Abortion Rights at Risk

The Department of Health and Human Services' recent announcement would create a new sphere of abortion restrictions, undermining women's reproductive autonomy. It states that abortion coverage may only be obtained in the new high risk pool plans in cases of rape or incest, or where the life of the woman would be endangered. This wording mirrors the restrictions articulated in the Hyde Amendments, which currently apply to particular federal programs by virtue of their inclusion in certain appropriations bills. Anti-choice activist groups have demanded the new regulations.

As federal law currently stands, there are no restrictions placed upon federal or state money regarding abortion coverage in the Pre-existing Condition Insurance Plans (PCIP). The PCIPs are temporary insurance pools to provide insurance coverage to those deemed "high risk," meaning the individual has some kind of pre-existing condition.

Because no law specifically addresses PCIPs and abortion coverage, the HHS statement would create new restrictions on abortion not already mandated by federal law, and elevate its status as a policy. (See below for full text of announcement)

None of the current federal abortion restrictions that are in place apply to the PCIPs. The Hyde Amendment, which restricts abortion coverage to rape or incest, or where the life of the woman is in danger, only applies to funding appropriated through the Departments of Labor and Health and Human Services, including Medicaid. The appropriations for the Federal Employee Health Benefits Plan also restrict abortion coverage, but this clearly does not apply to the PCIPs.

There is no precedent for this action in prior federal law. In addtion, there is no precedent in the Patient Protection and Affordable Acre Act (PPACA). The Nelson Amendment, adopted in the new law, only applies to plans obtained in the healthcare exchanges, which will not be active until 2014. The Executive Order that the President signed regarding abortion coverage through PPACA gives no indication that it was meant to apply to more than the healthcare exchanges and community health centers.

The abortion coverage restrictions placed on the PCIPs is reminiscent of the Stupak Amendment first seen in the House version of PPACA, but later removed. The Stupak restrictions would have limited use of any funds, even those procured privately or through states, to provide abortion coverage to individuals participating in the PCIPs. This provision should be opposed and reversed.

Text of HHS announcement:

As is the case with FEHB plans currently, and with the Affordable Care Act and the President's related Executive Order more generally, in Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) except in the cases of rape or incest, or where the life of the woman would be endangered.

Our policy is the same for both state and federally-run PCIP programs. We will reiterate this policy in guidance to those running the Pre-existing Condition Insurance Plan at both the state and federal levels. The contracts to operate the Pre-existing Condition Insurance Plan include a requirement to follow all federal laws and guidance.