The Office of Personnel Management ruled Monday that members of Congress and their staffs will be able to buy health care plans that pay for abortions, even though the premiums are funded largely by taxpayer money — a move that conservatives say breaks federal law on abortion funding.
Under the terms of Obamacare, lawmakers and their aides are required to ditch their government-sponsored plans and buy insurance on state-based health care exchanges, though unlike most people on the exchanges, the staffers and members will have most of the costs of their premiums paid by their employer — in this case, taxpayers.
Federal law generally prevents taxpayer money from being used to pay for abortions, but OPM said the health care plans offered through the exchange were private. The agency also said it will make sure the money is segregated so that the portion that pays for abortions comes out of the employees' own contributions, which amounts to about a quarter of the premiums.
"While plans with such coverage may be offered on an Exchange, OPM can and will take appropriate administrative steps to ensure that the cost of any such coverage purchased by a member of Congress or a congressional staffer from a designated [exchange] is accounted for and paid by the individual rather than from the government contribution, consistent with the general prohibition on federal funds being used for this purpose," OPM said in its ruling.
Rep. Christopher H. Smith, New Jersey Republican, said OPM is violating a law he wrote in 1983 that prohibits OPM from paying any expenses to administer plans that cover abortion, except in cases of rape or incest or when the mother's life is in danger.
"You can't break the law, Mr. President, and just issue a final rule as if somehow you're comporting with the law," Mr. Smith told The Washington Times. "We don't want to subsidize abortion on demand, and the public is absolutely with us."
Democrats applauded the ruling, saying it ensures equal access to abortions.
"This decision honors the spirit of the Affordable Care Act, which is significantly improving health care for women," Reps. Rosa L. DeLauro of Connecticut and Louise McIntosh Slaughter of New York said in a joint statement. "All women, no matter where they work, deserve health care coverage that can meet their individual health care needs."
Mr. Smith said his law, which has been in effect for all but two years since 1983, has a long legislative history that is very clear, and he said the Obama administration ignored it.
He said he has asked lawyers in the House to see whether a lawsuit could be filed and that pro-life groups also are taking a look.
Contraception and abortion issues have bedeviled President Obama's health care law from the start. In 2010, when it was just a bill poised for final passage, pro-life Democrats balked and insisted on a special executive order from Mr. Obama guaranteeing federal funds wouldn't be spent on abortion.
More recently, the Obama administration ruled that sterilization and birth control, including emergency contraception that many pro-lifers denounce as potential abortifacients, are essential services that all health plans must cover.
That sparked a backlash from conservatives and many religious groups that argued they were being forced to pay for coverage to which they morally object.
Over the weekend, House Republicans included language in a stopgap spending bill designed to keep the government running that would have halted the contraceptive mandate for a year.
Sen. Mazie K. Hirono, Hawaii Democrat, said House Republicans added the provision in the middle of the night. She said the language was much broader than contraceptive coverage; it applies to screening for sexually transmitted diseases and other preventive services.
She and Sen. Barbara Boxer, California Democrat, called on Republicans to drop the provisions, which they said amounted to a "war on women."
"Anyone who has ever postponed a life-saving cancer screening because they couldn't afford it knows how cruel and dangerous this Republican shutdown plan is," Mrs. Boxer said to reporters Monday morning.
The language was in a religious-freedom amendment sponsored by Rep. Marsha Blackburn, Tennessee Republican.
"In addition to delaying Obamacare for one year, my amendment protects people from the radical HHS mandate which violates millions of Americans' deeply-held religious beliefs and it prevents taxpayer subsidies from going to insurance plans that include elective abortion coverage," Ms. Blackburn said in a statement.
The intent of the amendment is to preserve the religious freedom of Americans, and to allow individuals, not the Obama administration, to make the decision on controversial topics like contraception or abortion, said Mike Reynard, a spokesman for Ms. Blackburn.
However, the language in the bill does not list all the services to which religious objections might be raised.
Democrats say this means that an organization could deny screenings for sexually transmitted diseases or for cervical cancer. Mr. Reynard, however, said he has heard no evidence of any organization preventing such care.
By Monday evening, in a search for a new stopgap spending solution, House Republicans had dropped Ms. Blackburn's language.
Tony Perkins, president of the conservative Family Research Council, said in a statement that he wished House Republicans had kept fighting for it.
"We will fight to push for religious freedom protections and end abortion subsidies whether on a final CR or other must-pass legislation," Mr. Perkins wrote.
Last week, representatives from the U.S. Conference of Catholic Bishops sent a letter to the House and the Senate calling for any stopgap spending bill to preserve freedom of conscience rights on contraceptive coverage.
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