Does Reid bill mandate abortion coverage in exchanges?

So argues CNS News, which looks at the same section of the Harry Reid version of ObamaCare that will get its first procedural test today.  Section 1303 purports to forbid federal funds from subsidizing abortions or abortion coverage, but those restrictions are never explicitly spelled out in the text, unlike the Stupak amendment, as I wrote earlier this week.  But CNS’ Terence Jeffrey looks more closely at 1303 and notices a mandate in the language that gives the exact opposite of what Bart Stupak intended:

Senate Majority Harry Reid (D.-Nev.) late Wednesday published the final text of a Senate health care bill that would mandate federally subsidized abortion.

The mandate appears on page 120 of the 2,074-page bill under the seemingly innocuous heading: ‘Assured Availability of Varied Coverage Through Exchanges.”

Specifically, the provision requires that the secretary of Health and Human Services make certain that at least one health insurance plan offered in government-regulated insurance exchanges where people will be able to purchase health insurance using government subsidies must provide coverage of abortion. The secretary also must make certain that at least one plan available in the exchanges not cover abortions.

The relevant language says: “The Secretary shall assure that with respect to qualified health plans offered in any Exchange established pursuant to this title—(I) there is at least one such plan that provides coverage of services described in clauses (i) and (ii) of subparagraph (B); and (II) there is at least one such plan that does not provide coverage of services described in subparagraph (B)(i).”

The clause “(i)” of “subparagraph (B)” referred to in this passage defines those types of abortions currently banned from receiving federal funding under the Hyde Amendment. The Hyde Amendment bans federal funding for all abortions except those done in cases of rape, incest and a threat to the life of the mother. So, the language of Sen. Reid’s health care bill mandates that at least one health insurance plan available to people buying health insurance with federal subsidies cover those abortions that are currently prohibited from receiving federal funding under the Hyde Amendment.

At least ostensibly, this is an unfunded mandate on the states, which run the exchanges.  What happens when no insurer in the state offers abortion coverage?  At the moment, 87% of all abortions are purchased outside of third-party payers, so this is not an academic question.  Do the feds intend to shut down an exchange that doesn’t offer an abortion plan?  Or do they expect the states then to cover abortions instead?

But what this appears to be is a ready-made trigger for federal intervention.  In my earlier piece, I noted the weak restrictions in 1303, which relied on this odd construction:

(i) ABORTIONS FOR WHICH PUBLIC FUNDING IS PROHIBITED.—The services described in this clause are abortions for which the expenditure of Federal funds appropriated for the Department of Health and Human Services is not permitted, based on the law as in effect as of the date that is 6 months before the beginning of the plan year involved.

That relies on the Hyde Amendment, which many people think is a perpetual law, but actually has to get re-enacted each year.  Once the Hyde Amendment fails to pass, federal monies can then go to pay for abortions through the HHS — and now through ObamaCare as well.  Stupak’s language replaced the Hyde Amendment with explicit language:

(a) IN GENERAL.-No funds authorized or appropriated by this Act (or an amendment made by this Act) may be used to pay for any abortion or to Cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers·from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act of rape or incest.

Once Congress stops re-enabling the Hyde Amendment, the mandates in Reid’s Section 1303 will force the federal government  to supply the coverage for abortion where state exchanges have none.  It will give the federal government an entree into broader health-insurance offerings, and that will have one ironic effect: it will crowd out those few private insurance plans that offer elective abortion coverage.  Where Stupak’s opponents insisted that his language would create a “price signal” that would encourage private insurers to abandon abortion coverage, this would all but guarantee the same result, as private insurers would get undercut by the federal plan that would come into play.

This is nothing more  than a mandate for federally-funded abortions.  How long would it take a court to make that same determination?  I suspect that Planned Parenthood and NARAL already have their legal counsel preparing for it.