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By W. Gardner Selby March 29, 2010

Rep. John Carter says health care law provides full federal funding for abortions, but that's not so

U.S. Rep. John Carter, R-Round Rock, lambasted the Democratic-approved health care plan signed into law last week as a federal health care "takeover bill."

Among Carter’s concerns spelled out in a March 21 press release: "The bill also provides full federal funding for abortions…"

Carter spoke after a clutch of anti-abortion House Democrats agreed to vote for the Patient Protection and Affordable Care Act after President Barack Obama said he’d issue an executive order referring to continuation of a ban -- begun in the late 1970s and annually reaffirmed by lawmakers -- on spending federal funds on abortions except in cases of rape, incest or to save the life of a woman.

The law prohibits federal subsidy funds, intended to help people afford health coverage, from being used to pay for abortions except in those exceptional cases. Obama’s order includes a provision to ensure that insurers offering coverage through state-level insurance exchanges charge customers separate premiums to cover abortion services.

Obama's order also revisits past decisions by Congress to bar community health centers from using federal funds to provide abortion services outside of the exceptional circumstances. His order directs federal officials to "ensure that program administrators and recipients of federal funds are aware of and comply with the limitations on abortion services."

We sought Carter's backup for his contention that the law provides full federal funding for abortions. John Stone, Carter’s spokesman, said several aspects of the law support his claim.

Let's review them one by one.

First, Stone noted that plans offered to patients in the state-level exchanges are permitted to cover abortion services. Unsaid: The law specifies that each exchange must have at least one plan that does not cover abortions and that plans offering abortion services must collect separate premiums from each patient to pay for the services, presumably preventing the expenditure of federal funds on abortions.

Second, Stone said provisions promising billions of dollars for community health centers and health co-ops, one vehicle for providing health insurance, lack language that would prohibit spending those dollars on abortion. Others, including representatives of community health centers, have said the promised money isn’t likely to be spent on abortions considering the centers haven’t provided abortion services in their 45-year history. A Jan. 22 article concludes that worrying about the centers providing abortions is "more a political dart than a legitimate concern." Insurance purchased through co-ops would be subject to the same restrictions on abortion funding as other plans likewise offered through the state exchanges.

Of course, who can say whether a court might rule that without a specific prohibition, abortions could be permitted? You can't fault organizations like the National Right to Life Committee for raising concerns about possible loopholes.

Third, Stone said, the law creates a federal program to administer two or more national insurance plans, with a directive that at least one plan not provide federally funded abortion services. Stone said the provision implies "that other federally administered plans could cover elective abortions, or perhaps even be required to do so by the federal administrator. This is a sharp break from longstanding federal policy." Stone was referring to the fact that for decades, health insurance programs offered to federal employees have been forbidden to cover abortions except under the established special circumstances.

Under the new law, however, the multi-state plans cited by Stone would be sold like other privately vended plans available through the exchanges--and the law directs that any funding for abortions under the plans come from patient premiums. Timothy Stoltzfus Jost, a professor at the Washington and Lee University School of Law, says the provision for two or more national plans is intended to broaden insurance offerings.

Does the multi-state provision imply a federal administrator could require that the plans cover abortion services? No, Jost told us: That's like saying it "implies that you have to cover euthanasia," Jost said. "That's silly."

Fourth, Stone said, the law’s provision for separate premiums for participants in plans covering abortion services offered through the state-level exchanges could be problematic. "This requirement would apply to anyone who enrolls in a subsidized plan that covers elective abortions, which would surely include many people who would learn of the abortion surcharge only after enrolling," Stone said

The law states, though, that a plan offering abortion coverage shall notify patients of that feature when they enroll. Besides, the provision doesn’t mean that full federal funding would pay for abortions, as Carter claims.

Trying to cover all the bases, we looked at each abortion reference in the 906-page law. This search yielded no language permitting federal funding of abortions outside the previously established special circumstances, though we did find several prohibitions on abortion spending as well as a bar on discriminating against insurers or physicians who don't fund or perform abortions.

One section states the law doesn’t pre-empt state laws on abortion. Another states that nothing in the law should be construed to require insurers to offer abortion services. A third section states that school-based health centers can’t provide abortion services.

Two independent observers of the health-care debate concur that the law doesn't intend full federal funding of abortions.

In January, the non-partisan Kaiser Family Foundation said: "If a state does allow plans in the exchange to cover abortions, (the law) only permits federal subsidy dollars to be used to pay for abortions that are permitted under the federal law that is in place before the plan year begins … Coverage for other abortions would have to be paid for with non-federal funds."

Indeed, requiring insurers that offer abortion coverage through state-level exchanges to collect two separate payments from customers might reduce the availability of such coverage, according to the foundation's analysis.

Some "legal scholars contend that given the size of the potential pool of women and their families that will be eligible for federal subsidies under the exchange and other complexities," the foundation writes. "This (two-part payment mandate) might limit the development of insurance plans that offer either abortion coverage or a rider, and ultimately carry over to products offered in the employer market."

Kaiser’s punch line: "This complex combination of restrictions means that… many women who will obtain coverage under health reform either though Medicaid or an exchange would have to pay for an abortion out-of-pocket."

Adam Sonfield, a senior public policy associate with the independent non-partisan Guttmacher Institute, which studies and advocates on issues related to reproductive health, echoed that view. Sonfield told us the new law bans federal funding of abortion coverage. He added: "In our analysis, the law’s requirements for enforcing this ban are so onerous and stigmatizing that we expect insurance companies to drop coverage of abortion altogether, even for consumers who receive no federal subsidies at all."

Last week, rated as True a House member’s statement that the new law doesn’t provide for publicly funded abortions.

All told, this review leaves us agape at Carter's overreach. That is, the law does not provide full federal funding of abortions--and that's clear.

Carter could have edited his blast. Instead, he makes an unsupported ridiculous claim.

Featured Fact-check

We rate his statement as Pants on Fire.

Our Sources

E-mail, Adam Sonfield, senior public policy associate, Guttmacher Institute, March 24, 2010

E-mail and interview, John Stone, communications director, U.S. Rep. John Carter, R-Round Rock, March 23, 2010

H.R. 3590, "Patient Protection and Affordable Care Act," via Government Printing Office, March 24, 2010

Interview, Timothy Stoltzfus Jost, professor, Washington and Lee University School of Law, March 25, 2010

Timothy Stoltzfus Jost, memo on abortion-related language in health-care legislation, March 14, 2010

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