Why Huffington Post is Wrong on Abortion in the Affordable Care Act
By Legal Staff
Wednesday, April 4th, 2012

On April 2, the Huffington Post ran an article titled:  Obamacare ‘Abortion Surcharge’:  The Facts Behind the Rumor.  In the article, the author attempts to rebut assertions made by pro-life Americans about the “abortion premium mandate” nestled within the web of anti-life provisions in the Affordable Care Act.  However, as explained below, pro-life outrage over this provision is justified.

Below is a point-by-point rebuttal of the claims in Huffington Post:

Huffington Post: “Rep. Chris Smith (R-N.J.) recently kicked a bees’ nest of Catholics and anti-abortion activists when he asserted that Obamacare contains an ‘abortion surcharge and a secrecy clause’ that forces ‘pro-life Americans … to pay for other people’s abortions.’”

AUL: Rep. Smith is not making a novel assertion.  In fact, AUL, other pro-life organizations, and members of Congress were aware of the “abortion premium mandate” in the Affordable Care Act at the time that the provision was drafted, and alerted the public.  Further, AUL joined lead counsel Bioethics Defense Fund and other pro-life organizations to submit an amicus brief to the United States Supreme Court challenging the abortion premium mandate’s constitutionality.

Huffington Post: “In fact, the policy does not require anyone who does not want abortion coverage to pay for it.”

AUL: This is patently false.  If an individual is enrolled in a plan that covers abortions— unintentionally, through employment, or by choice—that individual must pay the separate abortion premium, regardless of whether they want abortion coverage or not.  The law does not provide a means for individuals to “opt-out” of paying the abortion premium, and it prohibits plans from advertising that an abortion premium is required under their plan.  For an illustration of how the “abortion premium mandate” will work in reality, please see the Washington Times opinion piece, “Confronting the Abortion Mandate.

Huffington Post: “If a state decides it does want to have health plans that cover abortion services on its exchange, and if a woman chooses one of those plans, then she has to pay a separate fee of at least $1 to a separate account for that coverage in order to make sure no federal dollars are used to support abortion services” (emphasis added).

AUL: The Affordable Care Act does not create a system whereby states “decide” to include health plans that cover abortions within their Exchanges, and thereby permit those plans to receive federal subsidies.  It is the other way around—a state must affirmatively act to prohibit plans that cover abortions from participating, and enact a new law to establish this prohibition.  This system, in which the federal government requires states to take an additional step to prevent taxpayer subsidization of abortion coverage within its state, is a radical departure from the federal “status quo.”  The Hyde Amendment and laws implementing other federal programs such as the Federal Employee Health Benefits Program (FEHBP) prohibit federal subsidies from supporting insurance plans that cover abortions, regardless of whether the federal dollars are used to directly pay for abortions.  In addition, an opt-out law enacted in a state will not prevent citizens of that state from having their federal tax dollars subsidize insurance plans that cover abortions in other states.

Further, the premium segregation requirement in the ACA is dependent on the continued existence of the Hyde Amendment. In other words, if Congress ever fails to add the Hyde Amendment to the yearly Labor, Health & Human Services (LHHS) Appropriations Bill — an omission the abortion lobby actively fights for — insurance plans that cover abortions within state Exchanges will be permitted to directly use federal subsidies to pay for abortions.

Huffington Post: “For people who opt into a health plan that covers abortion, the Affordable Care Act requires that health plans ‘provide a notice to enrollees’ at the time of enrollment that their plan includes the surcharge, but those plans are not allowed to advertise the specific surcharge. This is the aspect of the policy that Smith calls a ‘secrecy clause.’”

AUL: Here is what the law says:

(3) RULES RELATING TO NOTICE.—‘‘(A) NOTICE.—A qualified health plan that provides for coverage of [abortions other than in cases of rape, incest, or the life of the mother] . . . shall provide a notice to enrollees, only as part of the summary of benefits and coverage explanation, at the time of enrollment, of such coverage.

‘‘(B) RULES RELATING TO PAYMENTS.—The notice described in subparagraph (A), any advertising used by the issuer with respect to the plan, any information provided by the Exchange, and any other information specified by the Secretary shall provide information only with respect to the total amount of the combined payments for [abortions other than in cases of rape, incest, or the life of the mother] . . . and other services covered by the plan. [Emphasis added].

What is the purpose of only permitting notice of abortion coverage to enrollees at the time of enrollment (when they have already selected a plan or a plan has been selected for them by their employer), and specifying that the notice can only be part of the summary of benefits and coverage explanation, if not to hide the plan’s abortion coverage?  Further, why the restrictions on advertising the amount of the abortion premium, if not to hide that required payment?  The inclusion of these restrictions in the law can only be explained one way—as a deliberate attempt to prevent Americans from rejecting insurance plans that cover abortions.

Huffington Post: “Anti-abortion advocates and conservative media outlets have latched onto Smith’s claim, and the rumor about the secret, compulsory ‘$1 abortion surcharge’ has caught fire. . . the president of Americans United for Life mentioned the surcharge in an email to supporters last week as part of her argument for why Obamacare is unconstitutional. . . . Most complaints about the surcharge neglect to point out that every American will have the option to choose a plan through the state exchanges that does not cover abortion at all, and hence will not be required to pay any such surcharge.”

AUL: As mentioned above, AUL joined lead counsel Bioethics Defense Fund and other pro-life organizations to submit an amicus brief to the United States Supreme Court challenging the abortion premium mandate’s constitutionality.

In reality, it will not be easy, and will often be impossible, for individuals to choose a different plan once they learn that their plan includes abortion coverage and requires an abortion premium upon enrollment.  Pro-life Americans may have their plan chosen and subsidized by their employer or they may have their choices limited by being forced to choose between plans that respect their consciences versus other plans that may better meet their health needs or their choice of doctors, but would require them to personally pay an “abortion premium.”

The “abortion premium mandate,” particularly when paired with the forced purchase of insurance required by the ACA’s individual mandate, directly violates the conscience and free exercise rights of millions of Americans by imposing an unconstitutional burden on them within the private insurance marketplace.

Huffington Post: “And the contraception mandate, which the Washington Post blog inaccurately referred to as an ‘abortifacient mandate,’ only covers methods of birth control that prevent pregnancy.”

AUL: The guidelines issued by the HRSA mandating coverage for contraceptives clarifies that its definition is broad: “All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Such a definition includes drugs and devices with known life-ending mechanisms of action, including the abortion-inducing drug ella.

Like the abortion drug RU-486, Ulipristal Acetate (ella) is a selective progesterone receptor modulator (SPRM).  Despite its “indication” for use as “emergency contraception,” ella – like RU-486 – can induce an abortion.[1] This is because an SPRM “works” by blocking progesterone, a hormone that is necessary for pregnancy.[2] By blocking progesterone, ella can kill a human embryo even after implantation.

Put another way - ella can abort a pregnancy, no matter whose definition of “pregnancy” is used.

Huffington Post: “Erin Shields, a spokeswoman for the Department of Health and Human Services, cleared up the confusion about abortion and the Affordable Care Act in a statement to HuffPost on Monday.

‘Under the new health care law, federal funds continue not to be used for abortion services, except those in cases of rape or incest or where the life of the woman is endangered,’ she said. ‘No one will be required to choose a plan that covers these services and no taxpayer dollars will be spent on them. Before choosing a health plan, consumers will know whether the plan covers these services. And if it does, payments will be made into a separate account to ensure no federal dollars fund these services.’

AUL: Ms. Shields’ statement provides a perfect summation of the inaccuracies and misrepresentations in the Huffington Post piece:

Shields: “No one will be required to choose a plan that covers these services and no taxpayer dollars will be spent on them.”

AUL: Millions of Americans will effectively be forced into insurance plans that cover abortions, as explained above, and those insurance plans that cover abortions are permitted to receive federal subsidies under the law.

Shields: “Before choosing a health plan, consumers will know whether the plan covers these services.”

AUL: Actually, they will not know until enrollment, effectively reducing or eliminating their ability to choose a different plan.

Shields: “And if it does, payments will be made into a separate account to ensure no federal dollars fund these services.”

AUL: It is disingenuous to portray this scheme as consistent with existing federal law.  The Hyde Amendment and laws implementing other federal programs such as the Federal Employee Health Benefits Program (FEHBP) prohibit federal subsidies from supporting insurance plans that cover abortions, regardless of whether the federal dollars are used to directly pay for abortions.


[1] “The mechanism of action of ulipristal in human ovarian and endometrial tissue is identical to that of its parent compound mifepristone.”  D. Harrison & J.Mitroka, Defining Reality: The Potential Role of Pharmacists in Assessing the Impact of Progesterone Receptor Modulators and Misoprostol in Reproductive Health, 45 Annals Pharmacotherapy 115 (Jan. 2011).

[2] Planned Parenthood materials acknowledge that chemical abortions are accomplished by blocking progesterone.  See e.g. Planned Parenthood of Arizona, Client Information for Informed Consent: using the abortion pill, available at http://www.plannedparenthood.org/ppaz/images/Arizona/web-AB_by_Pill_E(1).pdf (last visited April 2, 2012). (“Abortion pill” is a popular name for a medicine called mifepristone….It ends the pregnancy.  It does this by keeping your body from making a certain hormone called progesterone.  The pregnancy cannot go on without progesterone.”)

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