Does Congress’ ObamaCare waiver fund abortion coverage?
posted at 2:01 pm on August 16, 2013 by Ed Morrissey
So says Rep. Chris Smith (R-NJ), who authored statutes explicitly to stop federal funds from being used to pay for abortion coverage. The recent extra-constitutional step from the Obama administration to keep Congress from experiencing the same consequences of ObamaCare that other employers face — despite another statute included in the ACA that explicitly requires Congress to do so — has vague enough language that the federal government might be picking up the tab for abortion coverage for Capitol Hill employees:
Last week, the White House Office of Personnel Management said the government would keep paying its share of premiums for lawmakers and affected staffers who must leave the federal employee health care system by Jan. 1. That eased a major anxiety for several thousand staffers accustomed to getting the same benefits as other federal employees.
But the proposed regulation did not explicitly address abortion coverage. Under the health care law, insurance plans in the new markets may cover abortion unless a state passes a law prohibiting them from doing so. Plans offering coverage for abortion, however, may not use federal funds to pay for it and must collect a separate premium from enrollees. Federal tax credits to help the uninsured afford coverage must also be kept apart.
Abortion opponents say the proposal from the personnel office would circumvent a longstanding law that bars the use of taxpayer funds for “administrative expenses in connection with any health plan under the federal employees health benefits program which provides any benefits or coverage for abortions.” Unlike many private corporate plans, federal employee plans only cover abortions in cases of rape, incest or to save the life of the mother.
“Under this scheme (the government) will be paying the administrative costs,” said Rep. Chris Smith, R-N.J., author of abortion funding ban for federal employee plans. “It’s a radical deviation and departure from current federal law, and it’s not for all federal employees, but for a subset: Congress. Us.”
That’s really the most objectionable part of this attempt to get around the clear meaning of the statute. The ACA screws up plenty of benefit plans and compensation strategies for employers in the private sector. Why should Congress exempt itself from those consequences? Senator Chuck Grassley added those statutes explicitly to force Congress to suffer from the same issues it created for everyone else, but the White House doesn’t want any momentum to build in Congress for delaying or significantly altering the ObamaCare scheme. Instead of going to Congress to change this part of the ACA — which would have been a humiliating exercise in sheer hypocrisy, and likely wouldn’t have gone far because of it — Obama simply decreed that Congress didn’t have to comply with the law at all.
But will this lead to taxpayer funding of abortions for the governing class? That would be bitterly ironic, since federal funds can’t go to abortions for anyone else (and for damned good reasons, too). Unfortunately, as the AP’s Ricardo Alonso-Zaldivar notes, ObamaCare and other federal statutes are so arcane that it is almost impossible to tell:
“This goes into a legal thicket the complexity of which I can’t begin to fathom,” said Walton Francis, lead author of an annual guide to federal health benefits. “It would take lawyers hours to decipher the interrelationship between these statutes, and they would probably come to different conclusions.”
It’s even legally murky whether the government can continue to pay its regular share of the premiums for lawmakers and staffers, he added.
It’s only murky if one believes that the President and Congress can ignore statutory law that they find inconvenient, even when it’s the law they pushed themselves. The rational action at this point would be to bring the whole mess to a halt, but thanks to the removal of the disincentive that Grassley explicitly included, don’t expect Democrats in the Senate to allow that.