Recent fights between anti-abortion groups could leave people with the impression that the new health overhaul law expands women's access to abortion. But abortion-rights groups vehemently disagree.
"There are extraordinary things in health care reform for women," says Judy Lichtman, a senior adviser to the National Partnership for Women and Families, which supports abortion rights. "But all, I have to admit, come at the expense of women's abortion rights, and that's very sad."
Timothy Jost, a law professor at Washington and Lee University in Virginia, agrees. "I think across the board this is a bill that is a pro-life bill and is going to lead to fewer rather than more abortions. And I think it's very unfortunate that people who oppose this bill for other reasons are attacking it as an abortion-funding bill, which it definitely is not."
Opponents Push To Fully Exclude Abortions
But abortion opponents are not satisfied with the restrictions on abortion already in the measure, particularly those on abortion coverage in private plans that will be sold in the new marketplaces known as health "exchanges." So they are pushing one particular aspect of the new law. It lets states ban all abortion coverage in the exchanges.
Charmaine Yoest, president and CEO of anti-abortion group Americans United for Life, said her group wasted no time drawing up a model state law to that effect. They sent it out the day after Congress approved the health bill.
"It was a part of the legislation that states could opt out, and so we had a heads-up that this would be a window for us," she said. "So we moved right in to make sure that we could equip states with the tools that they need to have the most effective opt-out possible."
So far at least three states — Missouri, Tennessee and Louisiana — are already moving legislation to ban abortion coverage in the exchanges. And that's even though the exchanges themselves don't have to be up and running until the year 2014.
Treading On Complicated Waters
A full ban would seem to undermine the uneasy truce between abortion rights supporters and opponents that was in place as the new law was being written; that it should neither expand nor contract existing abortion policy. Federal abortion funding is currently allowed in cases of rape, incest or when the life of the women would be endangered by carrying the pregnancy to term.
But where that got complicated was in those new health insurance exchanges, because that's where the federal government would subsidize many people's private policies.
Even if states don’t ban abortion coverage in the exchanges completely, abortion rights advocates say the new federal health law is likely to make abortion less available for many women.
That's because, says Lichtman, until now, "it has been the norm that private health plans provide abortion coverage." But while the new law does allow health plans in the exchange to offer abortion coverage, "it does so in a way that creates serious disincentives to providing the coverage and very serious disincentives for people buying it."
Bill Already Requires A Separate Policy
Under the law, insurance plans can offer coverage for abortion only if they offer it as a separate policy. Individuals or their employers will have to write two separate checks each month, one for the abortion coverage and one for all other coverage. And those premiums will have to be kept in separate accounts.
Law professor Jost says he thinks that will all but eliminate health coverage for abortion in the new exchanges. "This segregation of funds and strict auditing of the funds is going to be a real hassle for insurers; it's going to be a real hassle for consumers," he says. "And markets are going to lead people to the low cost, low hassle solution, which is going to be plans that do not cover abortion."
Yet many women don't realize their plans don't cover abortion until it's too late.
Take D.J. Feldman. In 2008, the federal lawyer had a fetus diagnosed with anencephaly — a birth defect where the brain, skull and spinal column fail to connect. Her doctor said an abortion was medically necessary. But her insurance claim was denied. That's because federal health plans have been barred from offering most abortion coverage since the 1990s.
"Our medical experts determined that you could have carried to term, because your life was not in danger," she quoted from the denial letter. "And by the way, you owe $9,000."
It's a story that could become more common for women buying insurance in the new marketplaces.