A Catholic couple from Connecticut has filed suit against what it says is an “abortion fee mandate” contained in the Affordable Care Act. Barth and Abbie Bracy claim they are being forced to pay a $1 fee for abortion coverage to obtain insurance through Connecticut’s health exchange and that such payment violates their religious freedom as abortion opponents. But the “abortion fee” they claim to be paying is an illusion—the result of the Catholic bishops’ own objections to abortion coverage under the ACA.
The U.S. Conference of Catholic Bishops lost a heated battle to ban private insurers who are participating in exchanges from providing abortion coverage beyond the Hyde amendment limitations of rape, incest and life endangerment. But the bishops were successful in forcing the creation of a cumbersome methodology designed to ensure that no money from federally funded insurance subsidies would go toward abortions.
Apparently the bishops were hoping that ACA enrollees would have to write a separate check for abortion coverage so they’d be freaked out by having to write “for abortion” on the memo line. Instead, the methodology worked out by the Department of Health and Human Services requires insurers to segregate the premiums on their end, setting aside a small percentage of the premiums in a separate account to pay for the estimated cost of abortion claims, which, it should be noted, would include abortions for health reasons, emergency abortions in the case of catastrophic pregnancy loss, or abortions for fetal deformities, all of which are expensive, hospital-based procedures.
The Catholic bishops then turned around and asserted that this segregation methodology that they forced was an “additional payment” for “elective abortions for anyone in the plan.” They even suggested that insurers would prefer to pay for abortions rather than the cost of childbirth or health insurance for children. Their favorite waterboy, Rep. Chris Smith, tried to drum up some outrage on the right about the “abortion surcharge” back in 2012 but didn’t have much success.
Now the surcharge is back as an “abortion fee.” Writing in America last month, USCCB lobbyist Richard Doerflinger warned that health plans “must require each and every enrollee to pay a special premium solely for elective abortions… a common impression that enrollees will write a ‘separate check’ for abortion, which pro-life dissenters might try refusing to sign, is apparently false,” which the bishops have known since 2012.
The irony is that while the Bracys’ suit is generally hostile to the ACA and the individual mandate, they will only have to pay $2.63 a month for health insurance for a family of six because of federal subsidies. And while the suit implies they will have to make a separate payment for abortion, it admits that federal law bars insurers from billing separately for abortion coverage: “issuers and exchanges may provide ‘information only with respect to the total amount of the combined payment.’”
Thus the Bracys will write one check for $2.63. They are no more paying a “fee” for abortion than they are paying a fee for triple-bypass surgery or anything else that could be covered by health insurance. It’s at the bishops’ insistence that none of their subsidy funding can go toward abortion so the actuarially estimated amount the plan may pay for abortion care has to come out of their end of the premium. The nonpartisan Guttmacher Institute has called charges of an abortion fee in the ACA “plainly not true”.
The suit does however show the power of segregating abortion from other health care services, which then makes it an easy target. Casey Mattox, senior counsel for the Alliance Defending Freedom (ADF), which filed the suit on behalf of the Bracys, asserted that not only are they being required to pay “for other people’s abortions,” but that there’s a “secrecy clause” that prohibits insurers from divulging whether they cover abortions. The suit charges that the ACA “prohibits an insurer from disclosing to individuals seeking to enroll in a health insurance plan whether a plan covers elective abortions.”
Guttmacher has refuted this contention as well, although it has noted, as have reproductive health advocates, that it can be difficult for potential enrollees to determine if a plan covers abortion services, not because of attempts at obfuscation but because of a lack of clarity in the regulations about how information about abortion coverage is communicated to consumers. (Connecticut was one of the states in which Guttmacher found information about a plan’s abortion coverage in “detailed plan documents.”)
According to Guttmacher, a simple administrative rule change requiring abortion to be listed in a plan’s summary of benefits and coverage would ensure transparency. It noted however, that “[a]bortion foes are less interested in abortion disclosure than in discouraging plans from covering abortion care and consumers from buying plans that do.”
Also untrue are claims made in the suit that Connecticut is ignoring the requirement that at least one plan offered through the exchanges omits abortion. The requirement won’t be in force until 2017 and some states such as Connecticut are still bringing the complying plan online.
Significantly, the ADF is the legal group that represented the town of Greece, NY, in theTown of Greece v. Galloway Supreme Court case. As with the Hobby Lobby and Conestoga Wood (which ADF also represents) contraception mandate case, this suit brings together high-profile political objections from the Catholic bishops, a well-funded conservative public interest law firm, and a willing and sympathetic plaintiff—Mr. Bracy conveniently is head of Rhode Island Right to Life—with claims of religious freedom to chip away at women’s access to health services.
Reproductive health advocates have voiced fears that the cumbersome segregation methodology could force many insurers to drop coverage for abortion all together, a likelihood which may only be furthered by lawsuits charging a cover-up to force unsuspecting individuals to pay for “other people’s” abortions.