Why Did the Obama Administration Ban Most Abortion Coverage in High-Risk Health-Insurance Pools?

The Obama administration dismayed pro-abortion-rights groups Thursday when it announced that the health-insurance plans that will be created this year to insure people with preexisting conditions, who cannot get insurance privately until 2014, will not cover abortion except in cases of rape, incest, or the mother's life being at risk. Women's rights advocates furiously denounced what they viewed as a weak-kneed capitulation to anti-abortion-rights activists. The pools will be managed at the state level, and several states were planning on including abortion under the covered procedures. Then, according to Jennifer Dalven, director of the ACLU Reproductive Freedom Project, "some folks on the anti-choice side made a stink about it," and the administration decided to ban covering abortion.

Why did the nominally pro-choice administration do this? It maintains that it is legally required by the amendment to health-care reform, named for Sen. Ben Nelson (D-Nebr.) who demanded it as a condition of his support, that no federal funds be used to pay for abortions. That is the same policy, known as the Hyde amendment, in force for Medicaid. However, at the state level, states split the cost of Medicaid with the feds, and so they can cover abortion with their own funds. The high-risk pools will be entirely federally funded, so that would be impossible in this case.

Still, pro-choice groups say the administration could have simply followed the model that will be used in the state insurance exchanges that will be available to everyone, including people with preexisting conditions, by 2014. In that system some plans cover abortion and some don't. If you choose one that does you pay two separate premium checks, one of which covers the abortion portion of your coverage. They felt that their arguments were especially strong in light of the fact that the nonpartisan Congressional Research Service found that the high-risk pools could legally have an abortion-coverage provision. White House health-care adviser Nancy-Ann DeParle wrote in a blog post that the administration was following the Hyde amendment status quo, and keeping with the spirit of health-care reform. "This policy meets the President’s commitment throughout the health reform debate to neither expand nor scale back current restrictions on federal funding for abortion," DeParle wrote.

But activists see it differently. "We think this decision goes further than Nelson because under Nelson, flawed as it is, at least women could buy a plan that has abortion coverage," says NARAL Pro-Choice America policy director Donna Crane. "It's pretty clear that this is not required under the law," says Dalven. "This is like the Stupak amendment that Congress rejected."

So, if the abortion-rights crowd is apoplectic, then presumably abortion-rights opponents are overjoyed, right? Wrong. Although the National Right to Life Committee is happy to take the credit that their opponents gave them for bringing the issue to the administration's attention, they still are not happy, since the administration noted that this was a temporary and somewhat unique situation with no precedential value. Here's what they said in a press release:

“Without blinking, the Obama Administration had approved high-risk pool plans submitted by at least three states that would have funded virtually all abortions—until NRLC raised the alarms starting on July 13. In the regulation issued today, the Administration tells states that elective abortions may not be covered in the high-risk pool program—but simultaneously, the head of the White House Office of Health Reform, Nancy-Ann DeParle, issued a statement on the White House blog explaining that this decision ‘is not a precedent for other programs or policies given the unique, temporary nature of the program.'

“This entire episode demonstrates what National Right to Life said in March—there is no language in the new health care law, and no language in Obama’s politically contrived March 24 executive order, that effectively prevents federal subsidies for abortion on demand."

It seems as if the regulation is an inverse Rorschach test, in which everyone sees not what they want, but the opposite of it. "[Health-care reform] is a 2,000 page law. There’s a dozen or more provisions that implicate abortion policy," NRLC legislative director Douglas Johnson explained to NEWSWEEK, "This was the first that we had to deal with, but there are the others down the road. Some will cover larger populations. What we wanted was the Stupak amendment that the House adopted. We think Congress needs to revisit it, so everything isn't up for grabs. But that will require some change in the composition of Congress."

The Health and Human Services Department and the White House declined to elaborate on the previously released statements, although a White House spokesman reiterated DeParle's points that this was a different situation than the exchanges for logistical reasons.

Legal interpretations aside, the two sides of the abortion debate are so far apart that they cannot even fathom each other's positions. "We may not all agree about abortion," said Dalven, but I think we can agree that [denying abortion access to women with cancer or heart disease] isn't right." But no such agreement exists. Johnson dismissed that by noting, "From our point of view the unborn child in America is already in a 'high-risk pool,' so to speak."