States Sue Over Federal Hurdles to Abortion Coverage

OAKLAND, Calif. (CN) – Led by California, a coalition of six states and the District of Columbia sued the U.S. Department of Health and Human Services Thursday over what they consider insidious restrictions on reproductive rights and barriers to insurance coverage for abortions.

In December, the federal health department issued a final rule requiring health insurance plans that participate in state exchanges—like Covered California—to bill policy holders at least $1 for abortion care in a separate invoice from the rest of their coverage.

(Nick Agro/The Orange County Register/SCNG via AP, File)

A federal lawsuit filed by California Attorney General Xavier Becerra called the requirement onerous and confusing for states and policy holders alike.

In the lawsuit, Becerra denounced the proposal of two separate invoices and the burden of having to submit a separate payment for abortion services as both “plainly unnecessary,” and another reminder of the red tape tied around a woman’s constitutional right to an abortion.

“The rule’s sole function is to make it more burdensome and more confusing for women to pay for health plans that include legal abortion services, and frustrate the receipt of such coverage in states that require or allow it,” Becerra’s complaint says. “Further, for many women, access to a health plan that includes abortion coverage is a necessary antecedent to the ability to exercise the legal right to obtain the procedure. Forcing women to adapt to onerous and nonsensical billing practices in order to maintain abortion coverage is discriminatory.”

The lawsuit speculates that the separate billing and payment requirements – and the added confusion they cause – will probably cause policy holders to lose their health care coverage because the HHS does not prohibit insurance companies from terminating coverage if people forget to pay the $1 abortion care premium.

Perhaps anticipating some confusion, HHS explained in a fact sheet on the rule: “We urge issuers to state clearly on both bills that the policy holder is receiving two bills to cover the total amount of premium due for the coverage period, that the consumer’s total premium due is inclusive of the amount attributable to non-Hyde abortion coverage, and that the policy holder should make separate payments for each bill.”

It also said that while health plans should ask policy holders to pay the bill for abortion care separately, issuers cannot terminate policies on this basis as long as the abortion premium is paid.

The HHS has couched the rule as a way of ensuring that the Affordable Care Act does not illegally fund abortion in accordance with the Hyde Amendment, a 1976 law that excludes abortion from government insurance plans.

In a statement following the release of the rule in December, HHS Secretary Alex Azar said, “Providing these separate bills is an essential step in implementing the Affordable Care Act’s bar on tax credits going toward coverage of abortions for which public funding is prohibited. The separate billing requirement fulfills Congress’ intent and reflects President Trump’s strong commitment to preventing taxpayer funding of abortion coverage.”

Becerra said the rule will cause states and insurance companies to incur substantial costs, both to comply with the rule and maintain separate billing systems. The lawsuit estimates that initial costs could be as much as $740 million in 2020. This could force health insurers to drop coverage for abortions altogether, Becerra said.

“This new rule is just another Trump Administration attack on women and reproductive rights,” Becerra said in a statement Thursday. “We have a long history of protecting women’s access to comprehensive reproductive health care, including abortion. We won’t let an unlawful administrative rule change that. And we will defend California’s ability to enact and enforce laws that promote the health of its residents.”

Becerra is joined by attorneys general from New York, District of Columbia, Maine, Maryland, Oregon, and Vermont. They ask the court to set aside the rule as an unlawful interpretation of the Affordable Care Act.

The Health and Human Services Department did not return an email seeking comment.

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