An obscure part of the law allows states to restrict abortion coverage by private plans operating in new insurance markets. Capitalizing on that language, abortion foes have succeeded in passing bans that, in some cases, go beyond federal statutes.
“We don’t consider elective abortion to be health care, so we don’t think it’s a bad thing for fewer private insurance companies to cover it,” said Mary Harned, attorney for Americans United for Life, a national organization that wrote a model law for the states.
Abortion rights supporters are dismayed.
“Implementation of this reform should be about increasing access to health care and increasing choices, not taking them away,” said Sen. Patty Murray, (D-Wash.) a member of the Senate leadership. “Health care reform is not an excuse to take rights away from women.”
Since Obama signed the legislation law March 23, Arizona and Tennessee have enacted laws restricting abortion coverage by health plans in new insurance markets, called exchanges. About 30 million people will get their coverage through exchanges, which open in 2014 to serve individuals and small businesses.
In Florida, Mississippi and Missouri, lawmakers have passed bans and sent them to their governors. Most of the states allow exceptions in cases of rape, incest or to save the life of the mother. Insurers still could offer separate policies to specifically cover abortion.
Three other states may act this year — Louisiana, Ohio and Oklahoma. Overall, there are 29 states where lawmakers or public policy groups expressed serious interest, Harned said.
“You are going to see more actions like this,” said Tom McClusky, a lobbyist for the socially conservative Family Research Council.
Before the overhaul became law, five states had limits on private insurance coverage of abortion — Idaho, Kentucky, Missouri, North Dakota and Oklahoma. Abortion rights supporters are concerned that the list is growing as a result of the new federal law.
Murray had joined in voting down a federal abortion coverage ban when the Senate debated health care last year. Now she and other abortion rights supporters worry the same sorts of restrictions could spread from state to state.
“It’s really going to be a patchwork of state laws by the time these exchanges are set up,” said Jessica Arons, director of women’s health at the Center for American Progress, a liberal public policy institute.
Most private health insurance plans cover abortion as a legal medical procedure, but research indicates many women opt to pay directly.
The federal law allows private insurance plans in the exchanges to cover abortion as long as they collect a separate premium. That money must remain apart from public subsidies available to help pay insurance premiums for most customers in the exchanges.
That compromise split abortion foes in Congress and around the country. Anti-abortion organizations including National Right to Life and the U.S. Catholic bishops called it a fig leaf, and continued to oppose the legislation. But Catholic hospitals and many religious orders of nuns supported it.
Abortion rights supporters were cool to the compromise, but it broke a political deadlock threatening the bill.
Anti-abortion Democrats in the House cast critical votes for the legislation after Obama also agreed to an executive order affirming long-standing federal policy against the use of taxpayer funds for abortion except in cases of rape, incest or to save the life of the mother — known as the Hyde amendment.
Tennessee already has enacted a far stricter ban, with no exceptions. Democratic Gov. Phil Bredesen, who allowed it to become law without his signature, said in a statement it “creates a prohibition much broader than that found in current law and could unintentionally negatively impact the quality of health care options for Tennesseans.”
All eyes are now on Florida, where Gov. Charlie Crist will decide soon whether to sign a bill that restricts abortion coverage in that state’s insurance exchange. Florida is a politically diverse state, not known as a bedrock of social conservatism. Crist is running for the U.S. Senate as an independent, after it became clear that he would lose the Republican primary to former state Rep. Marco Rubio.
Crist, who opposes abortion, has indicated he has problems with a part of the bill that would require a woman seeking an abortion to view an ultrasound of the embryo.
“Florida has always been pretty much of a middle-of-the road state,” said Stephanie Kunkel, executive director of Planned Parenthood’s affiliates in the state. “If Florida passes it, it really open up more moderate states to passing these bans.”
Conservatives say they won’t forgive a Crist veto. “You can count him as done if he vetoes this bill before him now,” said McClusky of the Family Research Council.