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RI’s health insurance exchange and abortion

August 18, 2011

It’s not new news that Rhode Island Right to Life is against a plan to use an executive order to establish the state’s health insurance exchange. The group issued a press release way back in July, saying that the executive order would “sidestep the General Assembly and usher in public funding for abortion-on-demand.”

It is sad that Gov. Chafee, Lt. Gov. Roberts and Speaker Fox are so committed to abortion that they are willing to prevent the passage of health care reform legislation unless it allows for public funding of elective abortion.  And it is disturbing to hear in the halls of the State House that Chafee may attempt to bypass the General Assembly and establish a health benefits exchange by executive order.

Rhode Island Right to Life has now hired a lawyer to fight the health insurance exchange executive order, which hasn’t been issued yet.

Whether you support abortion rights or not, this issue is incredibly emotional, with heavy rhetoric on either side. So, let’s try to avoid whether it should be legal or not and deal with the facts of the health insurance exchange and how abortion got entangled into the debate.

First, some background, taken from a debrief I did on the air about a month ago-

What is the health insurance exchange?

Health officials often compare the exchange to websites where you buy airfare like orbitz or travelocity. It’s basically a website where you can compare the cost and quality of various health plans. All states are required to have one by 2014 under the federal health care overhaul.

Is the exchange something we’ll all use?

No. Not at first anyway. Only people who buy their own insurance and employees of small businesses will be able to use the health insurance exchanges. But over time, more people might be able to use it.

So, what does Rhode Island need to do to create an exchange?

The original plan was to create an outside group of health care experts to work together with members of the public on how this website should work and who should be able to use it.  Because the law that meant to create that group didn’t pass in the General Assembly this year, the state is looking at other options.

Here’s where the controversy begins.

Why did the General Assembly fail to pass the legislation to create a health insurance exchange?

One issue- abortion.

In April, the Senate passed the health insurance exchange legislation with an abortion amendment that had been added at the last minute. This is what it said-

No health plan under which coverage is purchased in whole or in part with any state or federal funds through the exchange, shall provide coverage for induced abortions, except where the life of the mother would be endangered if the fetus were carried to term or where the  pregnancy resulted from rape or incest. Coverage is deemed to be purchased with state or federal funds if any tax credit or cost sharing credit is applied toward the health plan.

This amendment was originally described as a reiteration of federal policy towards abortion- that no taxpayer dollars be spent towards ending a pregnancy. In 2010, President Obama issued an executive order clarifying that policy. Here’s the portion referring to health insurance exchanges-

The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014.  The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered) and requires state health insurance commissioners to ensure that exchange plan funds are segregated by insurance companies in accordance with generally accepted accounting principles, OMB funds management circulars, and accounting guidance provided by the Government Accountability Office.

Notice how the executive order describes “strict payment and accounting requirements to ensure that federal funds are not used for abortion services in exchange plans.” That means citizens can use their own, private money to pay for plans that offer abortions, but no federal subsidies can go towards those services.

The difference in the case of the Rhode Island amendment was that “Coverage is deemed to be purchased with state or federal funds if any tax credit or cost sharing credit is applied toward the health plan. ” So that means any health plan that accepted public subsidies couldn’t offer abortions. The amendment did allow Rhode Islanders to buy separate “abortion riders” – but how many people plan ahead to have an abortion?

So, when  legislators who support abortion rights realized the amendment would go beyond the federal stance on abortion, that created a log jam for the bill and it never made it to the floor of the House for a vote.

Barth Bracy, the executive director of Rhode Island Right to Life, says this is where  lawmakers supportive of abortion rights “hi-jacked health care reform.”

The very reason that the bill never came to a vote in the House is because those who advocate subsidies for insurance plans that cover abortion knew that they lost the votes. They didn’t have the votes, they would have lost had the bill gone to the floor of the House and they could not accept that result, so they would rather kill the bill and attempt to go around the assembly and indeed around the Rhode Island Constitution to impose their will by government decree through the executive order.

Kate Brock, executive director of Ocean State Action, felt differently when I interviewed her earlier this year about the abortion amendment.

The exchange bill was supposed to be an apolitical step towards expanding access to health care, but the Senate leadership allowed the bill to be hi-jacked by the anti-choice community and they have effectively turned this bill into a back door ban on abortion coverage.

So, to anti-abortion groups, the health exchange legislation included legal changes to abortion coverage on the health insurance exchange, and abortion rights groups are sneaking around the public process to prevent that from happening. To abortion rights groups, anti-abortion law makers misrepresented the implications of a last minute amendment and turned an apolitical law into a fight over abortion.

No matter who you talk to, the other group is responsible for slowing down the state’s progress on creating the health insurance exchange.

The problem is, Rhode Island will lose tens of millions of dollars if it doesn’t create a body to design the health insurance exchange by September 30th, long before the General Assembly meets again. Lieutenant Governor Elizabeth Roberts says she’d prefer to create the exchange through an act of the General Assembly, but there’s definitely a legal precedent for using an executive order. She points to Indiana, which used that approach earlier this year. She says the state is being careful and very transparent as it crafts the executive order.

The executive order will be based in the authority of current state law, which it is required to do, and lawyers are looking very carefully at it to make sure that it is an appropriate use of the governor’s power under existing state law.

Roberts also says it’s “irresponsible” for groups to make claims that this executive order changes Rhode Island laws on abortion.

There is nothing in the original statue nor in the executive order that will be proposed that changes existing state law about funding of abortion services. It is prohibitive under state law to use public funds for abortion and I think that it’s irresponsible for people to be alleging something that is not true.

But Barth Bracy, the executive director of Rhode Island Right to Life, believes he has a legal case against the executive order, and his lawyer is reviewing state law. Because no executive order has been issued yet, he can’t say if his organization will file a lawsuit.

I don’t want to preempt, because there’s no executive order yet, the fact that there’s no executive order indicates to me that they’re wondering if they can do this as well.

Elizabeth Roberts says she expects the governor to issue the executive order sometime in late August or early September, in time for the federal deadline. Bracy says when that happens his organization will likely hold a press conference to respond.

What do you think? Is the executive order a work around to thwart the abortion amendment in the general assembly, or did the abortion amendment thwart what should have been an easy bill to pass?

4 Comments leave one →
  1. August 18, 2011 8:46 pm

    The failure of the legislature to pass a Health Insurance Exchange bill has absolutely nothing to do with abortion rights. I believe that this was mere a smoke screen to derail the ability of our state to move forward to long overdue health reform. Shame on us for allowing ourselves to get caught up in a debate that is unneccessary…

  2. August 18, 2011 9:41 pm

    Thanks for your comment. What do you think was the real reason the General Assembly couldn’t pass the bill?


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