This spring, the Obama administration will again ask the Supreme Court to allow it to force Catholic nuns, Christian universities, and other nonprofits to help deliver abortion-inducing drugs to their employees in violation of their religious beliefs.
While the administration continues to defend that mandate, however, it has largely—but quietly—relented on another Obamacare requirement that forced citizens of some states pay a surcharge for others’ elective abortions.
Paying for Abortion in Any Other Name
Concerned that Obamacare taxpayer subsidies would illegally pay for elective abortions (which is unfortunately happening anyway), Congress required insurers to collect from anyone enrolling in a plan covering elective abortions a separate abortion fee. Insurers would use the proceeds solely to pay for elective abortions for the enrollee or anyone else with abortion coverage.
In theory, this abortion payment is voluntary. Only those who voluntarily sign up for abortion coverage would have to pay into this abortion slush fund. But there are two problems: (1) Obamacare requires hiding this “separate payment” from enrollees, and (2) in some states every plan includes elective abortion coverage and requires the abortion surcharge.
My friends at the Charlotte Lozier Institute have previously documented just how difficult it is, by design, to determine whether a plan includes elective abortion coverage and this abortion surcharge. That problem remains. That’s why CLI and the Family Research Council joined forces on a website, obamacareabortion.com, identifying which plans require this abortion surcharge for others’ abortions.
Five States Offer No Abortion-Less Plan
But in some states even Sherlock couldn’t help you find a plan without the abortion surcharge, because every plan requires one. The Government Accountability Office confirmed in a report to Congress in September 2014 that at least five states, (Connecticut, Rhode Island, New Jersey, Vermont, and Hawaii), offered only plans with elective abortion coverage. In at least Vermont and Hawaii, citizens still have no choice.
The ACA requires that every state have a multi-state plan (which includes a mandatory option without elective abortion coverage) by next year, but there is no guarantee the administration will meet that deadline.
Alliance Defending Freedom has filed three lawsuits in Connecticut, Rhode Island, and Vermont challenging this abortion surcharge where citizens must either pay the surcharge (because they have no other choice) or pay the substantial fines Obamacare imposes against individuals who fail to obtain insurance coverage.
In Bracy v. Burwell, Connecticut and federal officials arranged for new plans on the Connecticut exchange that did not include abortion coverage or this separate payment.
In Doe v. Burwell, Rhode Island required insurers participating on the exchange to include an option that does not include elective abortion coverage and the abortion surcharge at each level of coverage. They also added language to plan summaries on the exchange to help customers identify which plans do not include elective abortion coverage and the abortion surcharge. These changes have drawn the ire of abortion advocates upset that citizens will have expanded options that do not include abortion.
Vermont’s Lyle Howe Gets Off the Hook
In Howe v. Burwell, officials have provided no new plan options. Thus, Lyle Howe and every other Vermont resident continues to face the choice of paying a surcharge for others’ abortions or going without health insurance and paying a fine under Obamacare’s individual mandate.
Federal defendants have argued the government has a compelling interest in requiring this separate abortion payment so as not to force taxpayers to subsidize abortions in violation of the Hyde Amendment. Nevertheless, the administration agreed to fully exempt Howe from this separate abortion payment. Unfortunately, Vermont insurers, fearing complaints about a voluntary accommodation, would not agree to cooperate and the administration would not require them to do so.
But just before Christmas the Department of Health and Human Services informed Howe he is exempt from the penalty for failing to obtain coverage because he “made a good faith attempt to obtain any qualified health plan in Vermont that does not cover abortion services for which public funding is prohibited, but were unable to do so, and the Affordable Care Act contemplates that issuers will offer such coverage.”
As a result, Howe will be free from the significant penalties (up to 2 percent of his income) on his tax returns this year and should also be exempt on next year’s taxes since Vermont continues to offer him no alternative to paying the abortion surcharge. Howe may also be entitled to a refund of any prior penalties paid. Howe will still not have an Obamacare plan, but at least he will not be punished for failing to pay for others’ abortions.
Although many Americans remain unaware of this separate abortion payment, Howe is certainly not alone in seeking to avoid paying for others’ elective abortions in order to comply with Obamacare. Other citizens of Vermont and Hawaii, and perhaps of Connecticut, New Jersey, and Rhode Island in prior years, may want to consider whether they should also be exempt from the individual mandate for tax years where they were forced to choose between paying for others’ elective abortions or being fined for noncompliance with Obamacare.