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Abortion Coverage and Health Reform: Restrictions and Options for Exchange-Based Insurance Markets

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MAGDA_FORMATTED[1].DOCX (DO NOT DELETE) 4/30/2012 5:34 PM ABORTION COVERAGE AND HEALTH REFORM: RESTRICTIONS AND OPTIONS FOR EXCHANGE-BASED INSURANCE MARKETS MAGDA SCHALER-HAYNES, ARINA CHESNOKOVA, CYNTHIA COX, MARLA FEINSTEIN, AMANDA SUSSEX AND JULIA HARRIS* INTRODUCTION ........................................................................................................................ 324 I. BACKGROUND: ABORTION FREQUENCY AND FINANCING ............................... 327 A. Frequency and Types of Abortion ............................................................................. 330 B. The Approximate Price of an Abortion ..................................................................... 330 C. Health Insurance Coverage Patterns in the United States ......................................... 331 1. Private Health Insurance ..................................................................................... 331 2. Insured Women Often Forgo Coverage for Abortion Services ........................... 333 3. Public Health Insurance ...................................................................................... 334 D. Provider Subsidies and Private Donations ................................................................ 336 E. Abortions Funded Through Borrowed Money .......................................................... 337 F. Forgone Abortion Due to Inability to Pay ................................................................. 337 II. THE HYDE AMENDMENT ............................................................................................ 337 III. DIVERGENT ABORTION COVERAGE RESTRICTION PROPOSALS CONSIDERED IN THE HEALTH REFORM DEBATE................................................. 339 A. The Capps Amendment ............................................................................................. 341 B. The Stupak-Pitts Amendment ................................................................................... 342 IV. SOURCES OF ABORTION COVERAGE RESTRICTIONS IN HEALTH REFORM: THE ACA, THE EXECUTIVE ORDER AND THE REGULATIONS ........ 344 A. The ACA Abortion Coverage Restrictions ............................................................... 346 1. Segregated Premium Collection ......................................................................... 348 2. Separate Accounts .............................................................................................. 349 3. Abortion Benefit Pricing ..................................................................................... 350 4. Coverage Information for Enrollees ................................................................... 351 5. Non-discrimination Protection for Refusal to Provide Abortion Services .......... 352 6. Preemption .......................................................................................................... 352 7. Emergency Services and Federal Civil Rights Laws .......................................... 353 8. Multi-State Plans ................................................................................................ 353 9. One-sided Protections ......................................................................................... 353 B. The Executive Order ................................................................................................. 353 C. The Pre-Regulatory Model Guidelines ..................................................................... 356 1. Accounting Guidelines for Insurance Carriers .................................................... 356 2. State Obligations: Compliance and Enforcement ............................................... 357 D. The HHS Final Rule Regarding Establishment of Exchanges and Qualified Health Plans Issued March 2012 ............................................................................... 358 V. POST HEALTH REFORM LEGISLATION: FURTHER RESTRICTIONS ON ABORTION COVERAGE ............................................................................................... 358 Published by Penn Law: Legal Scholarship Repository, 2012 MAGDA_FORMATTED[1].DOCX (DO NOT DELETE) 4/30/2012 5:34 PM 324 UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE [Vol. 15 A. Snapshot of the States: New and Old Laws Restrict Exchange-Based Abortion Coverage ................................................................................................................... 359 1. Limited Exceptions to State-Based Coverage Bans ............................................ 359 Utah: The First Exchange-Based Abortion Coverage Ban in Effect................... 360 Rhode Island: A Permanently Enjoined Ban ...................................................... 361 The State of Washington: The Only Abortion Coverage Mandate Proposed to Date ......................................................................................................... 362 Riders: Often Mentioned but Hardly Offered ..................................................... 362 Kansas: A Court Challenge to the Kansas Law .................................................. 364 Model Legislation for States from Americans United for Life ........................... 365 B. Federal Abortion Coverage Legislation Introduced After Health Reform ................ 366 VI. ABORTION COVERAGE AND THE ESSENTIAL HEALTH BENEFIT PACKAGE ........................................................................................................................ 368 A. Mandatory Benefits under the ACA .......................................................................... 370 B. Women‘s Health and the Essential Health Benefits Package .................................... 370 C. Benefits Beyond Those Required in the EHB ........................................................... 371 VII. STATE OPTIONS TO SUPPORT EXCHANGE-BASED ABORTION COVERAGE ..................................................................................................................... 372 A. Maintain Individual and Small Group Health Insurance Markets Outside State- Based Exchanges ....................................................................................................... 373 B. Streamline Payment Instruments ............................................................................... 373 1. Payment Mechanisms ......................................................................................... 374 C. Ensure Confidentiality Protection for Coverage and Care Decisions ....................... 375 D. Consider State Level Abortion Rights and Equal Protection Laws in the Context of the New Federal Restrictions ................................................................................ 376 E. Provide Support and Guidance to Industry ............................................................... 376 F. Consider the Need For and Viability of an Abortion Coverage Mandate ................. 377 1. The Mechanics of Benefit Mandates Post-ACA ................................................. 378 G. Structure the Exchange to Segregate Funds .............................................................. 381 H. Exempt Abortion Coverage from Requirements that Multi-State Plans Offer Uniform Benefit Packages ........................................................................................ 382 I. Finance Exchange-Based Abortion Coverage ........................................................... 382 J. Setting the Premium for Abortion Coverage: an Estimate for New York State ........ 382 VIII. CONCLUSION ................................................................................................................. 386 INTRODUCTION On March 23, 2010, President Obama signed the Affordable Care Act (ACA) into law.1 * Magda Schaler-Haynes, health policy consultant; Lecturer of Health Policy and Management, Mailman School of Public Health, Columbia University. JD, Columbia University School of Public Health; MPH, Columbia University School of Law. Arina Chesnokova, Research Associate, PolicyLab, The Children‘s Hospital of Philadelphia. MPH, Mailman School of https://scholarship.law.upenn.edu/jlasc/vol15/iss3/2 MAGDA_FORMATTED[1].DOCX (DO NOT DELETE) 4/30/2012 5:34 PM 2012] ABORTION COVERAGE AND HEALTH REFORM 325 This health reform legislation was a signature presidential initiative designed to expand access to health insurance for some 52,000,000 uninsured and 29,000,000 underinsured Americans.2 In addition to broad coverage expansions, the ACA institutes restrictions poised to disrupt longstanding coverage for abortion services in private health insurance markets across the United States.3 This article addresses abortion coverage restrictions introduced in health reform, and explores the impact of those restrictions on markets inside and outside newly created health exchanges. Under the ACA, federal subsidies to purchase health insurance will be made available to people with incomes above Medicaid eligibility and up to 400 percent of the federal poverty level (FPL). These individuals will use subsidies to purchase private health insurance through health insurance exchanges established by the ACA. The ACA simultaneously expands and restricts coverage—new subsidies will facilitate the purchase of health insurance, yet no subsidy may be used to purchase insurance coverage for most abortion services. Although some experts maintain that access to safe, legal abortion is essential to the continuum of comprehensive health care,4 abortion remains at the center of political controversy. The right to abortion has been challenged but
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