E. Limits on Coverage of Abortion Services
Although the ACA contains provisions expected to increase access to affordable health insurance and health services for women, the ACA continues a trend, seen in other federal health care programs, of segregating certain reproductive health services and subjecting them to unique additional requirements and funding restrictions. In addition to religious employer exemptions to contraception coverage requirements, the ACA limits abortion coverage for both public and private plans.
Passage of the ACA in the House could only be assured after guarantees regarding abortion were offered to anti-abortion Democrats. These guarantees included an executive order on abortion coverage under the ACA signed by President Obama directly after the law's enactment. The executive order reaffirms the ACA's application of the Hyde Amendment, which prohibits federal funding of abortions except in the case of rape or incest or to save the life of the woman, to the new health insurance marketplaces and to community health centers that receive federal funding. The ACA, together with this executive order, restricts access to abortion care in a number of ways, including restrictions that go well beyond the scope of the Hyde Amendment. As enacted, the law restricts access to abortion care through funding restrictions, a blanket non- *119 preemption provision, a state opt-out provision, and a non-reciprocal “conscience clause.” Under the ACA, qualified health plans have a choice of whether to provide abortion coverage and cannot be required to provide coverage for abortion care as part of the essential benefits package, and federal funds may not be used to provide coverage of abortion services in any community health insurance options established by the states. Each state exchange, however, must include at least one plan that provides coverage for abortion care (including those abortions allowed under Hyde and those that are not). Qualified health plans providing coverage for abortion services not funded under Hyde must segregate the funds they use for abortion coverage from any federal funds they receive. To ensure that no taxpayer funds are used for non-Hyde abortions, insurers choosing to cover abortion services must collect two payments from individuals receiving federal subsidies, one for the estimated actuarial value of abortion care and one for other services. Other funding restrictions in the bill include a provision banning school-based health centers providing abortion care from receiving new grants to improve school-based health services and a provision restricting new Indian Health improvement funds from paying for non-Hyde abortions.
Additionally, the ACA includes a blanket non-preemption provision, providing that the new legislation does not preempt any state or federal laws regarding the provision or funding of abortion care, including parental notification and consent statutes. The ACA also provides a sweeping, non-reciprocal conscience provision, prohibiting discrimination against individual health care providers and health care facilities that do not “provide, pay for, provide coverage of or refer for abortion,” but provides no similar protections for those facilities that do provide, fund, and refer for abortion care. Finally, the ACA permits states to prohibit qualified health plans participating in their health insurance exchanges from providing abortion services, which over twenty states have already done.
The abortion coverage that is permitted under the ACA has been heavily *120 scrutinized since the law was enacted. Two bills passed the House in 2011 that would have prohibited health care plans whose subscribers receive health care credits under the ACA from covering abortions, except in cases of rape, incest or to save the life of the woman: the No Taxpayer Funding for Abortion Act, and the Protect Life Act. The Senate passed neither bill, and the President has indicated he would veto similar bills. Nevertheless, debate continues over the appropriate scope of abortion coverage under the ACA and the extent to which the law may disincentivize abortion coverage.
Moreover, because the provisions regarding the new health insurance exchanges are not yet in effect, it is unclear what the impact of these restrictions on abortion coverage will be. During congressional debate on the ACA's restrictions on abortion, advocates expressed significant concern that the hurdles imposed by these restrictions would lead insurers to drop coverage of abortion services in part because of the inconvenience of complying with the segregation requirements and the obligation to offer multiple plans. Furthermore, while the exchanges would not include large employers, many advocates were concerned that insurers would eventually drop abortion coverage from large group plans as well because of a kind of “standardizing effect” of the essential benefits package required for qualified health plans on non-exchange plans offered by a given insurer. At least one commentator expressed concern about the significant disparate impact the new abortion restrictions would have on lower-income women, noting that these restrictions do not apply to the largest federal subsidy for health insurance: the $250-million-per-year tax exemption for employer-sponsored health insurance.