The Affordable Care Act (ACA), aka Obamacare was, and continues to be, a disaster on several fronts. Not only has the cost of insurance skyrocketed and the quality of care declined, but there are legitimate concerns over abortion funding in tax-dollar subsidized plans. The ACA is not subject to the Hyde Amendment, which prohibits federal funding of elective abortions, because it “self-appropriates” and was intentionally drafted to sidestep Hyde.
The Hyde Amendment was first introduced by Rep. Henry Hyde over 40 years ago and has been estimated to have saved over two million lives. However, the Hyde Amendment is not government-wide. It is adopted every year through the appropriations process and only applies to certain authorizations outside of the appropriations process, such as the Child Health Insurance Program. As noted above, Hyde does not apply to the ACA.
In 2009, the Democrat-controlled House was drafting early versions of the ACA. During markup in the Energy and Commerce Committee, Reps. Stupak (D-Michigan) and Pitts (R-Pennsylvania) offered three pro-life amendments based on the principle that abortion is not health care. All amendments were defeated and, instead, a measure by Rep. Capps (D-California) was adopted which allowed the funding of abortion-covering plans using an accounting gimmick. This amendment made it into a final version of the ACA that was put on the House floor, but Stupak and a coalition of pro-life Democrats refused to vote for the rule until they received a vote on the Stupak-Pitts Amendment. This amendment prohibited abortion funding in a government insurance program and prohibited federal subsidies for insurance plans that covered abortion. The amendment passed 240-194, and the House passed H.R. 3962.
Senate draft versions of the ACA contained Capps-like language. Sens. Hatch (R-Utah) and Nelson (D-Nebraska) offered an amendment similar to Stupak-Pitts that was tabled by the Senate. Instead, the Senate made hollow changes to the Capps language regarding “separate” payments to secure the vote of Sen. Nelson. The accounting gimmick would allocate a portion of an individual’s premium for elective abortion funding. In a Senate floor speech, Sen. Nelson explained this would include separate checks, a fact the Obama Administration completely ignored.
The special election of Sen. Scott Brown (R-Massachusetts) cost the Democrats their supermajority in the Senate, which complicated things. Senate Democrats voted for the ACA on Christmas Eve, but that bill was never supposed to be final; the differences between that bill and the House bill were to be worked out in conference. House Democrats were forced to pass the Senate version with minor changes that wouldn’t require Senate approval, plus a reconciliation bill (which only requires simple majority in the Senate to pass) to make fixes to the Senate bill, but Rep. Stupak continued to publicly oppose the Senate language. Ultimately, Rep. Stupak conceded and voted for the bill in exchange for an executive order (EO). The House passed the bill, and it was signed into law on March 23, 2010, and the promised EO, that merely reiterated the Capps principles and, therefore, was completely worthless, was issued on March 24.
The law, section 1303 of the ACA, requires abortion-related services to be collected via a separate payment, which must be at least $1 per enrollee per month, to be collected and kept in a separate fund. However, enforcement was left up to the Department of Health and Human Services (HHS), and President Obama issued guidance that said separate payments could be collected together. Seriously. This means that taxpayer dollars through subsidies and cost-sharing reduction payments are co-mingled with funds that pay for elective abortions.