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Would Obamacare pay for abortions?--Updated (see below the fold)

Yes, we all know that the Senate may change the landscape of the health care debate radically. But for the moment, what I mean by "Obamacare" is the bill presently on the table, HR3200, along with the Capps Amendment much touted in the media as a "compromise" on the issue of abortion.

Let's begin with the fact that HR3200 assumes coverage for "family planning services," which would normally be taken to include abortions. Despite the references in the news to the Hyde Amendment, I can see no reason why the reference to "family planning services" in HR3200 should not be taken, if the bill were passed as-is with no amendment on the abortion issue, to overturn the Hyde Amendment and to make abortion coverage available with federal funding without any special limitation. If my readers have some specific reason why that would not happen, I will be willing to consider it, but prima facie it seems to me that HR3200 or anything similar that talks about coverage for "family planning services" had better not pass unamended, leaving it to the courts to decide on how this fits with or whether it overturns the Hyde amendment.

That being said, the Capps Amendment to HR3200 is a highly dubious solution. According to the amendment (which I have read), federal "affordability credits" (subsidies for people to buy health insurance with) cannot be used towards the actuarial cost of abortion coverage insofar as other federal law (in this case, that would be the Hyde amendment) disallows such coverage. So the Capps Amendment makes reference to other federal law and makes it clear that HR3200 doesn't overturn the Hyde amendment. However, the federal "affordability credits" and any additional premiums paid by employers or individuals can all just go to pay for the premiums of health insurance plans that do cover all abortions, including elective abortions, so in what sense can it be meaningfully said that the federal affordability credits aren't paying for the abortion coverage? It seems rather pointless just to say that we "deem" the federal dollars to be paying for some other part of the coverage--rather like pouring water into the ocean but "deeming" the water to be going to one part of the ocean rather than another.

This is particularly evident in cases where both the affordability credits and private premiums are being paid for at least as much as the cost of the abortion coverage in the premiums. In a hypothetical case like that, the statement that the federal money isn't "going for" the abortion coverage is just that--a statement. It is making no difference to what the federal government pays, and if the individual is getting the abortion coverage "bundled in" rather than deliberately buying it separately, it is making no difference to what the individual or employer pays, either.

One might argue that in the case of individuals so poor that they are paying no significant additional premiums themselves, the accounting claim here would actually have "cash value," as such individuals would get no elective abortion coverage, as is presently the case with Medicare.

But there's a difficulty there, too.

According to the Capps Amendment, the actuarial value of the additional abortion coverage (for abortions for which federal dollars cannot be used) will not be set by the insurance companies. Rather surprising, that. It will be set by the Commissioner, that ubiquitous government personage whose duties and powers are adumbrated endlessly throughout HR3200. He is not permitted to set that actuarial value lower than $12 per person per year, which I must admit (though heaven knows, I'm not an actuary) sounds pretty low to me.

Interestingly, pro-lifers have suggested that, instead of the Capps Amendment, HR3200 be amended to state expressly that "family planning services" does not include abortions, period, and that the plans purchased even partly with federal "affordability credits" will not include abortion coverage. This would leave open the option for people or employers simply to purchase entirely separate insurance supplements for abortion coverage at the price set by the insurance companies. One would think that if the advocates of the "compromise" Capps Amendment were in good faith about the claim that no federal money will go for non-exception abortions, they would welcome this idea. If the coverage were simply purchased privately from the insurance company as an entirely separate policy, its price set by the insurance company, no one could have the slightest doubt as to whether the federal affordability credits were going to pay for abortions. Problem solved. But that's not what the Capps Amendment says, and evidently no one is jumping to seize on this idea of leaving abortion coverage to be negotiated privately as an entirely separate matter between buyers and insurance companies, which is suspicious, to put it mildly.

I think there are several things going on here. One is that the pro-aborts really, really want abortion coverage in the bill and are outraged that it can't be there openly. Since the Capps Amendment was proposed as a "compromise" (Rep. Capps herself made a rather snippy comment about how everybody doesn't agree with the Catholic bishops), it shouldn't surprise us all that much if this "compromise" is what it rather looks like--an accounting dodge whereby abortion coverage will be provided from a premium "pot" in which federal dollars are indistinguishable from private dollars.

I want to add here that no one has tried anything similar with federal employees' health insurance coverage. All this time, and to the pro-aborts' annoyance, everyone has apparently considered that "no federal money for abortion" means that you can't throw federal money into a pot for premiums for a policy that covers abortions and then just declare by a sort of nominalist fiat that that part isn't paying for the abortions, that it's the employee part of the premium that is paying for the abortions. The fact that such an accounting scheme has never been approved for federally purchased health insurance policies before does rather cast doubt on its honesty in this case.

But there is something else that I think is going on, too. HR3200 is a control freak's dream. As I discuss here, the Commissioner apparently gets to decide even on what additional benefits private companies in the "health care exchange" can offer. So nothing is really just going to be left up in the air to be negotiated on the market as a separate, unregulated benefits supplement between purchasers and insurance companies. Probably the advocates of HR3200 are unwilling to call much attention to this fact, but it does constrain their options with regard to abortion coverage. If abortion coverage could be purchased like that, coverage for good benefits (like, I don't know, paying your doctor more than the government fee schedule allows, or paying for medicines or surgeries for which your QALY score doesn't qualify you, or whatever) might also be able to be purchased in that way, apart from the all-controlling power of the Commissioner and the Committee. That, in turn, would limit the ways in which the bureaucrats can control the whole system and keep overall costs down. And we couldn't have that.

Update (8/21/09): Alerted by reading NRLC's analysis of the Capps Amendment, I looked at the amendment even more closely when it discusses the "public option" and found this:

Nothing in this act shall be construed as preventing the public health insurance option from providing for or prohibiting coverage of services described in paragraph (4)(A).

The "services described in paragraph (4)(A)" are the abortions not currently allowed to be covered under Medicaid--elective abortions, in other words. NRLC interprets this to mean that the "public option" will definitely include unlimited abortion coverage. As far as I can tell, one could argue that it doesn't say that. According to this passage, the public option might or might not include it, though it seems entirely plausible that it will do so. But if it does, and if a person is forced into the public option by financial circumstances, it does appear that the person will have to pay the "extra" determined by the Commissioner for the elective abortion services. While I think NRLC may be overcalling things by saying that the public option would definitely include full abortion coverage, the other aspects of the Capps Amendment concerning paying for abortion coverage in (4)(A) with premiums does seem to mean that if that coverage is included, poor people in the "public option" will have to pay that extra bit for it. Which is pretty wild, to put it mildly.

Comments (12)

Question from one who does not know better: would having a separate "abortion coverage" policy cost more than having it rolled into the system(s) erected by HR3200?

The way the Capps Amendment is set up, the Commissioner is supposed to estimate the portion of the premium that is being "counted" as abortion coverage, and he isn't allowed to estimate it at less than $12 per person per year. So the _claim_ will be that a plan that covers abortions "for which abortion coverage is not allowed by federal law" (those not falling into the "three exceptions" categories) costs at least $12 per year more than one that doesn't have that coverage. Or whatever the amount is that the Commissioner estimates as the actuarial value. In practice, though, each plan in the health care exchange will make a separate negotiation with the Commissioner and a separate contract with the Commissioner, so it could happen that in fact a plan that didn't cover abortion would actually happen to cost more than one that did, for whatever reason. The only thing the Capps Amendment mandates is that the Commissioner look at any plan that does cover abortion and make this estimate as to what part of the premiums are deemed to be paying for the abortion coverage. The $64,000 question is, "So what?" What actual difference does that make besides that this number is written down somewhere as an estimated "fact" concerning Plan X?

As I said in the post, the only place I could think of where it might make some actual difference would be if someone were having _nothing_ paid for besides what the federal government is paying for--someone in essence on Medicare. In that case, without that estimated premium (which sounds to me like it could be quite nominal) it sounds like those people would have to be put in a plan that has no abortion coverage beyond the "three exceptions."

But what I keep asking myself is this: Why not just have everybody in a plan like that if they are receiving these federal "affordability credits" and then, if they or their employers want abortion coverage, let them literally buy that as a separate supplemental plan at whatever price the insurance company asks? There is something extremely fishy about the fact that the Capps Amendment was passed _instead of_ a different amendment of that kind, which would really have kept the federal money and the private money strictly separate. And obviously (now I'm realizing perhaps this is your question) that would cost more. But then it _should_ cost more, if the federal dollars really aren't paying in any way, shape, or form for the abortion coverage.

Oh, and as for whether a "bundled" exchange plan that included abortion would cost less than the sum of an exchange plan that didn't include abortion plus an entirely separate, written supplement for abortion purchased privately, I suspect nobody has any idea. I suppose it would depend on how good of a job the Commissioner did with his actuarial estimates for the bundled plan, on what the insurance companies would charge in each case, whether they gave a discount for "bundling" the benefits, etc., etc.

Yeah, sorry I wasn't clearer...what you got to at the end of the first reply and into the second was exactly my question/point. "Nobody knows" was my strong suspicion, but my father raised me Cyniclibertarian.

If we imputed any kind of fiscal responsibility to our government (haha), the fact that it would cost more would be enough to argue against supplemental abortion coverage. I'm curious if anyone is arguing along those lines anyway.

Well, the government is claiming that it isn't paying for the elective abortion coverage, at least if the Capps Amendment passes. This makes the fiscal responsibility argument difficult to press, because of the weird accounting dodge that would be done by just declaring that the federal part of the premiums isn't going for the abortion part of the coverage. But they could make that a whole lot clearer by paying only for whole plans that don't include it and leaving the rest to the market.

As I suggested in the main post, one perhaps slightly surprising reason for a reluctance to do that is that the architects of HR3200 really don't want to leave anything to the market.

I suspect you are dead on correct--the reason they won't leave abortion to a separate private arrangement that someone can buy from an insurance company is because they are going to ban sepatate private arrangements that someone can buy from an insurance company for any service. Does the Heritage analysis show that? It would be helpful to show.

Here's another reason: no one would buy "abortion insurance," and they know it. It would carry a stigma, and the target abortion audience isn't "responsible" enough to buy abortion insurance.

And consider this: the insurance industry and government probably think that abortion is cheaper than childbirth. Their answer to the idea of "why not buy abortion insurance" is "we don't want to charge people for abortion insurance, we want to give them a discount for it!" Where But if they gave people a discount for it, then the federal money supporting the plan would be subsidizing the discount, which means it would be subsidizing the abortion coverage.

In fact, they probably are counting on abortion as a cost-saving measure. Where are we going to get the money to pay for this? Cut down on the hospital costs for births by increasing abortions.

The Hyde Amendment is not relevant to HR 3200. It is strictly limited to funding streams in the annual HHS appropriations bill. The funding streams under HR 3200 are completely separate from that, and are thus not affected in any way by the Hyde Amendment restrictions. That is yet another reason why the Capps Amendment is a phony "compromise", and that's why the pro-life Congressmen unsuccessfully tried to get HR 3200 specifically amended to exclude abortion.

The hidden abortion mandate in HR 3200 comes from the established judicial interpretation of terms like "outpatient services", "family planning", "physicians' services", "preventive services", etc. to include abortion. They don't have to write it explicitly in the bill, because they know that the courts will read it that way.

The blatant abortion mandate comes from the Capps Amendment's requirement that at least one insurance plan in each area of the country include abortion.

I was thinking along the lines of what it would cost the individual to acquire the supplemental abortion insurance and/or the cost to the government to supply/subsidize the additional coverage. It's some weird hybrid of altruistic (see how much we love the poor by rolling it all into one!) and faux-fiscally responsible (see how much money we save by rolling it all into one!)...i.e., par for the course.

Your counter theories of keeping it out of the hands of the free market and driving down costs associated with child birth are truly chilling. My bad night's sleep on your heads. Thanks.

A country stupid enough to allow abortion is a country stupid enough to allow anything.

Funny, that should sound like something obvious.

The Chicken

To be fair (see how hard I'm trying to be fair?) the Capps Amendment expressly states that the Commissioner (makes me wish I were more confident of the spelling of Kommissar) is not permitted in determining the actuarial cost of the abortion coverage part of the premiums to take into account savings from maternity coverage.

For what that is worth.

But to my mind the whole business about the Commissioner's deciding on the actuarial value is very bizarre. Why should _he_ decide how much of the premium is for the abortion coverage instead of the _company selling the insurance_?

Ed Mechmann, I appreciate your comments very much. I had wondered about exactly that: Isn't the Hyde Amendment only _about_ Medicaid, so why would it apply here anyway, since HR3200 is a whole new "thing" with a whole different funding stream? Moreover, the Capps Amendment doesn't name the Hyde Amendment. It just has a phrase like "abortions for which coverage is not allowed under federal law." That's clearly a reference to _some_ other federal law, and most people assume it means the Hyde Amendment, but it doesn't name it.

I had thought of commenting in the main post about the mandate for at least one abortion-covering plan in each area. I consider that outrageous. But I knew all our liberal commentators would instantly come in pointing out that there is also a mandate for one plan that _doesn't_ cover abortion in each area. This same kind of weird combination of meddling in the market and attempted symmetry runs all through the Capps Amendment. For example, the Capps Amendment says that the insurance plans in the exchange cannot discriminate against any doctor or facility for either not providing or providing abortion. In practice, what would be the effect of either of these? Should we pro-lifers be overjoyed that at least each area will have at least one plan that doesn't provide abortion? But what about the mandate for at least one plan that does? Should we be thrilled to death that doctors can't be excluded from insurance company lists for being pro-life, or bothered more by the fact that if someone did try to create a "pro-life" insurance company that only hired pro-life doctors, that would be illegal? One wonders why the Capps Amendment even got into these areas at all.

Matt Bowman asks if the Heritage Foundation has addressed the issue of HR3200's control of extra benefits rather than letting the market determine them. I haven't seen them do so, but I do so in the post I link in the main post, at my personal blog. There I quote a section of HR3200 that discusses the supposed gold-plated or "extra benefits" plans that can be offered within the health care exchange. These are the supposedly private plans. I quote a statement in the bill to the effect that the additional benefits in the best of these are to be offered as "approved by the Commissioner." This indicates total control by the Commissioner even of whatever extra benefits can be offered in the private plans. There is more in the post that you may find interesting as well, but that's a biggie.

The blatant abortion mandate comes from the Capps Amendment's requirement that at least one insurance plan in each area of the country include abortion.

The data I've seen on employer coverage have 48% of private insurers covering elective abortions. When you limit the reason to medical complications in the pregnancy the number is somewhere between 80%-90%. There are four states that restrict private employer insurance to when the mother's life is endangered, but I've read that women in those states can buy additional abortion insurance individually.

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