How Republicans Are Quietly Trying to End Abortion Access Through Obamacare Repeal

Congressional Republicans want to use their Obamacare repeal bill to prohibit any health insurance plan, private or public, from covering abortion care.

But that goal could sink under the weight of its own ambition.

The American Health Care Act (AHCA) in the U.S. House of Representatives and the Better Care Reconciliation Act (BCRA) in the U.S. Senate prevent private health insurance plans, individual plans, and at least some employer-sponsored plans, from covering abortion. Republicans impose the restrictions through federal tax credits that are less generous than those enacted under the Affordable Care Act (ACA), President Obama’s signature health-care reform law. The structure of the tax credits differ between the two chambers.

Senate Republicans included the restrictions in the BCRA discussion draft they released Thursday morning, contradicting initial projections by the Washington Post and other news outlets. The working group of 13 Republican men and zero Republican women who crafted the repeal plan behind closed doors had toyed with the restrictions, given concerns that they might not have the procedural power to limit abortion access. Ultimately, they pulled the restrictions from the version that their counterparts across the Capitol forced through the House in May.

Overtly partisan abortion restrictions could violate the rules of the special fast-track “budget reconciliation” process that Republicans are using to pass a repeal bill in the Senate with a simple 51-vote majority, rather than the 60 votes typically needed in that chamber for controversial legislation. Banning abortion coverage so broadly appears to be on the same uncertain footing as a separate provision in both the House and Senate versions “defunding” Planned Parenthood via a one-year moratorium on reimbursements for Medicaid patients.

Senior GOP Senate staff told reporters on a press call Thursday that Republicans will continue discussions about the hits to abortion and Planned Parenthood access with the parliamentarian, the arbiter of the chamber’s rules and procedures.

Senate Republicans turned to other House GOP provisions that reproductive rights advocates have said will disproportionately hurt women. Both versions of the health-care bill allow states to waive guaranteed essential health benefits (EHBs), including maternity care.

“If states can waive the EHB requirements, millions of women could be left without the coverage they need or forced to pay more for plans that include the coverage of critical services, such as maternity care, prescription drugs and mental health services,” National Partnership for Women and Families President Debra Ness said in a statement.

Ness pointed to a nonpartisan Congressional Budget Office (CBO) forecast that detailed the vast human cost of the House-passed AHCA. The CBO estimated that maternity coverage could cost more than $1,000 per month.

GOP Sens. Ted Cruz (TX), Ron Johnson (WI), Mike Lee (UT), and Rand Paul (KY) issued a joint statement saying they were “not ready to vote for this bill” because it didn’t go far enough to repeal Obamacare. Two other Republicans, Sens. Susan Collins (ME) and Lisa Murkowski (AK), may defect over the Planned Parenthood provision. Senate Majority Leader Mitch McConnell (R-KY) can still pass the bill if he loses two votes and brings in Vice President Mike Pence to break the tie, mimicking what happened in March when the GOP shredded Obama-era Title X family planning protections.

Destiny Lopez, co-director of All* Above All, a reproductive justice group that fights the Hyde Amendment and other discriminatory abortion restrictions, identified the hypocrisy underlying Senate Republicans’ plan.

“Not only is this bill going to make it harder to prevent unintended pregnancy and nearly impossible to get an abortion covered by insurance, they’ve also added provisions that would penalize folks for having children,” she said in a phone interview. So, you’re kind of damned if you do, damned if you don’t.”

The Senate’s BCRA phases out Medicaid expansion over a longer period than the House-passed AHCA but cuts the program more deeply. Andy Slavitt, the former acting administrator for the Centers for Medicare and Medicaid Services under President Obama, described on Twitter how Senate Republicans provide incentives to decimate Medicaid through state waivers.  

Provisions like these will disproportionately hurt people living at the intersection of marginalized groups.

“We know that low-income people, in particular communities of color, gender nonconforming folks, are the ones who bear the brunt of these kinds of political ploys,” Lopez said, adding that one in five U.S. women of reproductive age enrolled in Medicaid breaks down to one in three Black women of reproductive age and one in four Latina women of reproductive age.

“People living at the intersections ultimately are the ones who suffer under this bill, although again, I think we can’t forget that they’re coming for you if you have private coverage too,” Lopez said.

That warning circles back to the abortion restrictions that could leave even those with private insurance on the hook for the cost of what can be a cost-prohibitive procedure. Will congressional Republicans ultimately place abortion out of reach for all but the wealthiest or most privileged Americans who can pay for it in full?

#ThrowbackThursday Abortion Restrictions Burden Women

For all of House and Senate Republicans’ bluster about abortion, they’re recycling the anti-choice playbook from the original Obamacare debates in 2009 and 2010.

The abortion restrictions in the House-passed AHCA mirror the ACA’s failed Stupak-Pitts Amendment, according to Guttmacher Institute Senior Policy Manager Adam Sonfield, who spoke with Rewire in the lead-up to Thursday’s reveal in the Senate. Senate Republicans also appear to rely on the Stupak-Pitts model.

For the uninitiated, then-Reps. Bart Stupak (D-MI) and Joe Pitts (R-PA) in 2009 played into the GOP myth that taxpayer money is fungible. Their amendment sought to bar the ACA’s tax credits from subsidizing any health insurance plan that covers abortion, not just abortion care itself in compliance with longstanding federal policy. The amendment passed the House with the help of 64 Democrats.

Congress ultimately went with the Nelson Amendment from then-Sen. Ben Nelson (D-NE). The ACA’s tax credits can subsidize any plan that covers abortion as long as insurers wall off abortion care into a separate fund that only draws money from individuals’ or employers’ private contributions to premiums.

“The way it works in practice is that the insurance company has to segregate the dollars and make sure that the federal dollars aren’t touching abortion,” Sonfield told Rewire.

That’s bad enough from Sonfield’s perspective; the Nelson Amendment empowered legislators in 25 states to enact restrictions of abortion coverage in their exchanges. Ten of those states apply the restrictions to all private health insurance plans that they regulate and are available in their borders. Two states, California and New York, require private plans to cover abortion care, and AHCA puts them “in an untenable position,” Sonfield wrote in an article for Health Affairs. “They might be forced to reverse or stop enforcing their abortion coverage requirement, or state residents might find themselves unable to use federal subsidies to buy any insurance plan offered in the state— effectively, an abortion surcharge of thousands of dollars.”

If congressional Republicans get their way, they’ll apply the restrictions to the tax credits for all private health insurance plans sold to people and families available in the United States, à la Stupak-Pitts. Republicans will hold the existing ACA subsidies, including those for small businesses that offer employer-sponsored plans, to the restrictions until phasing them out, per Sonfield’s article. Doing so “could have a chilling effect on some employers’ willingness to include abortion coverage in the plans they sponsor,” Sonfield warned.

The bottom line: Republicans “are trying to make it the norm for insurance plans to exclude abortion,” Sonfield said.

That’s already the norm for cisgender women, transgender people, and gender nonconforming people enrolled in public insurance plans like Medicaid and a companion program, the Children’s Health Insurance Program (CHIP). For 7.5 million women of reproductive age, more than half of whom are women of color, legal abortion is often a right in name only, according to Guttmacher figures from January.

People with private insurance could soon join their ranks.

Four in ten abortion patients who have private insurance use it to pay for abortion care, according to Sonfield’s Health Affairs article. Those who don’t use it may face high deductibles or any number of hurdles, including abortion stigma.

Republicans may try to claim that people can purchase a separate “rider” at additional cost to cover abortion care. Rep. John Shimkus (R-IL) sparked an uproar in March when he suggested that women buy maternity riders, even though insurance works by pooling risks, not by spinning off specific benefits. The disconnect became all the more evident after Michigan in 2013 banned private insurance from covering abortion care—and no insurance companies subsequently stepped up to offer abortion riders on the individual market. A limited number of insurance companies offered the riders for employer-sponsored plans.

And employers aren’t going to want to buy separate abortion coverage for their employees with so many disincentives at play, warned Andrea Flynn, a women’s economic security policy expert and fellow at the Roosevelt Institute.

“What you’re seeing now is that the government is basically saying, ‘You can either have our subsidies or provide abortion coverage,’ and that’s a tough place to put small businesses in,” Flynn said in a phone interview. It’s a tough place for women, too, she said, since so many work for small businesses.

Where does that leave them?

Abortion, Planned Parenthood Provisions Face Test

There is good reason to believe that restricting abortion access and defunding Planned Parenthood won’t get through Congress—at least, not in their current forms.

Both are on the Senate parliamentarian’s radar. The parliamentarian has “flagged” the abortion restrictions, according to a June 8 report in The Hill. The report, citing unnamed Senate sources, indicated that the parliamentarian had issued a formal warning to Republicans, who were undeterred.

“There’s still not a clear ruling from the parliamentarian about the House Hyde language…I don’t think we go to contingencies or Plan Bs until we know that. But I do think there’s been some gaming out of how you address it if the House language isn’t acceptable,” Sen. John Thune (R-SD), a member of the group, told Politico the same day as The Hill report.

Republicans are trying to figure out how to maneuver around the Byrd rule, the linchpin of budget reconciliation. The Byrd rule kills provisions that are “merely incidental” to the budget. In other words, Congress can’t wield the reconciliation process with a lower vote threshold for the sake of a political agenda—or a partisan vendetta against abortion and Planned Parenthood. 

One potential workaround for some of the abortion restrictions: The Senate bill funnels a “stability fund” of more than $100 billion at the expense of taxpayers to brace for the impact of dismantling the ACA’s state exchanges through CHIP, which can’t cover abortion care due to the Hyde Amendment. Doing so prevents that money from going to abortion coverage too, Guttmacher’s Sonfield said.

The anti-abortion restrictions baked into the tax credits for private insurance remain.

It’s hard to know how the parliamentarian will rule on any of the restrictions. Elizabeth MacDonough, who was appointed to the role by then-Senate Majority Leader Harry Reid (D-NV) in 2012, now serves at the behest of Senate Majority Leader Mitch McConnell (R-KY). MacDonough in 2015 gave the green light for the ACA repeal bill that defunded Planned Parenthood for one year. Obama vetoed that bill.

But this time around, reproductive rights advocates appear to have the CBO on their side. The CBO unequivocally determined that Republicans intend to defund Planned Parenthood, and only Planned Parenthood in the House-passed AHCA bill. Many Senate aides believe that violates the rules of reconciliation, according to a recent CNN report.

“Experts agree the ‘defund’ Planned Parenthood provision is a violation of the Byrd Rule because it is politically-motivated policy, similar to the tax credit provision related to abortion,” Planned Parenthood Federation of America said in a statement.

“It has no place on reconciliation because it violates these rules, and it has no place on any legislation because it is the epitome of a mean-spirited policy that hurts millions of women.”

All* Above All’s Lopez advised people to remain vigilant, regardless of the short-term outcome. If the abortion restrictions on the state stability fund fail to pass muster with the parliamentarian, she said, Republicans could try to include them in must-pass CHIP reauthorization this September.

“I don’t know that there aren’t some tricks that they could figure out to make that not be the case,” she said. “That’s how it would normally be—this is not a normal political environment that we’re working in.”

No one can predict with certainty the fate of the abortion restrictions—or for that matter, the fate of the Planned Parenthood provision. Only the consequences of Republicans’ anti-abortion machinations are clear, per a new Kaiser Family Foundation report that now seemingly applies to the Senate’s BCRA too: “If the AHCA’s restriction of the use of tax credits for any plan that covers abortion beyond the Hyde restrictions becomes law, there will be very limited abortion coverage in private plans in all states.”

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