by Charles Donovan | Washington, DC | LifeNews.com | 9/26/13 10:55 AM

On January 1, 2014 state health exchanges, or the federal or “partnership” versions that will operate in their stead in a narrow majority of states, are required by law to be up and running.

By October 1, 2013 consumers are supposed to be able to begin researching and comparing insurance options in these exchanges.  Delays in the implementation of the Affordable Care Act are evident in nearly all areas of the law, including a feature called “multi-state plans” (MSPs) that are designed to be phased in over a four-year period for every state in the Union.

Despite provisions of law including the Hyde Amendment governing appropriations for abortion; the Hyde-Weldon amendment barring discrimination against physicians, insurers, institutional providers and others with respect to their policies regarding providing, referring or paying for abortion; and the language governing the MSPs themselves, the Obama Administration and abortion funding advocates seem bent on pursuing numerous avenues for the ACA, and MSPs in particular, to make public abortion subsidies available to tens of thousands of girls and women of childbearing age.

Here is how.

Multi-state health plans were created under Section 1334 of the Affordable Care Act.[1]  The law provides for a minimum of two such plans in each state, one of which must be a nonprofit plan.  The MSPs were a late substitute for the idea of a public option, a fully government-run plan that would have competed with – and, many advocates hoped, eventually supplanted – privately sponsored plans.  Instead, the MSPs will be offered by heavily regulated private sector insurers operating under contracts these insurers directly sign with OPM.  “Multi-state” is another word for “national” and the degree of regulation of plan content, control of medical-loss ratios, and other factors ensure that these plans will operate more like regulated utilities than truly private insurance.

Beginning in 2014, the MSPs are to be phased in over a four-year period.  The ACA requires approved plans to be available in at least 60 percent of the states in the first year (30 states), 70 percent in the second year (35 states), 85 percent in the third year (presumably 43 states), and 100 percent in the fourth year (2017).  One core rationale for these plans is to increase “competition” in the state exchanges, a goal in dramatic tension with the concept of heavily regulated plans, which by their heft and complexity are likely to be offered by only a handful of the largest health insurance companies in the country.  In order to aid this regulated competition, the MSPs will have to offer price advantages that may well flow from the fact that their administrative (including promotional) costs will be borne by the taxpayer through the Office of Personnel Management.  Both the companies and the Obama Administration have incentives to maximize participation in these plans.

What these advantaged plans will do with respect to abortion coverage is not yet fully clear.  However, Section 1334(a)(6) of the ACA states that:

In entering into contracts under this subsection, the Director [of OPM] shall ensure that with respect to multi-State qualified health plans offered in an Exchange, there is at least one such plan that does not provide coverage of services described in section 1303(b)(1)(B)(i). (Emphasis added).

The cited section refers to the ACA’s description of the Hyde Amendment regarding abortions that may be covered:  those for reasons of rape and incest and a narrow set of conditions regarding physical threat to the life of the mother.

The ACA also included a provision, Section 1303(a)(1), making clear that state legislatures, some of which already had laws in place barring every health insurer in the state from offering abortion in any plans marketed and sold there, could adopt new opt-out legislation barring plans that cover elective abortions from participation in their state’s exchanges.  Five states adopted this exchange abortion limit in 2010, and since then the number of states doing so has grown to 23.  Twenty-seven states and the District of Columbia currently have no such limitation.

On March 1 of this year, the Office of Personnel Management issued its final rule on the MSPs, acknowledging that a decision by a state to exclude abortion-covering plans from its exchange will apply to any and all MSPs offered in that particular state.  Section 800.602(b) of the rule, titled “State Opt-Out,” simply says, “An MSP may not offer abortion coverage in any State where such coverage of abortion services is prohibited by State law.”[2]  That states can block all qualified insurers, including MSPs, from their exchanges if they cover elective (non-Hyde) abortions is clear.  But a strong case can be made that Section 1303(b)(1)(B)(1)’s reference to excluding abortion coverage can be read, in conjunction with other provisions of federal health law, to forestall the Obama Administration from seeking to compel any private insurance company to include elective abortion in its MSP.

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