How Obamacare could expand abortion

Mary Harned Staff Counsel, Americans United for Life
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Think Obamacare prohibits taxpayer funding for abortion? Think again. One of the most confusing and hotly debated aspects of Obamacare is how the law expands federal abortion policy. Misleading statements by President Obama and members of his administration have added to the confusion. As a result, many citizens have been led to believe that the Hyde Amendment — which prohibits the use of taxpayer funds to pay for abortion — applies to Obamacare. This is simply not true.

The Hyde Amendment — a special provision prohibiting the use of federal funds appropriated through the Labor, Health and Human Services (LHHS) appropriations bill to pay for abortions or abortion coverage — and other similar federal prohibitions on abortion funding only apply to specific funding streams, not to all federal funding.

For the administration to imply that taxpayer dollars cannot pay for abortions through Obamacare because of Hyde’s existence is both disingenuous and deceptive.

Congress should have included a comprehensive prohibition on federal funding for abortion and abortion coverage throughout Obamacare. In fact, Congress should enact a law now making the Hyde Amendment permanent and applying it to all federal programs. The absence of such a law opens wide the door for taxpayer funding of abortion.

It is important to understand that the Hyde Amendment has two important parts, neither of which Obamacare contains.

First, the Hyde Amendment prohibits the use of federal LHHS funds to pay for abortions directly. Second, it prohibits the use of federal LHHS funds to pay for insurance plans that cover abortions. These funds cannot be used to subsidize insurance plans that cover abortion, regardless of whether the plans pay for abortions directly. Both prohibitions include exceptions when pregnancies result from rape, incest, or threaten the life of the mother.

Obamacare does not contain either one of the Hyde Amendment’s prohibitions.

That means Obamacare funds — taxpayer dollars — could be used to pay for abortion directly. Obamacare also explicitly permits federal tax subsidies to pay for the premiums for certain qualified individuals to purchase insurance plans that cover abortion, through their new state health insurance exchanges. These federal subsidies are taxpayer dollars that go directly from the Treasury to pay for the insurance plan covering abortion.

In his March 24, 2010 executive order relating to federal funding for abortion — which was needed to pass Obamacare in the House — President Obama said his policy was consistent “with longstanding restrictions on the use of federal funds for abortion.” In essence, President Obama maintained that Obamacare and the executive order are consistent with the Hyde Amendment and similar laws.

In truth, the language of the executive order did not (and arguably could not) “cure” the major abortion-funding flaw in the Affordable Care Act — the absence of a comprehensive prohibition on the use of federal funds for abortions and abortion coverage.

Abortion rights advocates have noted the order’s limited scope. The Center for Reproductive Rights wrote in a July 19, 2010 statement that the executive order “utterly failed to comprehensively apply a prohibition on the use of federal funds for abortions to the law.”

It only attempted to address two issues.

First, it closed one of the funding loopholes in the law by applying the Hyde Amendment only to federal funding for Community Health Centers. However, executive orders can be changed or eliminated more easily than statutes, and an executive order has the force of law only when it is consistent with statutory law. There is not a provision in Obamacare upon which the executive order is logically based.

Second, while the order mentions the exchanges, it fails to apply Hyde to them. It provides guidelines for “strict compliance” with the provisions in Obamacare that address how federal subsidies are handled in plans that cover abortions in the exchanges. However, these guidelines do not prevent federal subsidies from going to plans that cover abortions. This directly violates the federal principles embodied in the Hyde Amendment and other federal laws.

Congress was given the chance to apply Hyde’s abortion funding restrictions to Obamacare, but it intentionally did not. Despite intense pressure from pro-life lawmakers and organizations, only more limited funding restrictions were adopted by Congress (and later by the Obama Administration) to some Obamacare funds.

Not only did Congress refuse to apply the Hyde Amendment to Obamacare, it opened the door to direct funding for abortion should Hyde ever fall, setting up Hyde as a target for abortion advocates. That was no accident.

The law’s prohibition on the use of taxpayer dollars to directly pay for abortions in exchange plans depends on the continued independent existence of the Hyde Amendment. If Congress ever fails to add the Hyde Amendment to the yearly LHHS Appropriations Bill — an outcome the abortion lobby fights for — insurance plans that cover abortions within state exchanges will be permitted to use federal subsidies to pay for abortions directly.

Pro-life members of Congress are fighting to apply a Hyde-like abortion funding prohibition to all federal funds, including Obamacare funding, but are being blocked by the pro-abortion majority in the Senate and President Obama. Without Hyde-like protection, and the vigilance of pro-life Americans, our tax dollars will continue to be entangled in funding the abortion industry.

Mary Harned is an attorney with Americans United for Life.