“The president’s health-care law authorized massive subsidies to assist millions of Americans to purchase private health plans that will cover abortion on demand. In other words, hard-earned taxpayer dollars are now being used to pay for elective abortions. This is simply unacceptable.”

— Rep. Virginia Foxx (R-N.C.), House debate, Jan. 22, 2015

The argument that the Affordable Care Act, a.k.a. Obamacare, provides federal subsidies for abortions came up several times during the House debate on an antiabortion bill.

The bill would prohibit using federal funds for any abortions or for any health plans that cover abortions. Under Obamacare, federal funds can be used to cover abortions for pregnancies caused by rape or incest, or that endanger the mother’s life. But no federal subsidies for premiums can be used for elective abortions. The House debate centered on whether this restriction is being enforced, and whether additional protection for taxpayers are needed.

There often is overheated rhetoric in the abortion debate that cannot be fact-checked. (The Fact Checker previously examined Democrats’ claims following the Hobby Lobby ruling.)

The bill’s opponents, who support abortion rights, say the system works and that the measure would unnecessarily restrict women’s private insurance choices. Lawmakers who oppose abortion rights don’t buy it; they say the system is just an accounting gimmick. The goal of this fact check is not to relitigate the debate but to examine evidence to support the above statement, which was repeated throughout the debate.

Foxx, one of the lawmakers arguing for the bill, was among several Republicans who claimed federal subsidies are paying for elective abortions. Does this accurately portray how abortions are covered under Obamacare?

The Facts

The House passed H.R. 7, No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2015, on the anniversary of the Supreme Court’s 1973 Roe v. Wade decision. The bill was a watered-down measure that the House took up at the last minute after GOP leaders pulled an initial, more restrictive bill.

Public funding for abortions is intricately structured. Under the Hyde Amendment, federal funds can’t be used for elective abortions under Medicaid-funded plans. Some states do pay 100 percent of the cost of elective abortions without passing on any cost to the federal government.

Under Obamacare, health insurance plans could cover some or all elective abortions, but they can’t use federal tax credits and subsidies to offset the cost. Insurance providers that cover elective abortions must charge consumers separately and deposit the money into a separate account that contains no federal money. Providers need to bill enrollees separately for elective abortions by itemizing them separately in monthly bills or sending separate bills.

States can pass laws to ban or restrict health plans from providing coverage for elective abortions. In 2014, 23 states restricted coverage for these procedures. There were 1,036 plans in 28 states that provided some or all coverage for elective abortions.

In a speech to Congress and a subsequent executive order, President Obama gave assurances that federal subsidies would not be used to cover elective abortion services. He ordered Health and Human Services and the Office of Management and Budget to issue a guideline for states so they can comply with billing and funding segregation requirements.

Obama’s not keeping his promise, say supporters of H.R. 7. Staffers for Foxx and two of the other lawmakers who made similar claims — H.R. 7 sponsor Rep. Chris Smith (R-N.J.) and Rep. Ann Wagner (R-Mo.) — pointed to a September 2014 Government Accountability Office report. At the request of GOP leaders, the GAO examined whether health plans were following the elective abortion billing requirements.

GAO picked 18 plans in 10 states with no laws restricting abortion coverage as a non-probability sample representing a quarter of all health plans that cover elective abortions. GAO found 17 of 18 issuers were not separately billing consumers. The one remaining issuer said its bills show there is a charge “for coverage of services for which member subsidies may not be used.”

These issuers did not give blanket coverage for all abortions. One covered abortions that a health-care provider determines necessary, and two limited coverage to no more than one elective abortion a year. All 18 issuers had payment requirements such as co-pays, deductions and out-of-pocket costs.

The report did not examine whether the providers were illegally using federal subsidies to pay for elective abortion services. In response to the report, HHS released a new set of regulations to clarify billing and funding segregation requirements.

Experts say the GAO’s findings do not necessarily mean insurance providers are inappropriately using federal subsidies to cover abortion services. There is no government or industry agency tracking insurers’ compliance, making it impossible to know whether providers are following the law, they said.

“It’s really not clear how these different plans are being operationalized,” said Alina Salganicoff, Kaiser Family Foundation’s director of women’s health policy.

The GAO report found premium amounts collected from elective abortion services ranged from 51 cents to $1.46 per enrollee per month. To put this in context, the national average premium for a 40-year-old person purchasing coverage through the marketplace was between $224 to $270 per month, according to the Kaiser Family Foundation. (An earlier, non-age-specific average monthly estimate was $241.) Even if the maximum charge ($1.46) was added to the cheapest health plan ($224), the elective abortion surcharge is less than 1 percent of the monthly bill.

The key point made by lawmakers and advocacy groups who oppose abortion rights is that money is fungible, and that it doesn’t matter exactly how the money is being collected. A dollar is a dollar, they say, and every dollar paid to an insurance provider in the marketplace ultimately goes into collective risk pools that are used to run government-subsidized health insurance, so taxpayers are effectively paying for elective abortions.

“The point is the federal subsidies provided for those 1,036 plans are funding abortion just as much as the private funds contributed by the individual. That is consistent with the commonly held understanding that money is fungible and the funds received by the insurance company are used to pay all benefits,” Sheridan Watson, Foxx’s communications director, wrote to The Fact Checker.

(Update: A further comment from Smith appears after the Pinocchio rating.)

The Pinocchio Test

The GAO’s report found that the insurers it studied were not following billing requirements. But experts say that does not necessarily mean the providers were illegally using federal subsidies for abortions. Even if they were, Foxx’s statement that Obamacare authorized “massive” subsidies is an exaggeration. Based on the estimates above, abortion charges would range from 0.2 percent to 0.65 percent of an enrollee’s monthly bill.

The claim that “hard-earned taxpayer dollars” are paying for abortions “on demand” implies that taxpayers foot the abortion bill for any woman who requests one. But in reality, some providers still imposed their own restrictions on which abortions to cover, and all 18 issuers had payment requirements, such as out-of-pocket costs and co-pays.

Lawmakers like Foxx who oppose abortion rights discredit the billing and funding separation requirement for elective abortion services. Billing doesn’t matter, they say, because federal tax dollars used for subsidies pay for everything in a health plan. This is an opinion, and something that can’t be fact-checked. But to say that massive federal subsidies are paying for abortions on demand is not an accurate portrayal of this complex issue, and the facts in the GAO report do not support this argument.

Three Pinocchios

Update: Rep. Smith provided the following response to this fact check.

Congresswoman Virginia Foxx and I were on absolute bedrock when we argued last week during the House floor debate in favor of the No Taxpayer Funding for Abortion Act that the President’s health care law authorized massive subsidies to assist millions of Americans to purchase private health plans that cover abortion on demand.

Conspicuously missing from the Washington Post Fact Checker’s incomplete report and egregiously flawed conclusion was robust analysis of what the President actually pledged in his highly public executive order promising to extend the Hyde Amendment to the Affordable Care Act.

Readers expect—and deserve—much more from the Post.

In order to gain the votes of several pro-life holdout congressional democrats needed for passage of the Affordable Care Act, President Obama issued an executive order on March 24, 2010 that said: “the Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to newly created health insurance exchanges.”

The Hyde Amendment—named after the late Congressman Henry Hyde of Illinois—is current law and prohibits federal funding to any health insurance plan that includes abortion except in the cases of rape, incest or to save the life of the mother.  The Hyde Amendment, however, only legally applies to health programs administered under the Labor, Health and Human Services, and Education, and related Agencies Appropriations Act, including Medicaid and the Children’s Health Insurance Program (CHIP).

Because the health care exchanges and other programs authorized and appropriated under the Affordable Care Act are separate from all other appropriations laws, the President’s promise to extend the Hyde amendment to the “newly created exchanges” was the game changer.  The President got the votes of several pro-life democrats needed for passage.

Recent history now shows the President’s solemn promise to extend Hyde to the Affordable Care Act was a lie.

While the Hyde Amendment prohibits federal funds to any health plan that includes abortion except for rape, incest or to save the life of the mother, the Secretary of the Treasury pursuant to notice by the Secretary of Health and Human Services, is today making monthly advance payments with U.S. taxpayer funds to insurance companies or to exchanges to pay for health insurance plans that subsidize abortion on demand.

It couldn’t be more clear—the President is not extending the Hyde Amendment to the “newly created exchanges”.

Moreover, an extensive audit released last September by the Government Accountability Office (GAO) found that 1,036 Affordable Care Act exchange plans had abortion secretly embedded in the plan.  If the Hyde Amendment truly had been applied the number of plans with elective abortion coverage would be zero.

We live in an age of ultrasound imaging—the ultimate window to the womb and the child who resides there.  We are in the midst of a fetal health care revolution, an explosion of benign interventions designed to diagnose, treat and cure the precious lives of these youngest patients.  We also know unborn children, at least by 20 weeks, or about 6 months, feel horrific pain while being aborted.

Because of this, Americans have consistently demanded—and now in ever-growing numbers—that public funds not pay for abortion. The Marist Poll released this month found that 68 percent of Americans oppose taxpayer funding for abortions, and that includes 69 percent of women; 71 percent of the millennials. The younger generation knows that we cannot build a better future by paying for the destruction of the most vulnerable among us.

(Chris Smith, a representative from New Jersey,  is the author of HR 7, the No Taxpayers Funding for Abortion and Abortion Insurance Full Disclosure Act.)

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