Abortion and Birth Control in Obamacare: Part I

If implementation of the Patient Protection and Affordable Care Act (PPACA) stays on schedule, insurance exchanges will be open for business on October 1, 2013. As PPACA (otherwise known as Obamacare) expands and impacts our daily lives, it is important to be educated on the pro-life concerns it raises. LLDF continues to educate on this topic (for example, see the Winter 2013 issue of Lifeline which featured an article titled Obamacare and the Real War on Women).

The following is a two-part series in which we will explore Obamacare further and expose how it funds abortion and contraceptives as well as how it covertly expands access to both.

There are several ways that Obamacare expands the availability of abortion and birth control. These results are apparent from the text of Obamacare and from the regulations that enforce the law and have been acknowledged by legal experts and lawmakers. For example, after Obamacare was signed into law, the U.S. House of Representatives has several times voted to repeal it. Congressional findings have included the expansion of abortion as a reason to repeal the law:

(7) While President Obama promised that nothing in the law would fund elective abortion, the law expands the role of the Federal Government in funding and facilitating abortion and plans that cover abortion. The law appropriates billions of dollars in new funding without explicitly prohibiting the use of these funds for abortion, and it provides Federal subsidies for health plans covering elective abortions. Moreover, the law effectively forces millions of individuals to personally pay a separate abortion premium in violation of their sincerely held religious, ethical, or moral beliefs.

(8) Until enactment of the law, the Federal Government has not sought to impose specific coverage or care requirements that infringe on the rights of conscience of insurers, purchasers of insurance, plan sponsors, beneficiaries, and other stake holders, such as individual or institutional health care providers. The law creates a new nationwide requirement for health plans to cover ‘‘essential health benefits’’ and ‘‘preventive services”, but does not allow stakeholders to opt out of covering items or services to which they have a religious or moral objection, in violation of the Religious Freedom Restoration Act (Public Law 103–141). By creating new barriers to health insurance and causing the loss of existing insurance arrangements, these inflexible mandates jeopardize the ability of institutions and individuals to exercise their rights of conscience and their ability to freely participate in the health insurance and health care marketplace.

Congressional findings, items 7 and 8.

The following discussion will expand upon the above findings, highlighting the funding of abortion and birth control under Obamacare, and the increased access to abortion and birth control that will result from Obamacare.

I. Forced Funding of Abortion and Birth Control

“Abortion Premium”:  As part of its insurance exchange framework, Obamacare mandates that certain plans fund abortion through an “abortion premium” charge. Under this provision, every federally subsidized plan “shall” obtain a premium payment from every enrollee to be used exclusively for others’ elective abortions. See 42 USCS § 18023(b)(2)(B).  Known as the “Nelson Compromise,” this mandate cleverly avoids direct payment for elective abortions with tax money, allowing proponents of Obamacare to argue the Act does not fund abortion. Yet it actually does something worse by imposing this mandatory out-of-pocket premium which will fund, exclusively, elective abortions.

LLDF, along with several other legal organizations, submitted an amicus brief on this topic in the multi-state challenge to Obamacare, Florida v. U.S. Dept. HHS, 648 F.3d 1235 (11th Cir. 2011)(brief as filed available here). The brief was submitted on behalf of six national organizations composed of physicians and other healthcare professionals whose interest is in serving every member of human family, including unborn children. As the brief points out, this “abortion premium mandate,” compels citizens who purchase federally-approved health insurance plans to pay a separate, out-of-pocket premium to fund the elective abortions.  Not only does the mandate not allow an enrollee in a federally subsidized plan the ability to opt-out, but any enrollee refusing to pay the out-of-pocket expense does so under threat of penalty for non-payment of the premium.  (See 42 USCS § 18023).

The “abortion-premium” mandate will result in significant additional funding being made available for abortions—without restriction—as a direct result of a specific provision in Obamacare. More information and details can be found in the following articles:

“Contraception Mandate”: A regulation put forward by the U.S. Department of Health and Human Services to implement Obamacare requires insurers to provide coverage of contraceptives at no cost to the insured as a matter of “preventative” health care. The required coverage includes contraceptives that act as abortifacients (Plan-B, ella and others). LLDF and the Arizona-based Bioethics Defense Fund (BDF) have submitted numerous amicus briefs in lawsuits challenging this “contraceptive mandate.” Most of the litigation surrounding this issue has focused on individual employer rights to freedom of religion—which is of significant concern to employers who wish to live consistent with their faith. The briefs LLDF and BFD have filed focus on the evidence of health risks associated with contraceptives, making the argument that because of these well-established health risks, the government has no significant interest in forcing religious employers to pay for these “services.”

But it is important to note that in addition to the infringement of civil rights that this mandate involves, an even greater tragedy is that the contraception mandate will result in significantly increased loss of life through early abortion. More details regarding the HHS Mandate can be found here, and legal arguments can be found here. Part II of the brief discusses the harm to human life caused by the type of contraceptives included in the mandate.

The comments submitted by the U.S. Council of Catholic Bishops regarding proposed changes to the mandate provide excellent background material.

Stay tuned for part two of this article with more on how Obamacare will increase abortion and birth control.