In the same week as the March for Life and the anniversary of the Roe v. Wade decision legalizing abortion nationwide, congressional Republicans are presenting strikingly different messages on the issue. While the House of Representatives on Tuesday approved legislation (H.R. 7) that would prohibit federal funding of abortions, with all House Republicans present voting for the bill, on Monday four Republican senators introduced a bill that would allow direct taxpayer funding of abortions.
That legislation, the Patient Freedom Act (the PFA, Senate Bill 191), introduced by senators Bill Cassidy (R-LA) and Susan Collins (R-ME), would go further than Obamacare in funding abortion coverage. Whereas Obamacare provides federal funding for insurance plans that cover abortion, the Patient Freedom Act would allow for direct federal funding of abortion procedures themselves.
- Keep the regime created by Obamacare in place (i.e., the individual and employer mandates, subsidies, etc.), albeit funded at 95 percent of current levels;
- Create a new insurance regime, funded by a rather complicated allotment formula—the allotment would equal 95 percent of the funding a state would have received under Obamacare, distributed directly to individuals through new Roth Health Savings Accounts (HSAs); or
- Reject Obamacare entirely—and give up all federal funds associated with it.
The text of the legislation indicates a clear bias towards option two. If a state does not choose any of the three options, that state will automatically be placed in the second.
This Bill Would Repeal Abortion Restrictions
If a state chooses the second option, most of the provisions of Title I of Obamacare would not apply. That repeal would include the individual and employer mandates, and some (but not all) of the federal benefit mandates included in Obamacare.
Crucially, for states that select the second option (or the third, for that matter), the PFA would repeal Section 1303 of Obamacare, which imposes some restrictions on federal funding of abortion plans. Section 1303 permits states to prohibit abortion coverage on their insurance exchanges, and requires insurers to set up a segregation mechanism intended to keep federal insurance subsidies separate from funds that pay for abortion procedures.
Pro-life groups have attacked the Section 1303 “restrictions” as an accounting sham because money is fungible, and therefore the segregation scheme meaningless. Further, a September 2014 Government Accountability Office report noted that many insurers had not even followed the segregation regime.
However, Obamacare made an attempt, albeit a largely meaningless one, to prevent taxpayer funding of abortion. By contrast, the PFA makes no such attempt to do so.
Follow the Money
Because the PFA itself includes no restrictions on taxpayer funding of abortion, it’s critical to examine the source of funding for the new state-based allotments. While the Hyde Amendment prohibits federal funding of abortion, it does so only for appropriations provided through the U.S. Department of Health and Human Services’ spending bill. Other agencies covered through other spending bills must explicitly prohibit funding of abortion coverage, otherwise federal funding of abortion would be permitted—and potentially required by courts as a necessary medical service.
The Patient Freedom Act includes only one new appropriation, for a population health initiative created by Section 103(c) of the bill. Therefore, the bill relies on Obamacare’s existing funding stream—the insurance subsidies provided in the form of refundable tax credits—to finance the allotments to individuals’ Roth HSAs. Because that funding stream goes through the Department of the Treasury via the Internal Revenue Code, the Hyde Amendment restrictions do not apply—meaning that federal funds can, and will, finance abortion coverage.
The legislation the House passed on Tuesday (H.R. 7) included an explicit ban on using Obamacare subsidies to fund abortion, or plans that cover abortion. (The ban is in Section 201(a) of the bill.) Because the Patient Freedom Act uses the exact same funding stream to finance its allotments, the sponsors needed to include an explicit ban on abortion funding in their legislation. They did not.
Direct Funding of Abortion Procedures
Not only would the Patient Freedom Act provide federal funds to insurance plans that cover abortion, it would allow individuals to fund their abortions directly with federal funds. The federal allotments would be directly provided (using a state-based formula developed by the Department of Health and Human Services) to eligible individuals using the new Roth Health Savings Account option. Recipients can use Roth HSA funds to fund health insurance premiums, provided those premiums are for plans that meet several federal mandates, or they can use their account to fund “qualified medical expenses.”
The definition of “qualified medical expenses”—available at Section 213(d) of the Internal Revenue Code here—includes no prohibition on abortion as a medical expense. Because the Internal Revenue Code is not subject to the Hyde Amendment, that law’s restrictions would not apply. Therefore, individuals could use federal dollars deposited into their Roth HSA to fund abortion procedures.
Current law does permit some tax breaks for abortion coverage. The tax code exempts employer-provided health insurance premiums from income and payroll taxes. Because some employer plans cover abortion, individuals receive a tax benefit for abortion coverage. Likewise, individuals can currently use their HSA funds to pay for abortions, given the definition of “qualified medical expenses.”
However, in both those cases, individuals and employers are using their own money to fund abortion procedures, and receiving a tax break from the federal government for doing so. By contrast, the Patient Freedom Act goes further, allowing the direct use of the federal government’s money to cover abortions, and plans that cover abortions.
That is a significant expansion of federal abortion funding that exceeds anything in Obamacare. And it’s a strikingly odd message for the senators to send on a week when many conservatives are focusing on protecting innocent life, not using taxpayer funds to destroy it.