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Senate pro-life chair criticizes proposed ACA abortion billing rule


The Hyde Amendment, federal policy since 1976, prohibits funding of most abortions in Medicaid; the ACA policy mirrored the longstanding Hyde Amendment policy.

The chair of the Senate pro-life caucus on Tuesday criticized a proposed loosening of safeguards against taxpayer funding of abortion coverage on health exchanges set up under the Affordable Care Act.

"Abortion is not healthcare and taxpayers should not be subsidizing it," stated Sen. Steve Daines (R-Mont.), chair and founder of the Senate Pro-Life Caucus, on Tuesday.

"This is another move by President Biden and Secretary Becerra to promote their abortion agenda above following the law, and is even more alarming as Democrats look to increase taxpayer subsidies for Obamacare," he stated.

The Department of Health and Human Services has proposed a rule change for how abortion coverage is billed on health plan exchanges set up under the Affordable Care Act.

Under Section 1303 of the health care law, insurance providers of "qualified health plans" [QHP] on the exchanges had to collect separate premium payments for coverage of elective abortions, to ensure that federal subsidies did not pay for abortions.

The Hyde Amendment, federal policy since 1976, prohibits funding of most abortions in Medicaid; the ACA policy mirrored the longstanding Hyde Amendment policy.

A Government Accountability Office report in 2014 found that many insurers were ignoring requirements to properly segregate abortion coverage funds.

The Trump administration, in 2019, required that customers be sent separate health insurance bills for abortion coverage, and that payments go into separate accounts, in order to adequately prohibit funding of abortions on the exchanges. Three federal courts halted that rule from going into effect, however.

The new rule, which will be published on July 1, would require only a single bill and payment of federally-covered services, including abortion coverage. It "proposes repeal of separate billing requirements related to the collection of separate payments for the portion of QHP premiums attributable to coverage for certain abortion services."

One legal analyst called the rule change a "gift to the abortion industry."

"The rule flouts protections against taxpayer funding of abortion by interpreting separate abortion payments to mean combined payments. This is yet another gift to the abortion industry by the Biden administration," said Rachel Morrison, policy analyst with the HHS Accountability Project at the Ethics and Public Policy Center.

Critics have long argued that enforcement of abortion billing regulations under the Obama administration was so permissive as to render the rules meaningless.

President Barack Obama, in a March 24, 2010 executive order after the passage of the Affordable Care Act, said it "maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to newly created health insurance exchanges."

However, the 2014 GAO report found that in five states, all taxpayer-funded health plans on the exchanges offered coverage of abortions. In other states, nearly all qualified health plans offered coverage of abortions. The report added that 15 health plan issuers questioned by the GAO affirmed that abortion benefits in their health plans were not subject to restriction.

While President Joe Biden once supported the Hyde Amendment, in 2019 he announced a reversal of his support and pledged to repeal the policy. In May, he submitted his budget request to Congress for the 2022 fiscal year without the policy included.