- Non-Hyde abortion coverage is much more common in states that run their own exchanges
- New proposed federal rule requires insurers to send two invoices if the plan covers non-Hyde abortions
Q. Do ACA-compliant health insurance plans cover abortion?
A. Some do, and some don’t. They are not required to, and in more than half the states, 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).
Elective abortion coverage is much more common in states that run their own exchanges
There are 12 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 39 states use HealthCare.gov. In a new proposed rule addressing billing procedures for abortion coverage, HHS notes that based on 2018 plan data, there are:
- Across the 39 states that use HealthCare.gov, 15 insurers offering a total of 111 plans in seven states that provide coverage for non-Hyde abortion services.
- Across the 12 fully state-run exchanges, 60 insurers offering approximately 1,000 plans in 10 states that provide coverage for non-Hyde abortion services.
Three states — Oregon, New York, and California — require all state-regulated plans (which includes all plans sold in the individual market) to cover abortion services. Oregon uses HealthCare.gov, but New York and California have fully state-run exchanges.
Although 26 states have laws that ban or restrict abortion coverage for plans sold in their health insurance exchanges, only one of those states (Idaho) has a fully state-run exchange. The other 25 all use HealthCare.gov.
New proposed rule could make abortion coverage more trouble than it’s worth for insurers
In November 2018, HHS published a proposed rule 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.
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 is a separate amount to cover non-Hyde abortions.
And the new proposed rule goes even further. If finalized, the 2015 regulations (allowing a single bill with separate line items) would no longer apply. Instead, insurers offering non-Hyde abortion services would have to send separate invoices, either by mail or electronically, to the insured. The non-Hyde abortion coverage would have to be at least $1/month, and the insured would have to pay two separate bills in order to keep their coverage in force.
The proposed regulations note that a policy could not be terminated due to the insured opting to pay both bills with a single check (although the insurer would then have to manually segregate the money once they received it), but a policy could be terminated for non-payment of premiums if the insured ignored the separate invoices for abortion services. And even for enrollees who have $0 premium plans (due to premium subsidies that cover the full cost of the plan), the insurer would have to send a separate bill for at least $1 each month, to cover non-Hyde abortion services if the plan includes that coverage.
If the rule is finalized as proposed, HHS will enforce it in states that use the federally-run exchange, and they’ll expect states to enforce it in the states that have their own exchanges. The proposed rule notes that if states don’t do so, and if HHS believes that there’s potential mismanagement of federal funds, HHS will step in to enforce the rules on behalf of the state.
HHS estimates that insurers’ cost of compliance with the proposed rule will amount to about $1.6 million annually, split equally between the cost to generate and send the separate invoices, and the cost to receive and process the separate payments. Of course there’s also a cost to 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 be caused if the policy lapses because the insured doesn’t understand that the separate $1 bill does, in fact, need to be paid each month.
It’s not hard to see that insurers in states that don’t require abortion coverage might just decide that offering the coverage is more trouble than it’s worth, and stop doing so.
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.
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 abortion coverage on plans in their exchanges, and 26 states have done so as of 2018. 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) for each enrollee to cover abortion services, and hold it in a segregated account. And HHS is working to make sure this is an onerous process, for both the insurer and the member, with the newly proposed rule requiring two separate invoices and payments each month.
Plans that don’t cover elective abortions
The law also requires each state exchange to include at least one plan that doesn’t cover elective abortions.
The Government Accountability Office (GAO) released a report in September 2014 that called into question whether the ACA’s requirements regarding abortion were being followed. They noted that in five states – Connecticut, Hawaii, New Jersey, Rhode Island, and Vermont – every exchange plan covered elective abortions, running afoul of the requirement that at least one plan not cover them. A website that claims to have combed through plan data for 2019 indicates that there are eight states where all of the available on-exchange plans for 2019 include non-Hyde abortion coverage.
The GAO report also indicated (based on a sample of 18 carriers in 10 states) that many carriers were not itemizing the elective abortion fee on invoices or sending separate bills for it, and that plan details did not always indicate whether a policy covers elective abortion or not. This was part of the impetus for the subsequent regulations and guidance aimed at enforcing Section 1303 of the ACA.
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.
Currently, 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 Amendement’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 17 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.