Fox News falsely suggests Senate bill "allows funding for abortion" inconsistent with Hyde Amendment

Fox News caption claims "CURRENT BILL ALLOWS FUNDING FOR ABORTION"

From the December 7 edition of Fox News' Fox & Friends:

Senate bill explicitly prohibits federal funding of abortions not covered under Hyde

Bill requires HHS secretary to ensure that public option uses "no Federal funds" in providing abortion coverage beyond Hyde. Section 1303(a)(1)(C) of the Senate bill, titled "Prohibition on federal funds for abortion services in community health insurance option," explains that the Health and Human Services secretary must ensure that "no Federal funds are used for such coverage" as outlined in Section 1303(a)(1)(B)(i). That section is defined as "Abortion for which public funding is prohibited," and describes abortions for which federal funding is prohibited under the Hyde Amendment.

From Section 1303(a)(1)(C) of the bill:

(C) PROHIBITION ON FEDERAL FUNDS FOR ABORTION SERVICES IN COMMUNITY HEALTH INSURANCE OPTION. --

(i) DETERMINATION BY SECRETARY. -- The Secretary may not determine, in accordance with subparagraph (A)(ii), that the community health insurance option established under section 1323 shall provide coverage of services described in subparagraph (B)(i) as part of benefits for the plan year unless the Secretary-

(I) assures compliance with the requirements of paragraph (2);

(II) assures, in accordance with applicable provisions of generally accepted accounting requirements, circulars on funds management of the Office of Management and Budget, and guidance on accounting of the Government Accountability Office, that no Federal funds are used for such coverage; and

(III) notwithstanding section 1323(e)(1)(C) or any other provision of this title, takes all necessary steps to assure that the United States does not bear the insurance risk for a community health insurance option's coverage of services described in subparagraph (B)(i).

From Section 1303(a)(1)(B) of the Senate bill:

(B) ABORTION SERVICES. --

(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.

Bill requires states to ensure that "no ... Federal funds ... pay or defray the cost of" such coverage. The bill further specifies that states are required to "assure that no funds flowing through or from the community health insurance option, and no other Federal fund, pay or defray the cost of providing coverage of services described in subparagraph (B)(i)."

From Section 1303(a)(1)(C) of the Senate bill:

(C) PROHIBITION ON FEDERAL FUNDS FOR ABORTION SERVICES IN COMMUNITY HEALTH INSURANCE OPTION. --

[...]

(ii) STATE REQUIREMENT.-If a State requires, in addition to the essential health benefits required under section 1323(b)(3)(A), coverage of services described in subparagraph (B)(i) for enrollees of a community health insurance option offered in such State, the State shall assure that no funds flowing through or from the community health insurance option, and no other Federal funds, pay or defray the cost of providing coverage of services described in subparagraph (B)(i). The United States shall not bear the insurance risk for a State's required coverage of services described in subparagraph (B)(i).

Bill prohibits health insurers from using federal subsidies "for the purposes of paying for" abortion services restricted by Hyde. The bill states that if a "qualified health plan" offered under the health insurance exchange provides coverage of abortion services for which public funding is banned, "the issuer of the plan shall not use any amount attributable" to the subsidies created under the bill "for purposes of paying for such services" and must segregate funds for that purpose.

From Section 1303(a)(2) of the Senate bill:

(2) PROHIBITION ON THE USE OF FEDERAL FUNDS. --

(A) IN GENERAL. -- If a qualified health plan provides coverage of services described in paragraph (1)(B)(i), the issuer of the plan shall not use any amount attributable to any of the following for purposes of paying for such services:

(i) The credit under section 36B of the Internal Revenue Code of 1986 (and the amount (if any) of the advance payment of the credit under section 1412 of the Patient Protection and Affordable Care Act).

(ii) Any cost-sharing reduction under section 1402 of the Patient Protection and Affordable Care Act (and the amount (if any) of the advance payment of the reduction under section 1412 of the Patient Protection and Affordable Care Act).

(B) SEGREGATION OF FUNDS. -- In the case of a plan to which subparagraph (A) applies, the issuer of the plan shall, out of amounts not described in subparagraph (A), segregate an amount equal to the actuarial amounts determined under subparagraph (C) for all enrollees from the amounts described in subparagraph(A).

Bill requires HHS secretary to ensure that segregated funds are sufficient to pay for abortion services. The bill states that the HHS secretary "shall estimate the basic per enrollee, per month cost, determined on an average actuarial basis, for including coverage under a qualified health plan of" abortions restricted by the Hyde Amendment. As noted above, insurers must, for all enrollees, out of non-federal funds segregate the actuarial amount estimated by the Secretary for abortion services restricted by the Hyde Amendment from federal funds.

From Section 1303(a)(2)(C):

(C) ACTUARIAL VALUE OF OPTIONAL SERVICE COVERAGE. --

(i) IN GENERAL. -- The Secretary shall estimate the basic per enrollee, per month cost, determined on an average actuarial basis, for including coverage under a qualified health plan of the services described in paragraph (1)(B)(i).

(ii) CONSIDERATIONS.-In making such estimate, the Secretary --

(I) may take into account the impact on overall costs of the inclusion of such coverage, but may not take into account any cost reduction estimated to result from such services, including prenatal care, delivery, or postnatal care;

(II) shall estimate such costs as if such coverage were included for the entire population covered; and

(III) may not estimate such a cost at less than $1 per enrollee, per month.

Current law allows coverage for abortions restricted by Hyde under Medicaid through similar fund segregation

Seventeen states use state funds to cover abortions for Medicaid recipients in circumstances beyond Hyde. According to a December 1 study by the Guttmacher Institute, 17 states provide coverage under Medicaid for "all or most medically necessary abortions," not just abortions in cases of life endangerment, rape, and incest. Those states "us[e] their own funds" -- not federal funds -- "to pay" for the procedures. Therefore, in 17 states, Medicaid, a federally subsidized health care program, covers abortions in circumstances in which federal money is prohibited from being spent on abortion.