By N.C. Aizenman
Washington Post Staff Writer
Friday, March 11, 2011; 11:22 AM
A year after its passage, the health-care overhaul is opening fresh battlefields in an old and bitter debate. Almost immediately after the law came into effect, five states passed bills that will prohibit private health insurance plans sold on its new state-based insurance marketplaces from covering abortion, except in dire circumstances such as to save the mother's life.
Now 22 more states are considering similar abortion bills.
The impact of those bills would be limited to individuals and small businesses who buy insurance on the so-called exchanges. But nearly half of those states are also contemplating an even more sweeping proposal: making it illegal for all private plans to cover abortion, regardless of whether they are sold on exchanges. That step, already the law of four states, would affect the type of plan used by the 14.5 million of women ages 18 to 45 - one-fourth of women in that age group - whose insurance is obtained for them by mid-sized and large employers, according to Paul Fronstin of the Employee Benefit Research Institute.
None of the pending state bills would affect plans that very large employers sponsor directly and that are regulated by Congress.
But the scale and scope of the current legislative push is unprecedented, say activists on both sides.
"I don't remember the last time I saw [so many] states try to do one thing on abortion," said Rachel Sussman, who tracks state-level antiabortion efforts for Planned Parenthood Federation of America.
The effort represents a new battleground in the long-running struggle over how much states should regulate abortion. Since the Supreme Court declared the procedure legal in 1973, antiabortion activists have mounted a succession of legislative attacks on its accessibility and funding.
Indeed, the current state-level push to ban abortion coverage in the exchanges is a response to the controversial attempt by drafters of the federal health-care law to ensure that it complies with long-standing congressional policy against using federal dollars to pay for abortions.
That challenge produced a dramatic showdown last year between Democrats opposed to abortion and those who support abortion rights, and the law was saved with a compromise:
Insurers are allowed to include abortion coverage in their exchange plans, but everyone who buys such a plan must make two separate premium payments - one covering the bulk of the policy and another, of as little as $1 per month, for the plan's abortion coverage. Any federal subsidies can be applied only to the first payment.
Antiabortion groups deride that arrangement as little more than an accounting gimmick.
"Money is fungible. . . . It all goes into the same pool," said Mary Spaulding Balch, state legislation director at National Right to Life. So unless states make it a "top priority" to exercise their option to ban abortion coverage on the exchanges, she said, the health-care law will usher in a massive expansion of federal funding of abortion.
Advocates of abortion rights, however, counter that the two-payment rule could lead many insurers to opt against offering abortion coverage in the exchanges because the dual payment system is too cumbersome and consumers may consider it bizarre and objectionable.
And they fear that any additional state-level bans will have ramifications far beyond the plans that are specifically regulated.
"This is part of a larger political effort to discredit abortion as basic health care and make the case that it shouldn't be part of health-care coverage," said Sussman.
It is difficult to predict the effect on women's access to abortion because there's little solid information on how many private insurance plans cover abortion, according to experts at the Guttmacher Institute, a nonprofit reproductive health research center that gathers the most comprehensive data on the subject in the United States.
Statistics on how many women currently use insurance to pay for abortions are almost as murky.
According to a 2008 Guttmacher survey, about a third of women who obtain abortions are uninsured - the population most likely to be served by the exchanges. Another third have Medicaid, the state-federal insurance program for the poor, which restricts abortion coverage to narrow circumstances.
The remaining third of women have private insurance - employer-based coverage or plans they buy themselves. Yet the vast majority still pay for their abortions out of pocket.
The reason is unknown. It's possible their plans do not cover the procedure or have high deductibles. It's also possible they have privacy concerns.
Whatever the case, only 12 percent of women who have abortions pay for them with private insurance.
The largest share, 57 percent, pay out of pocket. About 20 percent use Medicaid. The remainder generally rely on private assistance.
While hardly low, compared with other medical procedures, the price of an abortion during the first trimester - when 90 percent of abortions are carried out - may also be within reach of all but the poorest women: The median cost of terminating a pregnancy at 10 weeks is about $470. The cost rises to $1,500 at 20 weeks.
In many of the states considering abortion insurance bans, avowed abortion opponents control both the governor's office and the statehouse. Analysts predict most will pass a bill by the time the exchanges are rolled out in 2014.
In Virginia, the only state among the 22 whose legislative session has already concluded, a bill to bar abortion coverage from the exchanges died in the Democratic-controlled Senate.
But abortion foes - including two Senate Democrats - used a parliamentary maneuver to enact a controversial new law that reclassifies health centers performing abortions as hospitals, making them subject to more stringent state regulations than those applied to other outpatient clinics.
Olivia Gans, president of the Virginia Society for Human Life, predicted that antiabortion lawmakers would be similarly committed to passing the exchange ban during the next session.
"We don't want to wait until 2014 and lose the opportunity to protect citizens of Virginia from having their tax dollars used for abortions," she said.