"Third Way" Goes the Wrong Way on Abortion Restrictions in Health Reform

Originally published by RH Reality Check.

At this point it's not news to anyone that our ostensibly pro-choice President has presided, through a combination of silence and pre-emptive capitulation, over some of the greatest setbacks to women's reproductive rights in more than a generation, culminating with the recent ban on coverage of abortion care for women entering high-risk insurance pools because they have high-risk health conditions that may be complicated or exacerbated by pregnancy.

In a mid-July article on the abortion coverage ban published by RH Reality Check, Jessica Arons, Director of the Women's Health and Rights Program at the Center for American Progress wrote:

a commotion arose over the question of whether Pre-existing Condition Insurance Plans, also known as high risk pools, can include abortion coverage.  The Obama Administration responded immediately by imposing a total ban on abortion coverage in the pools that echoes the Stupak Amendment, even though nothing in the law requires such action.

Repeat: "...nothing in the [health care reform] law requires such action."

How we got here under President Obama is the focus of another and forthcoming analysis.

For now, it's worth examining the claims being made about the abortion coverage ban by the self-proclaimed "progressive" group that appeared at the front of the line last week to apologize for this newest setback.

Enter Third Way.

Third Way is one of those groups that has pushed hard for so-called common ground on abortion issues. You know, the "common ground" on which the most fundamental rights of individual women to decide whether, when, and with whom to bear children--and to act in accordance with their own consciences, morals, and religious traditions in the best interests of their own and their family's health and well-being--would be subject to a modern-day sacrifice to salve the qualms of religious fundamentalists and political opportunists for whom huge gaps in access to contraception, comprehensive sexual and reproductive health education, child care, economic support for poor women, aid to communities beset by environmental toxins, school lunch programs, Head Start and all else that is "life-affirming" never seem to rise to quite the red-level-threat of urgency as does the reality of women having control over their own bodies.

The abortion coverage ban was bad, and the Administration knew it. And if you are going to break a huge promise to a huge constituency that worked incredibly hard to get you elected for no reason other than you can't stand up to the bullies, than it's always convenient to have a group or two that will help with CYA on even the most onerous or heinous policies. So when the regulations were put out there, and health and human rights groups cried foul, Third Way, purportedly at the request of some "progressive policymakers," stepped right in with an analysis intended it seems to pat all us womenz on the head and assure us that these regulations are really in sync with the "spirit and the letter" of the health care reform law. Don't worry your pretty little head, darlin'.

Except they are wrong on both the spirit and the letter of the law as well as the spirit of the President's repeated, repeated promises that no one would lose current coverage under health reform, and his later "promise" (after breaking the first one) that the so-called status quo in federal funding for abortion care would be preserved.

Third Way makes the following claims to support the coverage ban:

1) Federal funds cannot be used for non-Hyde abortions

2) High-risk pools are not like Medicaid

3) High-risk pools more closely parallel the Federal Employees Health Benefits Program (FEHBP)

4) The ban does nothing to change the rules for private insurance.

Let's take these claims one by one:

Claim 1: Federal funds cannot be used for non-Hyde abortions

Third Way argues that because the Hyde Amendment forbids federal funding for abortions, and because the high-risk pools are federally funded, it is "fundamentally consistent...to apply to the pools the same limitations that accompany federal funds in other areas of the health care law" even though, as they clearly state, "there is no specific legislative provision limiting coverage of abortion in the pools."

There are a number of things that make this analysis particularly shallow.

First, as Arons points out:

There is not one, over-arching law that restricts abortion funding for all sources of federal funds.  Rather, abortion opponents have had to fight to obtain funding restrictions for each separate source. Moreover, those restrictions are not permanent; they must be re-approved each year through the annual appropriations process and their contours have changed over time.

What, in effect, the Administration has begun to do in its expansive interpretation of existing law is to create a larger umbrella banning abortion coverage than exists in written law, thereby further (and further) eroding already-existing access to abortion care. This is neither the spirit of the health care law as the Administration publicly and consistently described it nor as the majority of Democrats in Congress intended it. In fact, as Arons further points out, the compromise that finally resulted in passage of the Patient Protection and Affordable Care Act (PPACA) was to preserve the "status quo" of Hyde, not expand it.

[T]he whole point of the compromise was to preserve the status quo, which included both restricted and unrestricted spheres of abortion funding.  Moreover, the terms of the agreement were carefully negotiated.  Abortion opponents who participated in the bargaining did not raise concerns about high risk pools or other specific potential sources of federal funding, and they should be able to live with the deal they made.

Second, the compromise was based on the fact that while federal funds would be prohibited from being used to pay for abortion, the law would maintain the availability of abortion coverage in health insurance plans by preserving the rights of women to use private funds to pay for that coverage. The high-risk pools are not "completely federally funded" (as Third Way asserts) because they in fact require participating individuals to use their own private funds to pay for their premiums. While the federal government is providing funding to offset the extremely high costs of providing insurance to those with pre-existing conditions, it is incorrect to say that this insurance will be paid for entirely with federal funds. That is yet another aspect of the "status quo" obliterated and an affront to the rights of all women to purchase and pay for the health care insurance they need.

Finally, the restriction on high-risk pools is not, as Third Way states, the same limitation placed on health care plans in the exchange. Subsidized individuals enrolled in a plan a state exchange will be able to purchase health insurance that includes abortion coverage as long as the health insurance company segregates the federal from private dollars to ensure that federal funds are not used for abortion. Participants in the high-risk pool, on the other hand, will be completely prohibited from purchasing health coverage that includes abortion coverage.

Claim 2: The high-risk pools are not like Medicaid

Third Way argues that the Administration "will apply the same rules to federal contributions in the high-risk pools as currently apply to federal contributions to Medicaid."

This is a misleading analogy. First, the Hyde Amendment does not apply to the high-risk pools because the funding does not go through the Labor-HHS Appropriations Act to which Hyde applies, but is appropriated directly from the Affordable Care Act. 

Even in making an analogy to the Hyde Amendment and the Medicaid program however, this analysis falls short. Third Way distinguishes the availability of abortion coverage in the Medicaid program versus the high-risk pools based on the ability of states to use their own funds to pay for abortion services under the Medicaid program.  While it is true that the newly created high-risk pools will not include state funding, the Hyde Amendment explicitly allows the use of both state and private funds for abortion coverage. If the high-risk pools did fall under the Hyde restriction like the Medicaid program, states could allow the coverage of abortion in their high-risk pools by using private funds to pay for the coverage.

Claim 3: The high-risk pools more closely parallel the Federal Employee Health Benefits Program (FEHBP)

Third Way next likens the high-risk pools to the FEHBP.

But these pools do not closely parallel the FEHB program. The FEHB is employer-based health insurance that provides health insurance benefits exclusively for federal employees, while the high-risk pools will provide coverage for individuals who cannot find insurance elsewhere due to a serious pre-existing condition, and as the Administration stated in the proposed rule, is a "temporary Federal insurance program in which the risk is borne by the Federal government up to a fixed appropriation."  The fact that both FEHB and the high risk pools will be administered by the Office of Personnel Management (OPM), another assertion made by Third Way, also does not mean that the programs are similar.  In fact, OPM will also administer the multi-state plans established under the Affordable Care Act, which are not only separate and distinct from FEHBP, but will be allowed to cover abortion.

Again, Third Way persistently states that the high-risk pools are run with federal money by federal rules. The high-risk pools however, will actually include a substantial amount of private funds due to premium contributions from participating individuals. According to the federal government's own health care reform website, the premium for an individual in New York state's high-risk insurance pool will range to $400 to $600 per month.  And while the federal government will administer some of the plans, 28 states will administer their own plans. 

Claim 4: This action does nothing to change the rules for private insurance plans.  

Third Way argues that the rules issued by the Administration do nothing to change the law for private insurance companies.

It is technically true that the Administration's new restrictions don't change those on health care plans in the exchanges under the Affordable Care Act.

However, Third Way incorrectly distinguishes the Stupak Amendment from the restriction on high-risk pools. In fact, like the Stupak Amendment, the restrictions prohibit those enrolled in the program from purchasing coverage that includes abortion with their own private money, which is the exact principle that was rejected when the Stupak Amendment failed to be included in the law. 

Third Way states that the restriction on the high-risk pools does not prohibit consumers from purchasing private insurance plans that include abortion coverage as long as they use their own money. However, the individuals who will qualify for coverage under the high-risk pools are by definition unable to purchase health insurance elsewhere on the private market.  Since there is no other way for these individuals to purchase health coverage, they are in fact prohibited from purchasing health insurance coverage that includes abortion with their own private money.

Third Way concludes that the Administration has applied "existing federal law and precedent."

As Jessica Arons pointed out in her original piece, there is no existing federal law that requires this restriction for the newly-created high-risk pools. And the Congressional Research Service confirmed in a July 23rd 2010 memo to the Senate Committee on Health, Education, Labor and Pensions that the Hyde Amendment does not apply to the high-risk pools and that there is no other federal law or regulation, including the Affordable Care Act and the subsequent Executive Order, that requires this result.  

What Third Way's analysis further neglects is the reality of abortion politics today, in which far right politicians, bereft of any ideas whatsoever to address profound economic, environmental and social challenges instead spend entire legislative sessions thinking up ways to make it increasingly difficult for women to prevent unintended pregnancies in the first place, or secure terminations of a pregnancy even when their lives are at imminent risk.

On all of these counts, Third Way's analysis is a completely indefensible effort to excuse  a completely indefensible policy.

Let's just call it what it is: This is a new restriction on coverage of abortion care for those who are most in need of comprehensive coverage, imposed by an Administration capitulating--yet again--to pressure from anti-choice groups. Last I remember, those groups did not vote for the President, contribute money to his campaign or campaign for him. Quite the contrary.

Still, Third Way for some reason sought to excuse it.  But the shallow nature of the analysis suggests that either Third Way didn't read the laws involved, or doesn't quite understand them, or both. Or perhaps the group is so enamored of its own limited analyses of the abortion debate that it completely misses or disregards what really motivates debates around sex and reproduction in this country--race, class, control of women, and craven power grabs by fundamentalist religious figures and politically opportunistic politicians.

The President broke a fundamental and profound promise by reaching outside an already-restricted law to further undermine women's fundamental rights. There is no "third way" or other way to slice it.