H.R. 3 Attempts To Create Government Intrusion Into Insurance Industry Under Veil Of "No Taxpayer Funding Of Abortion"

January 26, 2011 11:23 am ET

Under the guise of a permanent Hyde Amendment, H.R. 3 is actually a far-reaching government intrusion into private health insurance's ability to provide adequate care for its policy members. This government intrusion into private insurance companies will mean that even those who do not use the abortion provisions of their health care plan will not be allowed government reimbursements for any of their health care costs. Therefore, it will cost privately insured Americans more to pay for health care costs than before H.R. 3. This will affect approximately 87 percent of private insurance plans purchased by individuals and businesses and it will impact both men and women. H.R. 3 will force the hand of private insurance companies to drop their coverage of abortions or to suffer the consequences of losing customers to insurance companies that do.

H.R. 3 Goes Far Beyond Status Quo On Abortion Funding

The Affordable Care Act Already Prohibits Taxpayer Funding Of Abortion. According to FactCheck.org:

The concern that anti-abortion lawmakers had is that the bill (now law) provides subsidies to low- and mid-income persons to help them buy insurance through state-based exchanges. If these individuals were using federal money to buy a plan that covered abortion, then any abortions covered by that plan would be paid for in part with federal funds, lawmakers said.

What the health care law says: To address those concerns, senators adopted a provision saying that any private insurance plans that cover abortion (and are sold through exchanges) must keep federal dollars separate from the private dollars paid by individual policyholders. Those buying plans on the exchange would send in a separate payment to cover abortion services, and coverage for abortions (other than in cases or rape or incest or danger to the mother's life) would be paid for from a segregated pool of money that contains no federal funds." [FactCheck.org, 4/1/2010, emphasis added]

New Bill "Prohibits Both Direct And Indirect Funding" To "Make Abortion As Difficult To Obtain As Possible." According to the Wonk Room's Igor Volsky:

The bill prohibits both direct and indirect funding streams that might potentially touch on the provision of abortion care and would make abortion as difficult to obtain as possible without actually criminalizing it. And it does this by arguing that money is fungible - that is, if an individual received a tax credit, she will have more private dollars to pay for abortion coverage. Therefore:

- It would deny tax credits to individuals or entities that pay for abortion care

- Disallow medical deductions for payments for any health plan that includes abortion coverage or for any medical expenses related to abortion care

- Treat as income any amounts paid for an abortion from a tax-preferred trust or account, such as a health savings account

[ThinkProgress.org, 1/20/11, emphasis original]

H.R. 3 Prohibits Medical Tax Deductions For Private Plans That Cover Abortion — Regardless Of Whether Abortion Coverage Is Used. From the text of H.R. 3, the "No Taxpayer Funding for Abortion Act":

"SEC. 303. PROHIBITION ON TAX BENEFITS RELATING TO ABORTION.

''For taxable years beginning after the date of the enactment of this section

''(1) no credit shall be allowed under the internal revenue laws with respect to amounts paid or incurred for an abortion or with respect to amounts paid or incurred for a health benefits plan (including premium assistance) that includes coverage of abortion,

''(2) for purposes of determining any deduction for expenses paid for medical care of the taxpayer or the taxpayer's spouse or dependents, amounts paid or incurred for an abortion or for a health benefits plan that includes coverage of abortion shall not be taken into account, and

''(3) in the case of any tax-preferred trust or account the purpose of which is to pay medical expenses of the account beneficiary, any amount paid or distributed from such an account for an abortion shall be included in the gross income of such beneficiary. [H.R. 3, "No Taxpayer Funding for Abortion Act," 1/20/11, emphasis added]

Guttmacher Institute: Almost 87 Percent of Private Insurance Plans Have An Abortion Provision of Some Type. According to the Guttmacher Institute, a reproductive health research organization: "Guttmacher Institute's federally supported study, which assessed levels of insurance coverage for a wide range of reproductive health services, found that 87% of typical employer-based insurance policies in 2002 covered medically necessary or appropriate abortions. ... Importantly, the 87% of plans that covered abortions did not include plans that offered abortion coverage only in very limited circumstances (such as rape and incest, or to protect the woman's life). Only a very small number of respondents offered such limited coverage, and they were not included in the study's findings." [Guttmacher Institute, 1/19/11, emphasis added]

Even With The Ban On Federal Funding Of Abortions, H.R. 3 Attempts To Restrict Abortions Paid For Through Private Insurance. On the January 24th edition of The Rachel Maddow Show, Rep. Jan Schakowsky (D-IL) explained that this legislation is much more far-reaching:

RACHEL MADDOW (HOST): Doesn't the government already ban funding for abortion? Why do we need the no taxpayer funding for abortion act?

REP. JAN SCHAKOWSKY: Well, because this bill actually goes way further. This says that a person whose employer provides health care but that health insurance policy covers abortions, man or woman, then that employer can't get a tax break. If an individual who buys a policy that provides for abortion cannot get any kind of health care tax deduction if that policy were to cover abortion. So, now it goes into private money and private insurance policies and things that people do on their own. It's — it is much further than the Hyde Amendment.

MADDOW: So this is restricting private health insurance provided privately to individual Americans, essentially restricting them from providing coverage for abortions?

REP. SCHAKOWSKY:  Well, what it does, it doesn't ban the abortion but it says that you can't get any tax credit. I think what it really says is insurance companies don't offer abortion coverage. That's the safe way to go because people won't want to buy that coverage because they won't be able — let's say they have a separate health tax account. If they use that money to pay for insurance or pay for abortion, then that will be considered income. I mean, they're getting around it through the tax code in order to prevent ordinary Americans — the way I read it, it could extend to men who buy those policies as well. [The Rachel Maddow Show, 1/24/11]

New Tax Restrictions In H.R. 3 Could Induce Private Insurers To Drop Coverage Of Even Medically Necessary Abortions.

H.R. 3 Could Force Insurance Companies To Drop Abortion Coverage From Private Plans. According to NPR's Morning Edition:

Timothy Jost, a law professor at Washington and Lee University and a prominent anti-abortion voice, says what many Republicans are saying about the law and abortion is simply not so.

"Both the federal court in Virginia and the Ohio Elections Commission determined that the claim that the [health law] funds abortion is false," Jost said. "So the question is not whether we're going to strip abortion funding from health care reform. The question is how much further Congress is willing to go to remove tax subsidies for abortion coverage that is currently available."

Jost is referring to the fact that Smith's bill would do more than just write into law existing abortion restrictions. It would also eliminate tax benefits for insurance policies that cover abortion -- even abortions in most cases of medical necessity.

NARAL's Crane says the effect could be far-reaching.

"If you are a health insurance plan and you are selling your product, and all of a sudden it becomes that much more expensive because there are tax penalties imposed on it, you're probably going to change the nature of your product, and in this case we're quite certain that Chris Smith intends for health insurance plans to drop their abortion coverage," Crane said. [NPR's Morning Edition, 1/21/11, emphasis added]

Conservatives Vocally Oppose Government Intrusion Into Private Industry — Except When It's Inconvenient

Heritage Foundation Complained About Government Intrusion Into Private Health Plans. The Heritage Foundation, a conservative think tank, wrote of the Affordable Care Act: "Health care is being bureaucratized and politicized. The structure of the health care system will be determined by one central authority, reducing flexibility and denying Americans the ability to make their own choices. Americans will have to obtain health insurance and health care based on what the federal government deems best for them. [...] The Administration and the federally supervised exchanges are also given life-or-death power over insurers in a more definitive way: They are autho­rized to opine on each plan's value and, conse­quently, to significantly guide consumer choice." [Heritage Foundation, 9/10/10, emphasis added]

  • But When It Comes To Abortion Funding, The Heritage Foundation Supports Government Interference. According to the Heritage Foundation's Chuck Donovan: "The new Congress should enact permanent and comprehensive conscience protections and replace the current patchwork of federal statutes and annual abortion riders on spending bills with a permanent, government-wide policy. The No Taxpayer Funding for Abortion Act (H.R. 5939), introduced by Representatives Chris Smith (R-NJ) and Daniel Lipinski (D-IL) in the 111th Congress, would assure that 'no funds authorized or appropriated by federal law, and none of the funds in any trust fund to which funds are authorized or appropriated by federal law, shall be expended for any abortion' outside the scope of the current Hyde Amendment. By applying conscience protection language to all agencies and programs run by the federal government or by states and localities using federal funds, it would protect both individuals and institutions from any discriminatory act because of their refusal to provide, pay for, provide coverage of, or refer for abortion." [Heritage Foundation, 1/19/11, internal citation removed]

Several Co-Sponsors Of H.R. 3 Complain About Government Intrusion Into Private Business While Supporting Government Intrusion Into Private Business. [H.R.3, "No Taxpayer Funding For Abortion Act," 1/20/11]

  • Rep. Paul Ryan (R-WI): "We should ensure that health care decisions are made by patients and their doctors, not by bureaucrats, whether at an insurance company or a government agency." [New York Times, 3/25/10]
  • Rep. Kevin McCarthy (R-CA): "That's why I think the time is right. You value things the most when you lose them. Who would have thought America could be going the way it's going now? With government taking over businesses? With government taking over health care? We've always believed in freedom as a country but now we're starting to understand that we have to fight for it." [Young Guns, 2010, p. 13, emphasis added]
  • Rep. Kristi Noem (R-SD): "State Rep. Kristi Noem defeated two other Republicans on Tuesday to win the GOP congressional nomination, and she pledged to begin working immediately to wrest South Dakota's lone U.S. House seat out of Democratic hands...The three GOP candidates agreed on most issues during the campaign, arguing that Congress must curb government spending to reduce the federal deficit, repeal the health care reform law and reduce the federal government's regulation of private business." [AP via Lexis Nexis, 6/9/2010, emphasis added]
  • Rep. Michele Bachmann (R-MN): "In 18 months' time, the federal government now owns or controls 51 percent of the private economy; 18 months ago 100 percent of the private economy was private. People don't want the federal government to either own or control the private economy. It certainly isn't creating jobs and it certainly isn't turning the economy around." [The Hill, 4/22/10]
  • Rep. Spencer Bachus (R-AL): "The federal government has no business making private medical decisions that ought to be between you and your doctor." [Bachus.house.gov, 2/19/11]
  • Rep. Todd Akin (R-MO): "This government takeover is a foreshadowing of their attempts to takeover the entire healthcare industry," [Akin.house.gov, 9/17/09]
  • Rep. Eric Cantor (R-VA): "But there is -- there is a reason why we all voted no. And it does have to do with the philosophical difference that you point out. It does have to do with our fear that if you say that Washington can be the one to define essential health benefits, there may be a problem with that." [White House Summit via WashingtonPost.com, 2/25/10]
  • Rep. Louie Gohmert (R-TX): "Once the government controls, rations, and pays for healthcare, it will then have the right to monitor the lives and businesses of all Americans."  [Gohmert.house.gov, 3/24/10]
  • Rep. Ron Paul (R-TX): "Dr. Paul is the leading spokesman in Washington for limited constitutional government, low taxes, free markets, and a return to sound monetary policies based on commodity-backed currency. He is known among both his colleagues in Congress and his constituents for his consistent voting record in the House of Representatives: Dr. Paul never votes for legislation unless the proposed measure is expressly authorized by the Constitution." [Paul.house.gov, accessed 1/25/11]
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