Religious Liberty & the Affordable Care Act
by Daniel McConchie & Anna Franzonello
No matter one's opinion on the policy, it should be uncontroversial to observe that President Obama's signature achievement, the Affordable Care Act (ACA), dramatically increases federal control of the healthcare market. The U.S. Supreme Court's decision upholding the ACA's mandate that individuals purchase insurance or be "taxed" leaves many asking how the product they must buy will square with their conscience.
A chief concern for many Christians and people of faith is whether they will be paying for abortion and abortifacient drugs under the law. Unfortunately, the ACA creates several scenarios in which the answer is yes. The ACA is a historic shift away from the federal government's longstanding policy that abortion should not be subsidized as healthcare.
Since 1976, the Hyde Amendment, named for the late pro-life Congressman Henry Hyde, has prohibited federal funds from being used for abortions or insurance plans that cover abortion. Under Hyde, federal programs such as Medicaid do not cover abortion. However, the rider only applies to Labor, Health and Human Services (LHHS) appropriations. Many politicians talked about the Hyde Amendment during the healthcare debate, but the ACA's funding does not go through the LHHS budget. Hence, Hyde doesn't apply; the ACA follows its own rules.
The ACA's Abortion Mandates
One of ACA's requirements is that, by 2014, state-based "exchanges" be established for the purchase of private health insurance. The federal government will provide premium subsidies for those who do not qualify for Medicaid but whose household income is between 100 and 400 percent of the poverty level. Considering that a family of four earning up to $92,200 per year will qualify for this assistance—paid directly from the Treasury to the insurance plan—taxpayer funding under the ACA will be immense.
The ACA permits subsidies to be applied to plans in the exchanges that cover abortions (something Hyde would prohibit), but it currently does not allow these federal dollars to pay for abortions directly. Instead, it mandates that every person participating in the exchanges whose plan covers abortion must pay at least $12 a year into a special abortion fund. Thus, to get around the prohibition against tax dollars paying directly for abortion, the ACA creates a mandate under which private dollars pay directly for abortion.
It will not be easy to avoid paying this abortion premium. Plans outside the exchanges may be cost-prohibitive or provide substantially fewer benefits. Moreover, the ACA restricts notification of which exchange plans cover abortion to the time of enrollment and, even then, only in the summary of benefits. Thus, you can't know whether a particular plan covers abortion until you sign up.
Not every state will have abortion in its exchange plans. During the healthcare debate, Nebraska Senator Ben Nelson, in exchange for providing the 60th vote necessary to overcome a filibuster, bargained for a provision enabling states to "opt out" of allowing insurance plans in their state exchange to cover abortion. (He also negotiated a handsome cash handout for his home state, known as the Cornhusker Kickback, but that was later stripped out.)
States must enact a separate piece of legislation in order to opt out, and, so far, sixteen states have done so, thereby protecting their citizens against the covert abortion premium mandate. With two years to go until the exchanges come online, there is still time for other states to act.
But not all states will. And politically liberal states such as California and New York may not even have any plans without abortion coverage. Citizens of these states may be put in the untenable position of having to choose between paying directly into the abortion fund, foregoing health insurance altogether (and being "taxed"), or moving.
And this is not the only abortion concern in the ACA. Other funding streams lack any statutory prohibition on direct abortion funding. This became apparent in 2010 when funding was approved for "high-risk pool" plans that contained abortion coverage. Only because of the vigilance of pro-life groups was this corrected by a regulation—a move the Obama administration noted did not set a precedent for its future actions.
Even the ACA's prohibition on direct federal funding for abortion in the exchanges is not permanent. The law is set up so that if the Hyde Amendment—a vulnerable yearly rider—is ever not renewed, this restriction will vanish.
The ACA's Contraceptive Mandates
Another serious violation of conscience rights is about to hit the market. Nearly all private health insurance plans are required to fully cover "contraceptives" beginning as early as August 2012.
The ACA requires even those plans that don't participate in the exchanges to cover "preventive services" without a co-pay. Instead of defining "preventive services," Congress delegated that determination to an agency in the Department of Health and Human Services (HHS). In turn, HHS, demonstrably influenced by Planned Parenthood, defined "preventive services" to include "all Food and Drug Administration approved contraceptives."
The broad definition includes the drug ella, which works the same way as the FDA-approved abortion drug RU-486: by blocking progesterone, a hormone necessary in pregnancy. ella's inclusion contradicts the assurance of Senator Barbara Mikulski (Maryland) that "abortion coverage" would not "be mandated in any way" under the preventive services provision she authored.
Other FDA-labeled "contraceptives" have known life-ending effects. For example, Plan B and IUDs can work after conception to block the implantation of a developing human embryo.
HHS created a very narrow exemption to the mandate. To qualify, a "religious employer" must be insular, primarily hiring and serving only people of its faith. Many Christian organizations are ineligible precisely because the Christian duty is to serve all people, regardless of faith.
After intense public outcry, HHS offered a one-year "safe harbor" exemption from complying with this mandate, but only to certain religious non-profit organizations; it does not apply to for-profit employers or to non-religiously affiliated non-profits that may object. And the "safe harbor" is merely an extended expiration date on the conscience rights of those it "protects," anyway.
The HHS mandate is more sweeping than any of the coercive "contraceptive mandate" measures enacted at the state level. But it has brought national attention to what is an ongoing, pervasive problem. The mandate is symptomatic of the evolving mantra of the abortion movement. No longer "my body, my choice" but "your money, your conscience, my choice."
Abortion advocates understand that establishing that there is no freedom of conscience for healthcare payers on "contraception" sets a legal precedent to say there is no freedom of conscience on "abortion": the same legal principle is attacked in both cases. This is why many Americans who do not object to contraception per se have joined the fight against the HHS mandate.
Ways to Fight Back
The ACA's threats to conscience are real and imminent, but people of faith should not despair. There are ways of addressing the problem.
One avenue is the courts. The Supreme Court ruling on the "individual mandate" is not a declaration on the lawfulness or constitutionality of the abortion premium and contraception mandates. Dozens of cases against the HHS mandate are already being litigated for its violation of First Amendment rights and other federal laws. These lawsuits recall what Thomas Jefferson wrote to the New London Methodists in 1809, "No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority."
Another avenue is legislation. The "repeal and replace" strategy (already underway in the House) would enable people of faith to seek better, more comprehensive conscience protections in whatever new healthcare proposals are advanced. Other bills seek to correct the ACA's existing problems. The Protect Life Act, already passed by the House with bipartisan support, would comprehensively prohibit funding for abortion and abortion coverage, align conscience protections with existing federal law, and guarantee respect for state conscience laws. The Respect for Rights of Conscience Act would protect the right to provide, purchase, or enroll in healthcare coverage consistent with one's religious beliefs and moral convictions.
The ultimate success of these legislative efforts depends on the November elections. The conscience issues in the ACA are a real and present danger to Christians and people of faith. It is vital that we rise to the occasion and defend our freedom while we still have a fighting chance. •
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