Q: What are the facts regarding the new health insurance law’s federal funding for abortion, or lack of it?
A: The law says individuals who get federal subsidy dollars must use their private money to pay for coverage of abortion except in cases of rape, incest or to save the life of the mother. Claims that the new law will lead to a large increase in the number of abortions lack support.
Strictly speaking, the new law does not provide direct federal funding for abortion, except in cases of rape or incest, or to save the life of the mother — the same rules that now apply to Medicaid coverage for low-income persons and to the insurance available to federal workers and military families. In fact, the new law states specifically that federal funds are not to be used for coverage of any other kinds of abortions, and that only premium dollars paid by individuals out of their own pockets may be used to pay for coverage of other kinds of abortions.
These restrictions have draw criticism from groups favoring abortion rights, and NARAL even refused to endorse the bill because of what it called "egregious" restrictions on abortion coverage. But anti-abortion groups also voiced displeasure with the stipulations; the National Right to Life Committee said the new law "will result in federal subsidies for private insurance plans that cover abortion" and amounts to federal support for abortion in other ways as well.
Here we’ll just lay out the facts, and the arguments on each side.
Why this is an issue: The concern that anti-abortion lawmakers had is that the bill (now law) provides subsidies to low- and mid-income persons to help them buy insurance through state-based exchanges. If these individuals were using federal money to buy a plan that covered abortion, then any abortions covered by that plan would be paid for in part with federal funds, lawmakers said.
What the health care law says: To address those concerns, senators adopted a provision saying that any private insurance plans that cover abortion (and are sold through exchanges) must keep federal dollars separate from the private dollars paid by individual policyholders. Those buying plans on the exchange would send in a separate payment to cover abortion services, and coverage for abortions (other than in cases or rape or incest or danger to the mother’s life) would be paid for from a segregated pool of money that contains no federal funds.
Furthermore, the Senate bill — now law — allows states to prohibit policies sold on their exchanges from covering abortions, with the same exceptions. And it requires that at least one plan in state exchanges not include abortion coverage beyond federal limitations.
But lawmakers who oppose abortion, both Republicans and Democrats, said this wasn’t sufficient. The House bill had gone further, saying that insurers participating in the exchanges must offer plans that don’t cover abortions (other than in the limited cases mentioned), and that only those plans can be purchased with the help of federal subsidies. Individuals who received subsidies and wanted to add on a rider only to cover abortion could do so, if private companies offered such a rider, but only with their own personal funds.
What persuaded Democratic Rep. Bart Stupak and other anti-abortion Democrats in the House to vote for the Senate bill was President Obama’s pledge to sign an executive order reaffirming a federal ban on funding of abortion, as stated in the 1976 Hyde Amendment. That executive order, which Obama signed on March 24, also says that the secretary of Health and Human Services and the director of the Office of Management and Budget must come up with guidelines for states to use to determine whether insurance companies are properly following those separation-of-money requirements for plans purchased with the help of subsidies. And the federal officials must come up with those guidelines within 180 days. Individuals won’t start buying insurance through the exchanges until 2014.
Would Abortions Increase?
Beyond the debate over accounting measures, what effect on the number of abortions performed would this law likely have? Would the mere fact that more women of child-bearing age would have insurance coverage mean that there would be more abortions in the U.S.? We find that the evidence does not support such predictions.
The Guttmacher Institute is a respected, nonpartisan group that researches reproductive health. In the institute’s Summer 2009 journal, Guttmacher’s Susan Cohen wrote: "Even taking into account the fact that more women at risk of unintended pregnancy than is now the case would have health insurance if reform succeeds, some of these women would be enrolled in an expanded Medicaid that would not pay for abortion. Others are higher-income women for whom their current lack of coverage is not nearly the impediment as it is for poor women. Therefore, the availability of coverage, while important at the individual level, cannot be expected to increase the overall numbers of abortions more than nominally—if at all."
Figuring out what effect the law might have on abortions would require not just a crystal ball, but a time machine. We have neither (unfortunately).
Here are a few facts we can give you: In the U.S., about 2 percent of women ages 15 to 44 have an abortion each year. The annual number of abortions has been declining in recent years, with 1.21 million abortions performed in 2005, the most recent figures available from the Guttmacher Institute. If the recent trend is a guide, that total is likely lower today.
An estimated 4.8 million women of child-bearing age who are uninsured now are likely to qualify for subsidies under the health care legislation, according to the nonpartisan Kaiser Family Foundation. Another 6.7 million would likely be eligible for Medicaid coverage, which does not and will not cover abortions, except in cases of rape or incest, or endangerment to the life of the mother.
So, at the most 4.8 million women would have health insurance, purchased with the help of federal subsidies, that covers abortion. The number would likely be less than that for a few reasons: Five states — Idaho, Kentucky, Missouri, North Dakota and Oklahoma — already prohibit all private insurance plans from covering abortion (see the KFF report above); the law allows other states to prohibit exchange plans from covering it, if they choose to; and some women could choose a plan that doesn’t cover abortion. Plus, not all of those who qualify for subsidies will take the proper steps to actually receive this money.
Determining how many women might have an abortion that they would not have had if they lacked insurance coverage for it — well, that’s pretty much impossible. Many women already get abortions even though they lack insurance, or their policies don’t cover abortion. The average cost of an abortion in 2005 was $413, and ranged from as little as $90 to a high of $1,800.
Some argue that having health insurance could lead to fewer abortions, not more. That’s because access to health insurance brings access to birth control, which could lead to a decrease in unintended pregnancies. Furthermore, health insurance covers the cost of bearing a child, and the child’s health care expenses. For any women who get abortions out of concern for the medical costs involved in giving birth, insurance could tip the balance against ending the pregnancy.
So argues T.R. Reid, a journalist who has written about health care systems in other countries, in a recent op-ed in the Washington Post: "All the other advanced, free-market democracies provide health-care coverage for everybody. And all of them have lower rates of abortion than does the United States. This is not a coincidence. There’s a direct connection between greater health coverage and lower abortion rates." Reid quoted a Roman Catholic cardinal in England and Wales as telling him: "If that frightened, unemployed 19-year-old knows that she and her child will have access to medical care whenever it’s needed, she’s more likely to carry the baby to term. Isn’t it obvious?"
We can’t say what may happen in the U.S. to the abortion rate once more women get health coverage, and we take no position on the issue one way or another. But claims that the new law will lead to a large increase in the number of abortions are conjecture.
So, too, are claims of what might happen from the other side: Abortion rights advocates say restrictions in the new law could cause private insurance companies to stop covering abortion altogether. NARAL’s president, Nancy Keenan, said that requiring those who get subsidies to write separate checks was an “unacceptable bureaucratic stigmatization [that] could cause insurance carriers to drop abortion coverage, even though more than 85 percent of private plans currently cover this care for women.” We can’t predict the future in this case, either.
Other Funding in the Bill?
The National Right to Life Committee is concerned with more than just the exchange plans purchased with subsidies. It also objects to a provision in the bill that provides $7 billion in funding over five years for community health centers, which were created 45 years ago to provide primary health care in rural and poor communities, places that lack access to doctors. NRLC says this "opens [the] door to direct federal funding of abortion without restriction in 1,250 Community Health Centers." The group says that this funding won’t be part of the annual Department of Health and Human Services appropriations bill, and that the Hyde Amendment restrictions on federal funding of abortion only apply to funds allocated through that appropriations bill.
But the National Association of Community Health Centers says none of the health centers provides abortion services and they have no plans to do so. Furthermore, President Obama specifically addressed the funding for these community centers in his executive order, stating that no federal funds could be used to pay for abortions:
Obama, executive order, signed March 24: Existing law prohibits these centers from using Federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language. Under the Act, the Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers under section 10503 and all other relevant provisions. I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law. Such actions should include, but are not limited to, updating Grant Policy Statements that accompany CHC grants and issuing new interpretive rules.
NRLC counters that the executive order doesn’t fully prohibit federal funding of abortion at these centers because "[t]he president cannot amend a bill by issuing an order, and the federal courts will enforce what the law says."
It is possible that the courts might someday overrule the president’s order; we can’t predict that. But for now, Obama’s executive order carries the force of law. The O’Neill Institute for National and Global Health Law at Georgetown University wrote on its site that this executive order is legal, saying: “While a few Executive Orders, such as President Truman’s order seizing the steel industry, have been struck down by the courts, as long as the President is acting within his constitutional authority as the chief executive of the nation’s executive departments and not acting directly contrary to a federal statute, his orders are not subject to legal challenge. … Despite claims to the contrary, the President’s Executive Order Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act is clearly authorized by the Constitution, and consistent with the Patient Protection and Affordable Care Act itself and existing law and regulations.”
It is true, as some have argued, that a subsequent president can change this executive order by simply issuing a new executive order. But right now, it stands. And anyway, these health centers don’t provide abortion services now and won’t in the future, according to the National Association of Community Health Centers:
NACHC statement: Health Centers funded by Section 330 of the PHS Act (also called Federally-Qualified Health Centers, or FQHCs) do not provide abortions to any of their patients, and we are not aware of any that have ever done so. Health Centers will under all circumstances abide by the law as reaffirmed by the President’s executive order.
Legislative Director Douglas Johnson stated to us that he does not believe the NACHC knows what is happening at its health centers. "The NACHC executives and lobbyists really don’t know, and probably don’t want to know, how many CHCs are involved in abortion," Johnson said. We asked Johnson if he could provide any evidence that abortions are in fact being performed, but he provided none. The only thing NRLC can point to is a Web site of an advocacy group that urges CHCs to start performing abortion procedures.
NRLC has called the health care legislation "the most abortion-expansive piece of legislation ever to reach the floor of the House of Representatives." But the group doesn’t make any predictions of how many more abortions might come about because of the new law. When we pressed Johnson for a figure to back up his "abortion-expansive" claim, he softened his language, saying that "never before had a single bill reached the House floor that had so many different components that would or could expand abortion under federal auspices."
In recent days, we have received a few questions from our readers about an Internet rumor that the law will lead to 400,000 additional abortions. We find that figure to be absurdly improbable — it would require that more than 8 percent of the 4.8 million women of child-bearing age who stand to gain coverage with the help of subsidies would have abortions that they would not have had otherwise — every year.
Where does this number come from? We could only find such a claim in anonymous Internet message boards and blog postings. Some assert that the estimate comes from Planned Parenthood, but when we called that organization, a spokesman told us that wasn’t true. The organization’s position, spokesman Tait Sye told us, is that "expanding access to prevention care, reduces unintended pregnancies and reduces the need for abortion. And this bill does that."
Sye thought the figure may have come from a twisted interpretation of a Guttmacher Institute report. Republican Rep. Michele Bachmann of Minnesota had cited Guttmacher in March, claiming that "if there is taxpayer funding of abortion, there will be 30 percent more abortions." Thirty percent of the 1.2 million abortions performed in 2005 would be 360,000. But Bachmann was referring to a report on what Medicaid recipients would do if that program provided coverage for all abortions. Medicaid rules on abortion funding aren’t going to change under the new health care law, so Bachmann’s claim is irrelevant to the current debate. But even her 30 percent figure in relation to Medicaid is incorrect.
Medicaid coverage is provided by both federal and state funds, and some states — 17 to be exact — use their own funds to subsidize abortion coverage beyond what federal laws allow, to other cases deemed "medically necessary." The Hyde Amendment prohibits federal funding of abortions through Medicaid except in cases of rape, incest or endangerment of the life of the mother. Guttmacher said that if subsidized coverage of abortion for Medicaid recipients were available in all states there would be about a 28 percent increase in the number of abortions among Medicaid recipients in those states that do not subsidize them — not a 28 percent increase in the total number of abortions. As Guttmacher’s Cohen explained in her article, "because relatively few women in any given state are actually enrolled in Medicaid," this would end up being only a 5 percent increase in the total number of abortions in those states. Nationwide, the impact would be even smaller, since "many of the most populous states (such as New York and California) already use their own money to pay for abortion services for poor women." For Medicaid recipients nationwide, the increase would be about 2.5 percent, or 33,000 abortions.
Bachmann’s poor use of statistics inflates that figure 10 times. Plus, she implies that this would be a result of the new health care law, and that’s false. As we said, the new law doesn’t change the Hyde Amendment restrictions on abortion funding through Medicaid.
A fact-check of Bachmann’s claim by the nonprofit journalism site MinnPost.com also cited a New England Journal of Medicine report on what happened regarding the number of abortions in Massachusetts after that state passed health care legislation that extended coverage to nearly all residents, and, like the national law, included an insurance exchange and subsidies to help the uninsured buy coverage. Exchange plans do cover abortion. What happens in Massachusetts may or may not reflect what happens nationally, and not much time has passed since the state implemented its new system in 2006. But so far, the number of abortions decreased by 1.5 percent from 2006 to 2007, the first year the state’s exchange was up and operating. “As of February 2010, more than 439,000 additional people were covered by health insurance, according to the Massachusetts Division of Health Care Finance and Policy, yet the most recent data indicate that the number of abortions in Massachusetts simultaneously reached its lowest level since at least the 1970s," wrote Harvard’s Dr. Patrick Whelan, a pediatric rheumatologist and lead author of the study.
– Lori Robertson
Update, April 2: For readers who wish to delve more deeply into the arguments on this very contentious issue, we offer some additional reading:
NRLC’s March 19 letter to the House of Representatives outlining objections to the Senate health care bill.
NARAL Pro-Choice America’s statement on the health care legislation in the House and Senate
U.S. Conference of Catholic Bishops’ legal analysis of the final legislation
National Organization for Women’s statement criticizing the final legislation
Summary of New Health Reform Law. Kaiser Family Foundation. accessed 1 Apr 2010.
Access to Abortion Coverage and Health Reform. Kaiser Family Foundation. Jan 2010.
Side-by-Side Comparison of Major Health Care Reform Proposals. Kaiser Family Foundation. accessed 1 Apr 2010.
House passes Obama-backed health bill, 219-212. National Right to Life Committee. 21 Mar 2010.
Stupak, Bart. "Why I wrote the ‘Stupak amendment’ and voted for health-care reform." Washington Post. 21 Mar 2010.
Obama, Barack. Executive Order — ENSURING ENFORCEMENT AND IMPLEMENTATION OF ABORTION RESTRICTIONS IN THE PATIENT PROTECTION AND AFFORDABLE CARE ACT. 24 March 2010.
Keenan, Nancy. Statement on Health Reform. NARAL Pro-Choice America. 21 Mar 2010.
Cohen, Susan. "Politics Distorts Facts on Impact of Abortion Coverage." Guttmacher Institute. 5 Aug 2009.
Facts on Induced Abortion in the United States. Guttmacher Institute. Jul 2008.
Reid, T.R. "Universal health care tends to cut the abortion rate." Washington Post. 14 Mar 2010.
Memo. "Senate-passed health bill (H.R. 3590) opens door to direct federal funding of abortion without restriction in 1,250 Community Health Centers." National Right to Life Committee. 18 Mar 2010.
"The Executive Order on Abortion." O’Neill Institute for National and Global Health Law. accessed 1 Apr 2010.
National Association of Community Health Centers statement. Sent to FactCheck.org on 30 Mar 2010.
Perry, Susan. "A closer look at Bachmann’s ’30 percent increase in abortions’ claim." MinnPost.com. 23 Mar 2010.
Whelan, Patrick. "Abortion Rates and Universal Health Care." New England Journal of Medicine. 17 Mar 2010.