October 25, 2013 MEMORANDUM To: Diocesan Pro-Life Coordinators State Catholic Conference Directors From: Richard M. Doerflinger Associate Director, USCCB Secretariat of Pro-Life Activities Re: Finding a health plan on the state exchanges that excludes abortion coverage The USCCB Secretariat of Pro-Life Activities has received a number of requests from concerned Catholics who are anxious to know how they can find a health plan without elective abortion coverage on the state exchanges authorized by the Affordable Care Act (ACA). I imagine some of you have received these requests as well. At the outset, it is important to note that this memorandum is dealing with deliberately induced abortions performed after implantation that is, the procedures recognized as abortions by state and federal laws, whether performed by surgery or by drugs such as RU-486. We continue to seek recourse from the HHS preventive services rule requiring almost all health plans to cover drugs and devices approved by the FDA as contraceptives, including some that may act as abortifacients very early in pregnancy; but that threat to conscience is a distinct problem legally and is not addressed here. The potential pool of Americans interested in the abortion coverage question is quite large. When we polled Americans on issues relating to health care reform in 2009, 56% of respondents opposed (and only 32% supported) measures that would require people to pay for abortion coverage in their premiums. An even larger majority of 68% said that if the choice was theirs, they would not want abortion covered in their own insurance policy (including 69% of women, and 62% of those who supported health care reform efforts). Yet the reality in the new exchanges is complex, and it can be very difficult to find out whether a given plan covers elective abortions. There are three ways we can help Catholics and other pro-life Americans find a health plan that does not violate their conscience on abortion. First, we can help find out which health plans have chosen to exclude or restrict abortion coverage, and share that information with others. Generally (with the notable exceptions
2 listed below), each insurer on the exchanges is free to decide under what circumstances, if any, it will cover abortion (42 U.S.C. 18023(b)(1)(A)). Second, we can support federal legislation to make it easier for people to find out which plans include or exclude abortion. Currently the Affordable Care Act forbids plans to reveal their policy on abortion coverage except as part of the summary of benefits and coverage explanation, at the time of enrollment when people are already signing up for a plan; it also forbids them to tell enrollees how much of their premium payment will go into a separate account to pay for abortions (42 U.S.C. 18023(b)(3)). Recently Rep. Chris Smith introduced an Abortion Insurance Full Disclosure Act (HR 3279) to reverse these policies and require transparency on abortion coverage; we should urge all members of Congress to support this bill. Third, we can help inform people about the abortion exclusions created by state or federal laws. Some states have acted to exclude most abortions from all health plans on their exchanges; and in other states, the ACA itself requires at least one multi-state plan to exclude most abortions. These are explained below. This information is provided as general background, and is not intended to take the place of more specific advice from your own diocesan counsel. A. State Abortion Opt-Outs In 23 states, most abortions are excluded from all plans on the exchange by state law. The states authority to enact such abortion opt-outs, without preemption by the federal ACA, is recognized in the ACA itself (42 U.S.C. 18023(a) & (c)). This exclusion governs the exchange regardless of whether the state established its own exchange, or left that task to the federal government. The 23 states are: Alabama Arizona Arkansas* Florida Idaho Indiana* Kansas* Kentucky* Louisiana* Mississippi Missouri* Nebraska North Carolina North Dakota Ohio Oklahoma* Pennsylvania* South Carolina* South Dakota Tennessee* Utah Virginia* Wisconsin* The 12 states with an asterisk (*) also have at least one multi-state plan that should exclude abortions except for cases of danger to the mother s life or rape/incest. That issue is discussed below.
3 Some of these states exclude abortion from all health plans sold in the state (not only plans on the exchange), usually allowing abortion coverage to be purchased only as an optional rider funded by those who choose the coverage. Some also exclude abortion from health coverage for state employees. And the states differ in the exceptions they make for limited circumstances, in which insurers may cover abortions as part of an overall health plan (which is not to say that they must offer such limited coverage). This is how the 23 states fare on exceptions: No exception, 2 states; life of the mother only, 6 states; life/rape/incest, 10 states; life and serious, long-lasting physical health damage (or equivalent words), 2 states; similar life and health exception, plus cases of rape and incest, 2 states; life/rape/incest/serious physical health/fetal defect, 1 state. To see how your state handles these variables, see this chart from the National Right to Life Committee: www.nrlc.org/uploads/ahc/insurancecoverageabortionregs.pdf B. Federally Approved Multi-State Plans ACA requires the federal Office of Personnel Management (OPM) to approve at least two multi-state health plans. These plans are offered by private insurers, but screened and approved by the federal government to be offered across state lines and ultimately (by the fourth year that a given insurer contracts with OPM) in every one of the 50 states. So far OPM has approved only one such multi-state plan, offered by Blue Cross/Blue Shield (BC/BS), which will be available in at least 30 states in 2014 (see OPM link provided below) and in all 50 states beginning in 2017. The ACA (42 U.S.C. 18054(a)(6)) provides: In entering into contracts under this subsection [dealing with oversight by OPM], the Director [of OPM] shall ensure that with respect to multi-state qualified health plans offered in an Exchange, there is at least one such plan that does not provide coverage of services described in section 18023(b)(1)(B)(i) [that is, abortions ineligible for federal funding under the current Hyde amendment]. So in each of these 30 states, we believe there should be a multi-state plan that excludes abortion coverage except for cases of danger to the mother s life, rape or incest. Whether this is actually taking place in each state remains to be proved. As noted above, 12 of these 30 states have their own law excluding most abortions from all plans on the exchange; the multi-state plan must obey that law if one exists. But regardless of whether a given state has such a law or not, the multi-state plan must not cover abortions except for cases of life endangerment or rape/incest (with the caveat that even life endangerment and rape/incest abortions must be excluded in a particular state if that state s law requires the exclusion). In 18 states and the District of Columbia there is no state law limiting abortion coverage, so the only current legal requirement for a relatively abortion-free plan of which we are aware is that state s multi-state plan (which should be BC/BS, as that is the only multi-state plan approved so far), though other plans may exclude abortion if the insurer chooses. Those 18 states are:
4 Alaska California Colorado Delaware Georgia Illinois Maine Maryland Massachusetts Michigan Montana Nevada New Hampshire New Mexico New York Texas Washington West Virginia More details on the multi-state plans are available here: www.opm.gov/healthcare-insurance/multi-state-plan-program/opm-multi-state-planprogram-fact-sheet/ A glance at this web site reveals one source of possible confusion: Across the 30 states, OPM says it has approved a grand total of 154 plan options (ranging from two options in a number of states, to 36 in Alaska). These seem to be variations by regional provider network, and/or by premium amount and deductible (e.g., bronze vs. silver or gold plans). We believe that all these options should be treated as part of just one Blue Cross/Blue Shield multi-state plan, therefore excluding elective abortion under all options. However, it is not yet clear whether that is the way OPM interprets its obligation to ensure that at least one plan in each state excludes elective abortions, so further research on this point is needed. We will be researching this issue further at the federal level, and would greatly appreciate any information you can obtain about the way abortion is being treated by multi-state plans in your state. Finally, some state exchanges may also have a Blue Cross/Blue Shield plan that is not part of the multi-state plan program, and therefore may not be covered by the federal abortion exclusion. Only plans marked as a BC/BS multi-state plan or MSP will qualify. C. Other States This leaves 9 states where it appears, from the information available to us, that neither state nor federal law currently guarantees the availability of even one relatively abortionfree plan (though insurers are free to offer such a plan if they choose): Connecticut Hawaii Iowa Minnesota New Jersey Oregon Rhode Island Vermont Wyoming
5 These states could change their situation either by passing a state abortion opt-out law, or by encouraging a carrier like Blue Cross/Blue Shield to extend its multi-state plan to that state. We hope this information is helpful, and we would welcome hearing about any further clarification you learn about in your own state.