps. Rosa L. DeLauro of Connecticut and Louise McIntosh Slaughter of New York said in a joint statement. “All women, no matter where they work, deserve health care coverage that can meet their individual health care needs.”

Mr. Smith said his law, which has been in effect for all but two years since 1983, has a long legislative history that is very clear, and he said the Obama administration ignored it.

He said he has asked lawyers in the House to see whether a lawsuit could be filed and that pro-life groups also are taking a look.



Some 84 Members of Congress sent a letter to OPM Acting Director Elaine Kaplan earlier this month.  The letter pointed out that the Smith amendment (first offered in 1983 by Rep. Chris Smith, R-NJ) is annually attached to the Financial Services Appropriations bill and governs activities by OPM employees. Specifically the Smith amendment states that no funds may be used to “pay for an abortion, or the administrative expenses in connection with any health plan under the Federal employees health benefits program which provides any benefits or coverage for abortions.”

The Member letter specifies that collecting and disburses premiums for health plans that include elective abortion are administrative activities and would constitute a clear violation of the Smith amendment.  While all insurance plans for Federal employees under the FEHBP exclude elective abortion, the Obamacare law deviated from this longstanding policy and explicitly allowed plans on the new health care exchanges to include coverage for all abortion.

In the final rule, OPM specifies that, despite the Smith amendment, the Obama administration will carry out administrative tasks in conjunction with health plans that include elective abortion.

They justify such action by saying that OPM does not “administer the terms of the health benefits plans offered on an Exchange.”  Even though the Smith amendment is in no way limited to administration of the “terms” of a plan, OPM appears to be arbitrarily narrowing the Smith amendment without Congressional approval to do so.

The portion of the rule related to the Obama administration breaking federal law reads:

Current law prohibits the use of Federal funds to pay for abortions, except in the case of rape, incest, or when the life of the woman is endangered, and the Smith Amendment in particular makes no funds available “to pay for abortions or administrative expenses in connections with health plans under the FEHBP which provides any benefits or coverage for abortions.” Neither the proposed nor final regulation alters these prohibitions. Under OPM’s final rule, no Federal funds, including administrative funds, will be used to cover abortions or administer plans that cover abortions. Unlike the health plans for which OPM contracts pursuant to 5 U.S.C. 8902, 8903 and 8903a, OPM does not administer the terms of the health benefits plans offered on an Exchange. Consequently, while plans with such coverage may be offered on an Exchange, OPM can and will take appropriate administrative steps to ensure that the cost of any such coverage purchased by a Member of Congress or a congressional staffer from a designated SHOP is accounted for and paid by the individual rather than from the Government contribution, consistent with the general prohibition on Federal funds being used for this purpose.

The National Right to Life Committee previously suggested it was concerned the Obama administration would break the law.