Now half a year since the opening of the 2016 Obamacare enrollment period, new state abortion mandates are just coming to light in New York. The Catholic Diocese of Albany and 12 other entities who have deeply-held objections to abortion were recently informed they had been covering elective abortions, unbeknownst to them, in their employer insurance plans under two state abortion mandates.
Earlier this month, the 13 groups – including Baptist, Catholic, Episcopal, and Lutheran churches, Catholic Charities agencies, a privately held organization and an employee of a religious organization – sued the New York State department that issues and enforces health insurance regulations as well as each of the plaintiffs’ respective insurance companies. According to the lawsuit, the state department and companies failed to notify them prior to the policy change as required by state statute. In response, they are seeking enjoinment of the mandates and the court’s judgment that the mandates violate the U.S. Constitution and New York law.
The two abortion mandates stem from the health insurance “model language,” approved and enforced by the New York State Department of Financial Services (NYSDFS), and, separately, the interpretation of “medically necessary” outpatient surgery. Without legislative enactment, the NYSDFS-approved language and interpretation have already had the real-world effect of forcing churches and others who conscientiously object to abortion to “fund, provide, and cooperate” with “therapeutic” (elective) and “non-therapeutic” abortions, according to the complaint.
The 13 groups explain how they came to discover their coverage of abortion, stating,
“Plaintiffs were caught unawares during the current renewal/enrollment period, when upon objecting to the ‘Model Language’ Abortion Mandate, they were informed that they had been separately covering abortions under the service category of ‘medically necessary’ surgery.”
By the suit’s May 4th filing, the groups maintain that this second mandate of interpretation: “has been known only to NYSDFS and health insurers and [was] never disclosed to plaintiffs”; “is neither identified nor disclosed” by NYSDFS or insurance companies; and is “encrypted in health insurance contracts under the rubric of ‘medically necessary’ surgery.”
As for the first “model language” mandate, NYSDFS approved the abortion coverage language for insurance companies on April 26, 2016. According to NYSDFS’ website, this template language applies to “all comprehensive individual and small group hospital, surgical, medical health insurance products sold both inside and outside of the NY Health Benefits Exchange” – that is, plans sold “on” and “off” the Obamacare state exchange. The language that insurance companies must include reads:
Though the language also includes a note that “religious employers” or “any large group” employers may exclude abortion coverage, the Albany Diocese and groups contend that the definition cited for “religious employers” is narrow enough to disqualify them. The affected groups state in the lawsuit that the abortion mandates “draw explicit and deliberate distinctions between different religiously-affiliated organizations for the purpose of exempting certain religious organizations, and excluding others from exemptions.” The churches and others maintain that this deliberate preference violates the Establishment Clause and the Preference Clause of New York’s constitution.
Aside from this, the affected groups argue the mandates violate the federal Hyde/Weldon Conscience Protection Amendment which protects physicians, nurses, hospitals, health insurance companies, health insurance plans or any other health care facility, if they receive federal money, from being forced by state government to “perform, pay for, provide coverage for, or refer for abortions.”
Bishop Scharfenberger of the Catholic Diocese of Albany summarizes the case in his May 12 column, saying,
“What is objectionable in the mandates is not only that they force us to fund and participate in actions that are gravely immoral and contrary to our religious beliefs and conscience, but also that they were promulgated and enforced under color of law, without our knowledge and in clear violation of the law.”
Regarding the lack of transparency, the Charlotte Lozier Institute (CLI) has previously documented the continuing difficulties of trying to ascertain the abortion coverage policies of individual and family health plans on the Obamacare exchanges. Together with Family Research Council, CLI has researched these plans and published which ones do and do not cover elective abortions via www.ObamacareAbortion.com.
Though small group employer plans are not a focus of the project, it is worth noting that Independent Health – one of the companies being sued by the 13 entities – does not provide information about its abortion coverage policy in its public Summary of Benefits and Coverage documents for individuals and families. When CLI called the company in November 2015 during open enrollment, a representative acknowledged the abortion information “may not be online, but that it’s in the Contract.” When asked for the contract, the representative said they could not share it prior to enrollment, and then stated that elective abortion was covered. More examples of such statements from New York companies and others can be found here.
The defendants in this case are: Maria T. Vullo, acting superintendent of NYSDFS; Capital District Physicians’ Health Plans; Blue Shield of Northeastern New York; UnitedHealthcare of New York; MVP Health Care; Excellus Health Plan; and Independent Health Association.
On May 13, NYSDFS responded that they are reviewing the complaint. According to an update from the Albany diocese, NYSDFS and other defendants have 30 days from the May 4th filing to respond. This latest scenario highlights the need for federal legislation to strengthen conscience protections for those who object to participation in abortion, enforce transparency of abortion coverage in health plans prior to enrollment, and remove taxpayers from the equation of subsidizing abortion as a “health benefit.”
Genevieve Plaster is a research assistant for the Charlotte Lozier Institute.