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The legal/abortion challenge to RI’s health exchange

December 1, 2011

Today Rhode Island Right to Life filed a lawsuit in Superior Court, challenging the way Governor Chafee created the state’s health insurance exchange.

This was not a surprise. The anti-abortion group has been talking about its opposition to Chafee’s executive order since before it existed.

So what’s the central argument?

Right to Life says to create the health insurance exchange, Rhode Island needed to make “statutory changes” to state law.  And under RI’s Separation of Powers provision in the Rhode Island constitution, Chafee doesn’t have the right to create laws, only administer and carry them out.

Right to Life’s attorney Joseph Larisa argues that the health insurance exchange board created by Chafee in the executive order can’t legally have any power without approval and oversight by the general assembly.  He also questions the legality of using what’s called the “Health Resources and Development fund” to hold and manage the millions of federal dollars designated for the exchange.

Here is a link to the entire lawsuit so you can read it yourself.

Chafee says he’s confidant in the state’s legal standing.

This is the state law Chafee cites in his executive order as proof that managing that money is a function of state government.

Executive office of health and human services. – There is hereby established within the executive branch of state government an executive office of health and human services… In this capacity, the office shall:

(3) Maximize and leverage funds from all available public and private sources, including federal financial participation, grants and awards.

Chafee’s executive order cites this state law as proof that he may move that “Health Resources and Development fund” out of the Department of Health and Human Services and put it under the control of the Executive Department (AKA the Governor’s office.) Here are the parts that relate-

(b) To the extent that existing health-related functions within departments or divisions need to be removed to another department for the purposes of more efficient administration, or to the extent that new divisions need to be established to meet the purposes of this chapter, the governor shall make the determinations and shall include the determinations within his or her report to the general assembly.

That report must be made to the general assembly within a year and the general assembly will have thirty days to disapprove or substitute his choices.

OK, enough legal mumbo jumbo! Why is Rhode Island Right to Life challenging the health insurance exchange? How does Separation of Powers relate to abortion?

Abortion is actually the reason why Rhode Island didn’t pass a bill to create the health insurance exchange. You can read my lengthy explanation here.

In short, the bill didn’t pass because of an amendment that would have banned any government subsidized health insurance plan on the exchange from offering abortions. Rhode Islanders can use government subsidies for any health plans on the exchange, so insurance companies would either have to offer a non-subsidized version of every health plan or just not offer abortions.

Lawmakers couldn’t agree on what to do with the amendment, so the bill just sat in limbo till the legislative calendar ran out. Now, Rhode Island Right to Life wants the general assembly to return to the health insurance exchange legislation and pass it with the abortion amendment included.

What do you think? Does the group have a legal case?

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