Anti-abortion advocates are hopeful that the standoff in Congress over the future of Obamacare will enable Republicans to achieve the long-term goal of preventing federally subsidized insurance plans from covering abortion services.
Republicans and Democrats are at a standstill as to whether a bill to reopen the federal government will involve some sort of plan to extend the enhanced premium tax credits for private Obamacare marketplace exchange health insurance plans set to expire at the end of the year.
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More than 90% of the roughly 24 million Americans enrolled in Obamacare insurance plans receive some form of subsidy, mostly the enhanced premium tax credits that were passed by Democrats as a COVID-19 pandemic relief measure in 2021 that expanded subsidies to higher income brackets.
Without extending the enhanced tax credits or making them permanent, the Congressional Budget Office estimates that 3.6 million people will no longer be able to afford insurance coverage, and average Obamacare plan premiums are expected to rise 114%.
But anti-abortion advocates have argued since the Patient Protection and Affordable Care Act, which created the Obamacare marketplace, was enacted in 2010, that the original subsidy structure effectively allowed for federal dollars to fund abortion services.
Kelsey Pritchard, a policy expert for SBA Pro-Life America, told the Washington Examiner that the original Obamacare subsidy structure was never required to follow the rules of the Hyde Amendment, which bans federal funding for abortion services except in the rare instances of rape, incest, or life-threatening complications for the mother.
The Hyde Amendment only applies to appropriations bills that fund executive department activities, but Obamacare-related expenses are not part of the normal appropriations process.
“Democrats wrote Obamacare intentionally this way, specifically to avoid the Hyde Amendment, so that they could squeeze an abortion coverage in these plans and make sure that taxpayer dollars were propping these plans up,” said Pritchard.
Insurers are supposed to collect an abortion surcharge from enrollees if they cover abortions in order to ensure that the federal subsidies are not directed toward those services. But in practice, insurance companies only solicit one payment from enrollees and only submit a single claim to the federal government to collect on the subsidies, which anti-abortion advocates say muddies the bookkeeping.
It’s unclear whether Republicans will reach some sort of compromise with Democrats to make the enhanced subsidy structure permanent, but Pritchard says the GOP must make it a priority to ensure that whatever policy is cobbled together will be Hyde-compliant.
“If Republicans are going to extend the subsidies, we are adamant that it needs to be Hyde Amendment-compliant, and that we should no longer be propping up abortion or propping up premium tax credits, etc, for these insurance plans to cover abortion,” said Pritchard.
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Longtime goal of the GOP
Senate Republicans are particularly interested in ensuring that whatever formulation of health insurance reform comes to pass does not use federal dollars to subsidize abortion.
On Wednesday, Sen. Josh Hawley (R-MO) introduced a bill prohibiting health insurance plans on the Obamacare exchanges from covering abortion services and gender transition treatments for minors.
The language of the bill would incorporate Hyde amendment language directly into the federal coverage terms of health plans, effectively prohibiting insurance plans sold on the Obamacare exchanges from offering abortion-related services except in the cases of rape, incest, and life-threatening complications for the mother.
“It’s time to ban abortion and gender-transition procedures for minors on the healthcare exchanges. No more loopholes,” Hawley said in a press release announcing his new bill.
Republicans have in the past proposed several other policy frameworks to impose Hyde Amendment restrictions on subsidized Obamacare plans, but they have not been successful.
Sen. Bill Cassidy (R-LA), currently the chairman of the Senate health committee, and Sen. Lindsey Graham (R-SC) introduced an amendment in 2017 to the GOP health bill to “repeal and replace” Obamacare that would have phased out the original version of the subsidies all together. For the brief two-year window that they would have existed under the Graham-Cassidy framework, they would have prohibited plans on the Obamacare exchanges from covering abortions.
The GOP’s legislative proposal to “repeal and replace” the Obamacare structure, including the piece on abortion coverage, fell apart following the late Sen. John McCain’s (R-AZ) vote against the measure at the last moment.
In 2019, Cassidy and 32 other Senate Republicans introduced the No Taxpayer Funding for Abortion and Abortion Full Disclosure Act, which would prohibit insurance companies from using subsidies to cover abortion services and require plans to charge an “abortion surcharge” if they chose to provide those services.
This January, Sen. John Boozman (R-AR) and Roger Wicker (R-MS) reintroduced the same bill, which was cosponsored by 45 other GOP Senators.
Is now the time?
Applying Hyde Amendment regulations to the enhanced premium tax credits and the cost-sharing subsidies is only a fraction of the reforms of Obamacare that conservatives want to see, even for those whose main opposition is abortion funding.
Brittany Madni, Executive VP at the Economic Policy Innovation Center, told the Washington Examiner that the Obamacare system, from HealthCare.gov to the state exchanges, is a thoroughfare for abortion, since the separation between subsidized care and unsubsidized abortion services has broken down in practice.
On top of this, 12 states require all fully insured health plans, including Obamacare plans, to cover abortion services. That would present technical legal problems should federal subsidies no longer apply to those plans.
“Can you technically make the subsidies Hyde-compliant? Yes, but that is not sufficient,” Madni said. “You actually need to review the larger Obamacare system and make the larger Obamacare structure Hyde-compliant.”
Politically, Madni says she predicts it is going to be difficult for Republicans to get through their ideal version of subsidy reform with respect to abortion.
“I think that is going to be a sticking point for both sides,” said Madni. “If it’s going to be strong enough for the Republicans to support, I think it’s going to be a problem for Democrats to get behind.”
Pritchard from SBA said that anti-abortion advocates recognize there are a number of competing priorities in the negotiation process, but SBA will be using this metric for their Pro-Life Scorecard, which measures how elected officials vote on anti-abortion and pro-family measures.
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In early September, SBA and 88 other anti-abortion groups sent a letter to representatives and senators calling for Congress to oppose extending the subsidies without making them Hyde-compliant.
“Republicans in Congress should never take their pro life base for granted and the will of the voters, with it being a very unpopular thing to do to force taxpayers to fund abortion,” Pritchard said.
