Q. Do ACA-compliant health insurance plans cover abortion?
A. Some do, and some don’t. They are not required to, and in some states, they are not allowed to. Here’s a summary of how the ACA addresses abortion, and how the rules have been implemented thus far.
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.”
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 25 states have done so. Most of those states limit their ban to coverage for elective 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 eight 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 25 states that have restricted abortion coverage in the exchanges, ten of them have taken the legislation even further, and ban coverage for elective abortions even on plans 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 for each enrollee to cover abortion services, and hold it in a separate allocation account. The ACA requires this separate fee to be at least $1 per month, but 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.
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 has called into question whether the ACA’s requirements regarding abortion are 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. (Connecticut, and Rhode Island, have since resolved the problem, but it remains an issue in Vermont, New Jersey, and Hawaii.)
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.
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.
In January 2014, the U.S. House passed HR7, which would have banned all exchange subsidies for any health plans that cover elective abortions. HR7 did did not advance beyond the House in 2014, but was reintroduced in the House in 2015, and passed once again in January 2015. It did not advance in the Senate, but could be considered again in 2016.
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 obtain it in the exchanges in more than half the states, and outside the exchange in 40 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.