The fact that the Graham-Cassidy bill, like all of the prior Republican "replacement" healthcare bills, screws over people on both Medicaid and the individual market starting in 2020 is hardly news. A few provisions of the ACA are stripped out and/or bastardized immediately (and some, like the individual mandate penalty, are even repealed retroactively), but for the most part the pain doesn't start for another 2 years, well after the midterms are over.
However, JP Massar called something to my attention this morning:
Graham-Cassidy, Sections 102 and 103:
Section 102: Modification and Repeal of Premium Tax Credits
- Excludes from the definition of QHP a plan that provides coverage for abortions (except if necessary to save the life of the mother or if the pregnancy is the result of rape or incest), beginning tax year 2018.
- Repeals the ACA premium tax credits as of January 1, 2020
Section 103: Modification and Repeal of Small Business Tax Credits
- Starting in 2018, amends IRC Section 45R to indicate that the term “qualified health plan” does not include any health plan that includes coverage for abortions, except abortions necessary to save the life of a mother or abortions for pregnancies that are a result of rape or incest.
- Repeals the small business health insurance tax credit beginning as of January 1, 2020.
Sure enough, here's the actual text from the bill itself:
If the no-abortion provision popped up starting in 2020, it would suck but would also be pretty much moot since the premium tax credits are wiped out starting then anyway.
However, the current ACA tax credit structure would stay in place for the next two years (2018-2019)...and this presents several problems:
- For 2019, any insurance policy sold on the ACA exchange would have to have abortion coverage stripped out of it. They could still sell the policies including abortion coverage off-exchange, but not on the exchanges...which means no one would be able to receive APTC subsidies or CSR assistance.
- For 2018, the same would apply...except that the deadline for signing 2018 individual market particpation contracts is in 8 days, while Graham-Cassidy likely wouldn't actually be signed into law for 9-10 days.
- That means that Graham-Cassidy would immediately make thousands of insurance policies which legally qualified as QHPs illegal less than 48 hours later...for an enrollment period which starts just 32 days later.
It's important to understand that legally, it's it doesn't matter whether the enrollee herself actually had an abortion, or whether she was even pregnant. What's relevant is whether the policy itself INCLUDED abortion coverage or not.
What would the legal implications of THAT be? Would the contracts become null and void? Would they have to be resubmitted? Would no one be allowed to purchase them on the exchanges, or would they be allowed to enroll in the policies, but only at full price? Would only men be allowed to enroll in those policies (which wouldn't make much sense since, again, the issue is whether the policy actually covers the procedure, not whether the enrollee is physically able to require it)?
The mind boggles.
BUT WAIT, if you live in California, it gets even worse!
The potential collision stems from how thoroughly California has embraced abortion rights, starting with enshrining a right to privacy in its Constitution. In 1981, a court ruled that, under the California Constitution, the state must treat abortion and maternal care neutrally. Any plan offered or regulated by the state that offers pregnancy coverage must also cover abortions.
State law now requires all policies in the individual and small group markets to cover abortion.
Does anyone else see the problem here?
California state law legally requires all individual/sm. group market policies to cover abortion.
Graham-Cassidy would, if it became federal law, legally prohibit individual/sm. group market policies which do cover abortion from being defined as "Qualified Health Plans".
Can anyone else say "states rights lawsuit"?
I'm a little surprised that neither Planned Parenthood nor NARAL appear to have mentioned this particular issue yet (PP tore Graham-Cassidy to shreds in general, but didn't mention the 2018 abortion restriction in their statement, while I don't see any specific G-C press release at all yet on NARAL's website, although they're strongly opposing it via Twitter). My guess is that this is a deliberate move on PP's part, since abortion is such a tiny part of what they actually do; plenty of other issues to attack G-C on.
In any event, this seems like something which deserves a bit more attention than it's received so far.