An attempt to fix a problem with the new health care law has created a situation in which members of Congress and their staffers could gain access to abortion coverage, something that currently is denied to federal employees who get health insurance through the government's plan.
Abortion opponents say the Obama administration needs to fix it; abortion rights supporters say the concern is overblown.
The abortion complication is a new headache for the administration as it tries to shoehorn members of Congress and certain staffers into insurance markets coming later this year under President Barack Obama's health care overhaul. An amendment by Iowa Republican Sen. Charles Grassley - who opposes the health care overhaul and abortion - requires lawmakers and their personal staff to get private coverage through the same markets that uninsured Americans will use.
Last week, the White House Office of Personnel Management said the government would keep paying its share of premiums for lawmakers and affected staffers who must leave the federal employee health care system by Jan. 1. That eased a major anxiety for several thousand staffers accustomed to getting the same benefits as other federal employees.
But the proposed regulation did not explicitly address abortion coverage. Under the health care law, insurance plans in the new markets may cover abortion unless a state passes a law prohibiting them from doing so. Plans offering coverage for abortion, however, may not use federal funds to pay for it and must collect a separate premium from enrollees. Federal tax credits to help the uninsured afford coverage must also be kept apart.
Abortion opponents say the proposal from the personnel office would circumvent a longstanding law that bars the use of taxpayer funds for "administrative expenses in connection with any health plan under the federal employees health benefits program which provides any benefits or coverage for abortions." Unlike many private corporate plans, federal employee plans only cover abortions in cases of rape, incest or to save the life of the mother.
"Under this scheme (the government) will be paying the administrative costs," said Rep. Chris Smith, R-N.J., author of abortion funding ban for federal employee plans. "It's a radical deviation and departure from current federal law, and it's not for all federal employees, but for a subset: Congress. Us."
Smith is calling on the personnel office to specify that lawmakers and staffers must choose a plan that does not cover abortions. The funding ban even bears his name: It's known as the Smith amendment.
The personnel office refused to answer questions about the issue on the record. Instead, its media office released a generic statement, saying: "Federal law prohibits the use of federal funds to pay for abortion except in the case of rape, incest or when the life of the woman is endangered. All plans available in the marketplaces will comply with the law."
Obama, who supports abortion rights, previously has said he does not want his health care overhaul to change existing laws on abortion.
A leading independent expert on the federal employee plan said abortion opponents appear to have raised a legitimate question, but the applicable laws are so arcane that it's hard to tell whether they're right.
"This goes into a legal thicket the complexity of which I can't begin to fathom," said Walton Francis, lead author of an annual guide to federal health benefits. "It would take lawyers hours to decipher the interrelationship between these statutes, and they would probably come to different conclusions."
It's even legally murky whether the government can continue to pay its regular share of the premiums for lawmakers and staffers, he added.
Abortion opponents say the longstanding ban on "administrative expenses" related to abortion coverage precludes the personnel office from dealing with health plans that cover abortion.
"To comply with the Smith amendment, they would have to advise members and congressional staff that they can only choose plans that do not cover abortions," said Douglas Johnson, legislative director of the National Right to Life Committee. "And, of course, they would have to enforce it."
Abortion remains a legal medical procedure in most cases, but it's subject to increasing restrictions in many states. So far, 23 states have barred or restricted abortion coverage by plans in the new health insurance markets. But 27 states and Washington, D.C., have not. Under the health care law, every state must have at least one plan that does not cover abortion.
Judy Waxman, a leading attorney for the National Women's Law Center, said the outcry from abortion opponents is overblown.
In the new insurance markets under Obama's law, states decide whether abortion can be offered, she explained. If it's allowed, insurers decide whether they want to offer the coverage. But they have to make sure funds to pay for it are segregated from federal money.
"No federal money will go to abortion," she said.