- Non-Hyde abortion coverage is much more common in states that run their own exchanges.
- New federal rule would have required insurers to send two invoices if the plan covers non-Hyde abortions. This was delayed until late August 2020, but a judge overturned the rule in July 2020, blocking it from taking effect.
- 2021 HHS proposal calls for elimination of the two-invoice rule
Q. Do health plans sold in the health insurance exchanges cover abortion?
A. Some do, and some don’t. They are not required to, and in more than half the states, health insurance plans sold in the exchange are not allowed to cover abortions except for circumstances involving rape, incest, or the mother’s life being in danger.
The ACA makes a delineation between abortions for which federal funding cannot be used, versus those for which it can. This was clarified by President Obama in Executive Order 13535, and is very similar to the longstanding Hyde Amendment that dates back to 1976.
The ACA and Executive Order 13535 are clear in stating that federal funding (including premium subsidies and cost-sharing subsidies) cannot be used to pay for abortions, unless the mother’s life is in danger or the pregnancy is the result of rape or incest. Abortions that don’t fall within those three exceptions are generally called “non-excepted” or “elective” or “non-Hyde.”
Starting with 2019 plans, HealthCare.gov displays information on whether or not each plan provides elective abortion coverage (ie, abortion coverage for circumstances other than rape, incest, or to protect the mother’s life). For each plan displayed on HealthCare.gov, this information can be found by clicking on “plan details” and then “other services.” If the plan provides coverage for non-Hyde abortions, it will be noted in this section.
Elective abortion coverage is much more common in states that run their own exchanges
Six states—Oregon, New York, California, Washington, Illinois, and Maine—require all state-regulated plans (which includes all plans sold in the individual market) to cover abortion services. Oregon, Illinois, and Maine use HealthCare.gov, while New York, California, and Washington have fully state-run exchanges.
But although 26 states have laws that ban or restrict abortion coverage for plans sold in their health insurance exchanges, only two of those states (Idaho and Pennsylvania) have fully state-run exchanges. The other 24 all use HealthCare.gov. And it’s clear that abortion coverage is much more widely available in states that run their own exchanges.
As of 2021, there are 15 fully state-run exchanges (ie, the state runs its own exchange and uses its own enrollment platform, rather than HealthCare.gov), including DC’s exchange. The other 36 states use HealthCare.gov.
In a new rule addressing billing procedures for abortion coverage (discussed in more detail below), HHS noted that based on 2020 plan data (when there were 13 fully state-run exchanges and 38 states that used HealthCare.gov):
- Across the 38 states that use HealthCare.gov, there were 23 insurers offering a total of 338 plans in nine states that provided coverage for non-Hyde abortion services (these numbers are higher than they had been in 2018, but still clarify that in the large majority of states that use HealthCare.gov, non-Hyde abortion services are not covered on plans purchased in the exchange).
- Across the 13 fully state-run exchanges, there were 71 insurers offering 1,129 plans in 12 states that provided coverage for non-Hyde abortion services (according to Kaiser Family Foundation data, there are three states—Idaho, Minnesota, and Nevada—that have state-run exchanges as of 2020 but had no on-exchange plans in 2019 that covered non-Hyde abortion services; Idaho law prohibits it, while Minnesota and Nevada had no insurers offering non-Hyde abortion coverage).
- Roughly 3.04 million people were enrolled in on-exchange plans that included non-Hyde abortion coverage in 2019 (there were about 10.2 million people with effectuated enrollment in the exchanges as of mid-2019, so roughly 30% were in plans that included non-Hyde abortion coverage).
Judge blocks Trump administration rule that would have required insurers to send a separate $1/month invoice for abortion services; HHS subsequently proposes elimination of the rule
In December 2019, HHS finalized a rule (that had been proposed a year earlier) aimed at clamping down on compliance with ACA Section 1303. That section details how the law requires insurers that offer non-Hyde abortion services to collect at least $1 in premiums per month to cover abortion services and segregate those funds separately from the rest of the insurer’s premium revenue. It also notes that premium subsidies cannot be used to fund non-Hyde abortions. Incidentally, most carriers report that it actually costs them less than $1/month to provide elective abortion coverage; they round up the amount in order to comply with the ACA.
(Some enrollees, including people receiving unemployment compensation in 2021, are eligible for $0 premium plans, because their subsidies are large enough to cover the full cost of the plan. But if those plans cover non-Hyde abortion services, the insurer must still send a separate bill for at least $1 each month. That is true even if the available premium tax credit far exceeds the total cost of the health plan in which the person is enrolled. So in states where non-Hyde abortion coverage is required on all health plans, there are no plans available that have their premiums reduced all the way to $0 by the premium tax credit; the after-subsidy premium will be at least $1.)
The new rules were initially slated to take effect as of June 27, 2020. But in response to the COVID-19 pandemic, HHS issued a 60-day delay, pushing the effective date out to August 26, 2020, with insurers required to comply by their first billing cycle after that date. However, the abortion invoicing rule was challenged in court, and in July 2020, US District Court Judge Catherine C. Blake overturned it, meaning that it did not take effect in August 2020. The rule was still blocked as of mid-2021, and HHS has now proposed eliminating it altogether.
If Judge Blake had not overturned the rule, it would have required exchange insurers that cover non-Hyde abortions to send two separate invoices to their members each month: One for the bulk of the premium, and a separate invoice, for at least $1, for abortion coverage. The final rule directly acknowledged that the rule change would have added additional administrative burden and costs for insurers, which would “likely lead to higher premiums for enrollees.” The rule also states that “it also it is ultimately at the issuer’s discretion whether to cover non-Hyde abortion services in their QHPs, and thus to incur any associated burden.” So it is not surprising that the rule was expected to result in fewer insurers offering non-Hyde abortion coverage. Judge Blake also noted that $1 charges could be flagged as fraudulent by members’ banks and credit card companies, leading to increased billing headaches beyond the specifics noted by HHS.
Here’s the backstory on how the federal government’s interpretation of ACA Section 1303 has evolved:
In 2015, HHS clarified that insurers would be in compliance with Section 1303 if they sent a single bill to the insured, and collected a single payment, as long as the invoice included a separate line item for the non-Hyde abortion coverage. But that was under the Obama administration. In 2017, HHS, now under the Trump administration, notified insurers that they would have to send notices to their enrollees specifically stating (if applicable) that a portion of the premium being charged was a separate amount to cover non-Hyde abortions.
And the new rule, which was slated to take effect in August 2020, would have gone even further if it hadn’t been vacated and enjoined by Judge Blake. It voided the 2015 regulations (allowing a single bill with separate line items) and instead would have required insurers that cover non-Hyde abortion services to send separate invoices, either by mail or electronically, to the insured. The separate invoices could be included in one envelope if a paper invoice was sent to the insured (the proposed rule hadn’t permitted that, but the final rule does), but would have been required to be sent in two separate electronic communications if the insured receives electronic invoices.
The non-Hyde abortion coverage would have been required to be at least $1/month, and the insured would have had to pay two separate bills in order to keep their coverage in force. The insurer would have been required to instruct the member to pay the total premium in two separate transactions, but the final rule does note that if the insured combined the two bills and sent the insurer one payment for the total amount, the insurer would have had to accept the payment and split it up across the two invoices. In other words, enrollees would not lose their coverage for paying the full amount in one transaction instead of two.
However, enrollees would have been in danger of losing their coverage—for failure to pay premiums—if they disregarded or didn’t notice the separate invoice for the non-Hyde abortion services. These bills would have been in the range of $1/month, so enrollees might not have understood them or realized that they must be paid just like the rest of their health insurance premiums. But failure to pay the separate premium could have resulted in the insured entering their non-payment grace period, and ultimately losing coverage if they didn’t get their account paid in full by the end of the grace period.
The final rule did clarify, however, that an insurer would have the option to adopt a policy, uniformly applicable to all their enrollees, under which they would not terminate coverage for non-payment of the separate abortion coverage bill. Insurers would not have been allowed to waive the fee, but they would have been allowed to let it continually accrue without sending enrollees into the non-payment grace period. This would have been at each insurer’s discretion.
The final rule would also have allowed insurers (if permitted by state law) to modify an enrollee’s coverage mid-year to eliminate non-Hyde abortion coverage if the enrollee failed to pay the separate abortion invoice. HHS recommended that insurers receive affirmative confirmation from an insured that they actually wished to opt out of the non-Hyde abortion coverage before modifying the plan, however, as some people might have simply overlooked the second invoice. Assuming an insurer offered this option and a policyholder chose to opt out of the non-Hyde abortion coverage, that decision would then remain in effect for the remainder of the year; there would not be an option to opt back in by paying the premiums for the non-Hyde abortion coverage.
HHS would have enforced the separate invoicing/payments rule in states that use the federally-run exchange, and they expected states to enforce it in the states that have their own exchanges. The final rule noted that if states had not done so, and if HHS believed that there was potential mismanagement of federal funds, HHS would have stepped in to enforce the rules on behalf of the state.
In addition to the direct cost to insurers—to generate and send separate invoices, field questions from consumers about the separate invoices, and process separate payment transactions—the new rule would have also imposed a cost on consumers: The extra time spent trying to understand why they’re receiving two bills from their insurer (including consumer concerns that the second bill might not be legitimate), the extra checks and postage necessary to pay an additional bill, and the potentially massive disruption that would have been caused if the policy lapsed because the insured didn’t understand that the separate $1 bill did, in fact, need to be paid each month. And as Judge Blake noted in her ruling, banks and credit cards might have flagged the $1/month charges as fraudulent, resulting in policyholders having to straighten out the resulting banking snafus.
If the separate abortion billing rule had been allowed to take effect, it’s not hard to see that insurers in states that don’t require abortion coverage might have simply decided that offering the coverage was more trouble than it’s worth, and stopped doing so.
Attorneys general from seven states, led by California and New York, sued the Trump administration to block the new billing rules. Another lawsuit was filed by Planned Parenthood of Maryland and four marketplace enrollees, and it’s the case that resulted in the rule being vacated in July 2020.
After the rule was proposed in late 2018, Katie Keith wrote an excellent overview of the potential impacts. Keith also has a thorough summary of the July 2020 ruling that blocked the abortion coverage billing rule.
In mid-2021, HHS proposed a rule change to revert to the policies that were outlined in 2015. Assuming that’s finalized, those rules will once again apply.
State actions to limit coverage
Section 1303 of the ACA clarifies that health insurance plans are not required to cover abortion. It also allows states to pass laws prohibiting or limiting abortion coverage on plans in their exchanges, and 26 states had done so as of 2021. Most of those states limit their ban to coverage for non-Hyde abortions, and do allow exchange plans to cover abortion if the mother’s life is in danger, or if the pregnancy is the result of rape or incest.
But some states do not allow an exception for cases where the pregnancy is the result of rape or incest, and two states – Louisiana and Tennessee – do not allow any abortion to be covered on plans sold in the exchange, even if the woman’s life is in danger or the pregnancy resulted from rape or incest.
Additionally, of the 26 states that have restricted abortion coverage in the exchanges, 11 of them have taken the legislation even further, and ban coverage for elective abortions on all private plans, even though sold outside the exchange.
As long as a state has not banned elective abortion coverage in its exchange, carriers are permitted to provide elective abortion coverage. But in order to do so, the ACA requires carriers to collect a separate premium amount (at least $1 per month, not eligible to be covered by premium tax credits/subsidies) for each enrollee to cover abortion services, and hold it in a segregated account.
Access to plans that cover elective abortions
Because abortion and the ACA are both such polarizing issues, the areas where they intersect are, unsurprisingly, political powderkegs. Pro-choice organizations fear that onerous regulations could result in abortions becoming more difficult and expensive to obtain, while anti-abortion groups are concerned that premium subsidies (i.e., tax dollars) could potentially be funding elective abortions if the carriers are not strictly adhering to the separate funds requirement laid out in the ACA.
But in reality, how accessible is non-Hyde abortion coverage for people who buy their own health insurance? A Kaiser Family Foundation analysis of 2019 health plans indicated that there were:
- 26 states where non-Hyde abortion coverage is banned for all plans sold in the exchange.
- Eight states where non-Hyde abortion coverage is not banned, but no insurers offer such coverage (Delaware, Iowa, Illinois, Minnesota, New Mexico, Nevada, West Virginia, and Wyoming)
- Five states (Connecticut, Hawaii, Maryland, New Hampshire, and Vermont) and the District of Columbia, where all available exchange plans include non-Hyde abortion coverage, despite no state laws requiring it.
- Six states (as of 2021) where state law requires all exchange plans to include non-Hyde abortion coverage (California, Illinois, New York, Oregon, Washington, and Maine).
- Six states where state law does not require or ban non-Hyde abortion coverage, and at least one insurer offers this coverage in at least part of the state (Alaska, Colorado, Massachusetts, Montana, New Jersey, and Rhode Island)
So people in almost all states can purchase an exchange plan that does not cover elective abortion, if that is their wish. People who do want elective abortion coverage can potentially obtain it in the exchanges in half the states, and outside the exchange in 39 of the states – although it’s up to each carrier whether or not to offer abortion coverage in those states, and not all carriers do.
What about Medicaid?
The Hyde Amendment’s ban on federal funding for non-excepted abortions applies to federal Medicaid funds. But since state and federal funds are used jointly for Medicaid, states are permitted to use their own funding to cover abortions beyond what the Hyde Amendment allows.
There are 16 states that provide Medicaid coverage for “medically necessary” abortions – and medically necessary is defined as protecting the physical or mental health of the woman. In the rest of the states Medicaid only covers abortion if the mother’s life is in danger, or if the pregnancy is the result of rape or incest.
Louise Norris is an individual health insurance broker who has been writing about health insurance and health reform since 2006. She has written dozens of opinions and educational pieces about the Affordable Care Act for healthinsurance.org. Her state health exchange updates are regularly cited by media who cover health reform and by other health insurance experts.