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Health Reform and Abortion Coverage

Health Reform and Abortion Coverage in the Insurance Exchanges

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NCSL Health Reform Resources

April 2014

The Affordable Care Act includes provisions that govern insurance coverage of abortion in state insurance exchanges, which will be launched in 2014. The ‘Special Rules’ (Section 1303) of the law and the related White House executive order contain these new provisions. The law maintains current Hyde Amendment restrictions that govern abortion policy, which prohibit federal funds from being used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), and extends those restrictions to the newly created health insurance exchanges.

The new health reform law also maintains federal "conscience" protections for health care providers who object to performing abortion or sterilization procedures that conflict with their beliefs.  In addition, the law provides new protections that prohibit discrimination against health care facilities and providers who are unwilling to provide, pay for, provide coverage of, or refer women for abortions. The law allows states (through legislation) to prohibit abortion coverage in qualified health plans offered through an exchange. If insurance coverage for abortion is included in a plan in the exchange, a separate premium is required for this coverage paid for by the policyholder. In addition, the "Patient Protection and Affordable Care Act's Consistency with Longstanding Restrictions on the Use of Federal Funds for Abortion" executive order establishes an enforcement mechanism to ensure that federal funds are not used for abortion services, consistent with existing federal statute.


State Laws that Restrict Insurance Coverage for Abortion in Insurance Exchanges

Since the enactment of the Affordable Care Act in March 2010, at least 21 states—Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia and Wisconsin—have enacted legislation to restrict coverage for abortion in their insurance exchanges.

Alabama 2012 Ala. Acts, Act 405, enacted 5/15/12

The law establishes the Federal Abortion Mandate Opt Out Act and opts out of allowing abortion coverage by a qualified health plan offered through an exchange created within the state. The law exempts abortions when the life of the mother is endangered.  (Senate Bill 10)

Arizona

2010 Ariz. Sess. Laws, Chap No. 114,  enacted 4/24/10

The law expands on provisions that prohibit the use of public funds to finance abortions by prohibiting the funding of abortion in insurance coverage; the law also provides a few exemptions. The law prohibits any qualified health insurance policy, contract or plan offered through any state health care exchange established from providing coverage for abortions unless the coverage is offered as a separate optional rider for which an additional insurance premium is charged. The law prohibits public and tax monies of this state or any political subdivision of the state from directly or indirectly paying the costs, premiums or charges associated with a health insurance policy, contract or plan that provides coverage, benefits or services related to the performance of any abortion. Exemptions to this provision include saving the life of the woman having the abortion and averting impairment of a major bodily function. In addition, this section does not prohibit the state from complying with the federal law requirements. (Senate Bill 1305)

Arkansas 2013 Ark. Acts, Act 72, enacted 2/11/13
The law prohibits a qualified health plan offered through a state health insurance exchange from including coverage except through a separate rider. Elective abortion is defined as an abortion for any reason other than to prevent the death of the mother, or in cases of rape or incest. The law does not prevent an individual from purchasing optional supplemental coverage for elective abortions by paying a separate premium in the health insurance market outside of the state health insurance exchange. The law also provides rules related to premium costs and enrollment for optional supplemental abortion coverage. (House Bill 1100)

Florida

2011 Fla. Laws, Chap. 111, enacted 6/2/11

The law requires that health insurance policies, including group, franchise, or blanket policies and health maintenance contracts and state employee coverage, purchased with any state or federal funds through an exchange not provide coverage for an abortion with stated exceptions. Exceptions include if the pregnancy is the result of an act of rape or incest, or in the case where a woman suffers from a physical disorder, injury or illness, including a life-endangering physical condition caused by or arising from the pregnancy, as certified by a physician, place the woman in danger of death unless an abortion is performed. Coverage is considered to be purchased with state or federal funds if any tax credit or cost-sharing is applied toward the health insurance policy. However, health insurance policies are not permitted from offering separate coverage for an abortion if such coverage is not purchased with state or federal funds. (House Bill 97)

Idaho

2011 Idaho Sess. Laws, Chap. 152, enacted 4/1/11

The law prohibits any health plans that provide abortion coverage from participating in the state insurance exchange. Exceptions are provided for cases of rape and incest and when necessary to save the life of the mother. (Senate Bill 1115)

Indiana

2011 Ind. Acts, P.L. 193, enacted 5/10/11

Among other provisions, the law prohibits qualified health care plans sold in the insurance exchanges from providing coverage for abortion. The law allows for exemptions in the cases of rape, incest, and in cases where necessary to avert the pregnant woman's death or a substantial and irreversible impairment of a major bodily function of the pregnant woman. (House Bill 1210)

Kansas

2011 Kan. Sess. Laws, Chap. 111, enacted 6/02/11

Among other measures, the law requires the insurance exchange to exclude coverage of elective abortions. Elective abortion may only be covered through an optional rider. (House Bill 2075)

Louisiana          

2010 Acts, P.A. 941, enacted 7/2/10

The law prohibits elective abortions in the state health exchange. In accordance with the federal Patient Protection and Affordable Care Act as well as longstanding policies of the state related to abortion, the law states that no health care plan required to be established in this state through an exchange shall offer coverage for abortion services. (House Bill 1247)

Michigan Mich. Comp. Laws § 550.541 et seq. enacted 12/12/13
The law prohibits qualified health plans offered through the exchange from providing coverage for elective abortion, but allows riders offered outside of the exchange to be purchased for this coverage. In addition, employers may purchase an optional rider for coverage of an elective abortion, and must notify each employee that such coverage is provided and may be used by a covered dependent without notice to the employee. (2014 Mich. Pub. Acts, Act 182)
Note: this legislation was brought to the legislature by a statewide proposal for initiation of legislation. Through this process, the legislation is not subject to approval or veto from the governor, and becomes law ninety days after session ends.

Mississippi

2010 Miss. Laws, Chap.563, enacted 6/1/10

The law creates the Federal Abortion-Mandate Opt-Out Act, which prohibits the use of federal funds to pay for elective abortions covered by private insurance in the state through a health care exchange. The law provides that no abortion coverage may be provided by a qualified health plan offered through an exchange created pursuant to the federal Patient Protection and Affordable Care Act within the State of Mississippi. The act states that this limitation shall not apply to an abortion performed when the life of the mother is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, or when the pregnancy is the result of an alleged act of rape or incest.  The physician is required to maintain sufficient documentation in the medical record that supports the medical necessity or reason for the abortion. (Senate Bill 3214)

Missouri

Missouri Rev. Stat. 188.027, 188.039, 334.245, and 376.805, enacted 7/14/10

Among other abortion-related provisions, the law prohibits insurance plans or policies that provide coverage for elective abortions from inclusion in the state health insurance exchange.  Elective abortions are defined as any abortion for any reason other than a spontaneous abortion or to prevent the death of the woman receiving the abortion.  The law also prohibits coverage for elective abortions through the purchase of an optional rider within the exchange. (Senate Bill 793)

Nebraska

Neb. Rev. Stat. § 44-8401, 44-8402, 44-8403, 44-8404, enacted 5/18/11

The law adopts the Mandate Opt-Out and Insurance Coverage Clarification Act, provides that no abortion coverage shall be provided by a qualified health insurance plan through a health insurance exchange pursuant to the federal Patient Protection and Affordable Care Act within the state, and exempts abortions that are verified in writing by the attending physician as necessary to prevent the death of the woman. The law provides that no insurance plan or contract shall provide coverage of an elective abortion except with an optional rider to the policy for which an additional premium is paid solely by the insured, includes self-funded plans. (Legislative Bill 22)

North Carolina

2013 N.C. Sess. Laws, Chap. 2013-366, enacted 7/29/13

The law prohibits a qualified health plan offered through an exchange from including coverage for abortion services. The law makes exceptions when the pregnancy is the result of rape, incest, or if the life of the mother is endangered by a physical disorder, physical illness, or physical injury. (Senate Bill 353)

Ohio Ohio Rev. Code § 3901.87, enacted 12/21/11
The law prohibits qualified health plans offered through a state exchange from providing coverage for nontherapeutic abortions, as defined in section 9.04 of the revised code. (House Bill 79)

Oklahoma

2011 Okla. Sess. Laws, Chap. 92, enacted 4/20/11

The law prohibits qualified health plans offered through a Health Insurance Exchange from covering elective abortion. The law also prohibits any health plan, including those offered outside of an exchange, from offering such coverage except by optional separate supplemental coverage. The law establishes premium requirements for such coverage and prohibits an insurer from discounting or reducing premiums on the basis of elective abortion coverage. (Senate Bill 547)

Pennsylvania

2013 Pa. Laws. Act 13, enacted 6/17/13

The law prohibits coverage for abortion services in qualified health plans offered through a health insurance exchange unless the abortion is performed in compliance with 18 Pa.C.S. § 3215(c), which permits the use of public funds for an abortion necessary to avert the death of the mother on certification from a physician, or performed in cases of rape or incest. Qualified health plans offered through a health insurance exchange cannot exclude coverage for any post-abortion complication, any miscarriage or any complication associated with a miscarriage. The law does not prohibit an individual from purchasing supplemental abortion coverage outside a health insurance exchange by paying a separate premium. (House Bill 818)

South Carolina 2012 S.C. Acts, Act 202, enacted 6/7/12 

The law prohibits qualified health plans offered through a health care exchange from offering abortion coverage. The law provides for exceptions when the life of the mother is endangered or when the pregnancy is the result of rape or incest. (Senate Bill 102)
South Dakota 2012 S.D. Sess. Laws, Chap. 245, enacted 3/12/12
The law prohibits any qualified health plan offered through a health care exchange from including abortion coverage, except in the case of medical emergencies. (House Bill 1185)

Tennessee

2010 Tenn. Pub. Acts, Chap. 879, enacted 5/11/10

The law prohibits coverage for abortion services under any health care plan through an exchange required to be established in this state pursuant to federal health care reform legislation. (House Bill 2681 and companion Senate Bill 2686)

Utah

Utah Code § 31A 22-726, enacted 3/23/11
The law limits the type of abortion coverage that may be offered in any health benefit plan, state health insurance exchange, or federally mandated health insurance exchange. Permitted abortion coverage is limited to those necessary to avert the death or significant and irreversible impairment of a major bodily function for the pregnant woman, abortions performed if a fetus has a defect that is lethal, or abortions where the woman is pregnant as a result of rape or incest. (House Bill 354)

 Virginia

2013 Va. Acts, Chap. 751, enacted 4/3/13
Among other provisions, the law prohibits qualified health insurance plans sold or offered for sale through an exchange established or operating in the state from providing coverage for abortions, regardless of whether such coverage is provided through the plan or is offered as a separate optional rider.  The law exempts abortions performed when the life of the mother is endangered by a physical disorder, physical illness, or physical injury, or when the pregnancy is the result of an alleged act of rape or incest. (House Bill 1900)

 

2011 Va. Acts, Chap. 823, enacted 4/6/11

The law states that it is the intent of the General Assembly that the Commonwealth create and operate its own health benefits exchange or exchanges that meet the relevant requirements of the federal Affordable Care Act. In addition, no plans are to be sold or offered for sale through an exchange that provide coverage for abortion; this provision shall not apply to an abortion performed when the life of the mother is in danger or when the pregnancy is a result of alleged rape or incest. (House Bill 2434)

Wisconsin 2011 Wis. Laws, Act 218, enacted 4/6/12
The law prohibits a qualified health plan offered through any health care exchange operating in the state from covering an abortion, as defined in S. 253.10 (2) (a). (Senate Bill 92)

 


State Laws that Restrict Insurance Coverage for Abortion, Enacted before the Affordable Care Act

Prior to the enactment of the Affordable Care Act, at least five states—Idaho, Kentucky, Missouri, North Dakota and Oklahoma—had laws that restrict insurance coverage for abortion.

Idaho

Idaho Code §41-2142, §41-2210A§41-3439. Enacted 1983.

The law limits benefits for elective abortion for various insurance policies within the state, and requiring these policies to exclude coverage for elective abortions. Exclusion of this coverage may be waived if a separate premium is paid, and the availability of coverage is the option of the insurance carrier. Elective abortion is defined as an abortion for any reason other than to preserve the life of the female upon whom the abortion is performed.

Kentucky

Ky. Rev. Stat. §304.5-160. Enacted 1978.

The law prohibits health insurance and health care contracts in the state from providing coverage for elective abortions except by an optional rider for which there must be paid an additional premium.  Elective abortion is defined as an abortion for any reason other than to preserve the life of the female upon whom the abortion is performed.

Missouri              

Mo. Rev. Stat. §376.805. Enacted 1983.

The law prohibits health insurance contracts, plans, or policies from providing coverage for elective abortions except by an optional rider for which there must be paid an additional premium. Elective abortion is defined as an abortion for any reason other than a spontaneous abortion or to prevent the death of the female upon whom the abortion is performed.

North Dakota

N.D. Cent. Code §14-02.3-03.  Enacted 1979.

The law states that health insurance contracts, plans, or policies may not provide coverage for abortions except by an optional rider for which there must be paid an additional premium. This does not apply to an abortion necessary to prevent the death of the woman. 

Oklahoma

Okla. Stat. Ann. tit. 63, §1-741.2.  Enacted 2007.

The law prohibits health insurance contracts, plans, or policies from providing coverage for elective abortions except by an optional rider paid by an additional premium.  Elective abortion is defined as an abortion for any reason other than a spontaneous miscarriage, to prevent the death of the woman, or when the pregnancy resulted from rape reported to the proper law enforcement authorities or when the pregnancy resulted from incest committed against a minor and the perpetrator has been reported to the proper law enforcement authorities.

 Source: StateNet and the National Conference of State Legislatures, 2014.

 

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