Below is an analysis of ObamaCare and abortion that I have written for the summer newsletter of the crisis pregnancy center of which I am Chairman of the Board. Regular readers will detect a more restrained and “just the facts” presentation than I normally use in my blog posts. I thought that the change of pace style might be of interest to our faithful readers so I did not modify the analysis for this post. (Fear not, I will not inflict on the readers of this blog any of my professional scribblings in the law mines, which would be of utility only for readers suffering the pangs of insomnia!)
Now that the Supreme Court in a 5-4 vote, courtesy of Chief Justice Roberts switching his vote, has upheld the constitutionality of the Patient Protection and Affordable Care Act of 2010, universally better known as ObamaCare, pro-lifers should understand what ObamaCare means in regard to abortion.
1. Abortion surcharge-The Act provides that if an individual is enrolled in an insurance policy that covers elective abortions, each participant in that insurance plan must pay a separate surcharge for the elective abortion coverage. There is no opt out provision for individuals. So if a pro-lifer works for a business that provides such an insurance policy, the pro-life employee would have no choice but to pay the abortion surcharge. The Act forbids insurance companies from advertising that an abortion surcharge is required under the Plan.
2. Federal Subsidies to Insurance Plans That Provide Abortion– The Act provides for federal subsidies to health insurance plans, including plans that provide coverage for elective abortions, set up health insurance exchanges created by the states. The policies provided under the health insurance exchanges may include elective abortion coverage unless a state bans such coverage. Thus far the following states have banned such coverage: Arizona, Florida, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Dakota, Tennessee, Utah, and Virginia.
3. ObamaCare and Abortifacients The HHS mandate requiring “free” coverage for all contraceptive devices, see number 5 below, in virtually all health insurance plans, includes those devices and drugs thought to act as abortifacients.
4. ObamaCare and the Hyde Amendment- The Hyde Amendment, which prevents the Federal government from using funds to pay for abortions, except in cases of rape, incest or life of the mother, is an annual piece of legislation. If President Obama were to win re-election, one could imagine him vetoing legislation having the Hyde Amendment as a rider. If he could veto such legislation and if Congress, as would be likely, could not override his veto, there would be no Federal restrictions to using Federal funds available pusuant to ObamaCare to pay for abortions. President Obama did sign an executive order applying the Hyde Amendment restrictions to ObamaCare. This of course is meaningless, as an executive order is freely rescindable by a President at any time, and, in any case, an executive order does not have the force of law, and is merely an edict by the President to executive agencies.
5. Rule making authority of the Federal agencies One of the problem areas in predicting what ObamaCare will do is that a huge amount of rule making authority is vested in Federal agencies, most notably HHS. This power is great. For example, earlier this year HHS suddenly released a mandate requiring that all insurance policies provided by employers include “free” contraceptive coverage for employees. There is a limited exemption for churches, but no exemption for church owned charities, non-profits and enterprises, and there is no exemption for ordinary employers who may have religious or moral scruples about such coverage. There is no predicting how this rule making authority will be used in the future regarding elective abortions.
The bottom line for pro-lifers is that ObamaCare vests a huge amount of authority in the Executive Branch of the Federal government as to the provision of health care in this nation, and that currently the Executive Branch is led by a President who is totally pro-abortion. No pro-lifer can look upon this with anything except alarm.