State and federal efforts to address insurance and Medicaid coverage of abortion services began shortly after the Roe v. wade of the 1973 supreme court that legalized abortion and have continued to this day. Beginning in 1977, the Hyde Amendment prohibited the use of federal funds for abortion, allowing exceptions only for pregnancies that endangered the woman’s life or resulted from rape or incest. The issue of abortion coverage was at the center of much debate in the run-up to the passage of the ACA, and subsequently led to renewed legislative efforts at the state level to limit abortion coverage, this time in insurance plans. private. With insurance and Medicaid coverage for abortion increasingly limited by state and federal regulations, as well as insurance coverage policies, in many states, hundreds of thousands of women seeking abortion services annually are left without coverage options, even if they are victims of rape or incest or if the pregnancy is determined to be a threat to their health. This report reviews current federal and state policies on Medicaid and insurance coverage of abortion services, and presents national and state estimates of the availability of abortion coverage for women enrolled in private plans, marketplace plans, and Medicaid.
federal and state laws regarding abortion coverage or payment
nearly a million women in the us. uu. have an abortion every year.1 Federal and state laws, as well as insurance coverage policies, shape the extent to which women can be covered for abortion services in both publicly funded and non-public programs. private plans. women who seek an abortion but do not have coverage for the service bear the out-of-pocket costs of the services. The cost of an abortion varies depending on factors such as location, facility, timing, and type of procedure. the average cost of an abortion at 10 weeks’ gestation is $500, while the average cost of an abortion at 20 weeks’ gestation is $1,195.2 even though the vast majority (~90%) of abortions are performed in the first trimester of pregnancy, costs are challenging for many low-income women.3,4 approximately 5% of abortions are performed at 16 weeks or later in pregnancy.5 for women with medically complicated health conditions or who need a second-trimester abortion, the costs could be prohibitive. in some cases, women find they have to delay their abortion while they take the time to fundraise,6 or women may first learn of a fetal anomaly in the second trimester when costs are considerably higher.7 according to the board of the federal reserve, forty percent of us adults don’t have enough savings to pay for a $400 emergency expense.
Since 1977, federal law has prohibited the use of federal funds for abortion unless the pregnancy is the result of rape, incest, or is determined to endanger the woman’s life. This rule, also known as the Hyde Amendment, is not a permanent law; rather, it has been attached annually to congressional appropriations bills and passed each year by Congress.
the hyde amendment initially affected only the funding of abortions under medicaid, but over the years, its scope was expanded to limit federal funding for abortions for federal employees and women in the Indian health service. from 1981 to 2013, the military health insurance program limited abortion coverage to circumstances in which the woman’s life was in danger. in early 2013, an amendment to the national defense authorization act expanded insurance coverage for servicewomen and military dependents to include abortions of pregnancies resulting from rape or incest, as allowed under other federal programs.8 federal funds they cannot be used to pay for abortions in other circumstances, and abortions can only be performed at military medical facilities in cases of life-threatening, rape, or incest. State-level policies also have a large impact on how insurance and Medicaid cover abortions, particularly since states are responsible for the operation of Medicaid programs and insurance regulation.
the medicaid program serves millions of low-income women and is one of the largest payers of reproductive health services nationwide. approximately two-thirds of adult women enrolled in medicaid are of reproductive age.9 as discussed earlier, the federal hyde amendment restricts state medicaid programs from using federal funds to cover abortions beyond life-threatening, rape, or incest. however, if a state chooses to do so, it may use its own funds to cover abortions in other circumstances. currently, 16 states use state funds only to pay for abortions for medicaid women in circumstances other than the federal limitations set forth in the hyde.10 amendment in 35 states and the district of columbia, medicaid programs do not pay for any more abortions beyond the hyde exceptions (appendix table 1) 1112 currently, half of the women with medicaid coverage live in states that use their own funds to pay for abortion services, beyond federal hyde limitations (figure 1 and annex table 2).
a 2019 gao study of state policies regarding medicaid abortion coverage found that south dakota’s medicaid program only covers life-threatening abortions and not rape or incest, in violation of federal law. the same study also found that 14 state medicaid programs do not cover mifeprex, the prescription drug most commonly used for medical abortions.13 these 14 states only pay for abortions under the circumstances allowed by the hyde amendment. therefore, the only option for women enrolled in medicaid in these states would be to obtain a surgical abortion in cases of rape, incest, and life-threatening, and neither they nor their doctors would be able to opt for a medical abortion. CMS has not taken any action against these 14 states for failing to meet outpatient drug requirements, or South Dakota for failing to cover abortion in all circumstances required by Hyde. Furthermore, while 37 states reported that their Medicaid programs cover mifeprex, only 13 of these states have requested reimbursement from Medicaid for this medication. in the other states, the program had not paid for this medication for a patient in the last three years, indicating that medication abortions may be very limited in these states.
the aca includes a provision that applies hyde restrictions to marketplace plans, ensuring that federal funds are only used to subsidize coverage for terminations of pregnancy that endanger a woman’s life or are the result of rape or incest. state Medicaid expansion programs can only fund abortions in other circumstances using only state funds and not federal funds. President Obama issued an executive order as part of health reform that reaffirmed federal limits specifically for Medicaid abortion coverage.14 The law also does not explicitly preempt other current state policies regarding abortion, such as consent or notification. of parents, waiting period laws, or any other policies. abortion limits or coverage requirements that states have enacted.
States are responsible for regulating fully insured large and small group and individual plans issued in their state, while the federal government regulates self-insured plans under the Employee Retirement Income Security Act (laughs). states can choose to regulate whether abortion coverage is included or excluded in private plans that are not self-insured. In the private insurance sector, 11 states impose restrictions on the circumstances under which insurance will cover abortions (Annex Table 1). Some states follow the same restrictions as the federal hyde amendment for their private plans, while others are more restrictive. idaho has rape, incest, or life-saving exceptions for plans sold in the marketplace, but limits life-threatening abortion coverage for all other state-issued private plans. Utah has exceptions to save the life of the mother or avoid serious risk of loss of major bodily function, if the fetus has a medically documented defect that is uniformly diagnosable and lethal, and in cases of rape or incest. however, six states (kansas, kentucky, missouri, nebraska, north dakota, and oklahoma) have a female-only exception for all state-regulated fully insured private plans. michigan allows coverage of abortion in life-threatening cases, in cases involving a reduction of pregnancy for a multifetal pregnancy when the abortion increases the probability of a live birth, or preserves the life or health of the child after the live birth. 15 texas allows abortion coverage only in cases of serious danger to health or danger to life. Five states had these laws on the books before the ACA, and a further six states have passed new laws restricting private plan coverage after the ACA. While ten of these states allow insurers to sell abortion coverage riders in the private market, a study by the Kaiser Family Foundation found that in 2018, no insurers offered abortion riders to women insured through plans purchased individually, and only one insurance company in one state offered an abortion rider in the group market. the lack of abortion provisions leaves women insured by private plans in these states with no option to secure coverage for abortion services. Utah does not allow riders to be sold for abortion coverage.
There is no recent data on the number of private plans that include abortion coverage. only four states (california, new york, oregon, and washington) require that all state-regulated private health plans, including marketplace plans, include abortion coverage.16 maine enacted a law requiring all state-regulated health plans private health insurance are renewed on or after January 1, 2020 that cover maternity care to cover abortion services.17 california and washington require that all plans, including individual and employer plans, address abortion coverage and maternity coverage neutrally. Just as all plans must include maternity coverage, all plans must also include abortion coverage.18,19
market plans here
all plans offered in aca marketplaces must provide coverage for 10 essential health benefits (ehb), including maternity care and prescription drugs. however, abortion services are explicitly excluded from the list of ehb that all plans must offer. under federal law, no plan is required to cover abortion. states can enact laws that prohibit all plans that participate in the state marketplace from covering abortions, which 26 states have done since the law was enacted here in 2010 (figure 2). most of them state laws include limited exceptions for women whose pregnancies are life-threatening or the result of rape or incest, but two states (louisiana and tennessee) do not provide any exceptions.20 the aCA prohibits plans in state marketplaces from discriminating to any provider due to “unwillingness” to provide abortions.
in a 2019 review of marketplace plans, eight states that do not have laws restricting abortion coverage (delaware, iowa, illinois, minnesota, new mexico, nevada, west virginia, and wyoming) had no marketplace plans that offered abortion coverage (figure 2). In the five states (connecticut, hawaii, maryland, new hampshire, and vermont) and the district of columbia that do not have laws that prohibit requiring abortion coverage, all 2019 Marketplace plans include abortion coverage. four states (california, new york, oregon and washington) require abortion coverage from plans in the marketplace. Beginning January 1, 2020, abortion coverage will be required in the Maine marketplace. there are seven states (alaska, colorado, maine,21 massachusetts, montana, new jersey, and rhode island) that do not require abortion coverage and offer at least one plan on the market that includes abortion coverage. For women in these seven states, the actual availability of coverage depends on whether a plan is offered in your area that includes abortion services. as a combined result of state laws and insurance company choices, women in 34 states currently do not have access to abortion insurance coverage through a marketplace plan, the only place consumers can qualify for tax subsidies to help pay the cost of healthcare. insurance premiums if they are income eligible.
Special rules for billing and payment of Marketplace plans that include abortion coverage
In states that do not restrict abortion coverage in plans available through the marketplace, insurers may offer a plan that covers abortions beyond federal limitations, but this coverage must be paid for with private, not federal, dollars. plans must notify consumers of abortion coverage as part of the benefit summary and explanation of coverage at the time of enrollment. The ACA outlines a methodology that states must follow to ensure that federal funds are not used for abortion coverage beyond the Hyde limitations. any plan that covers abortions beyond hyde’s limitations must estimate the actuarial value of such coverage taking into account the cost of the abortion benefit (valued at least $1 per member per month). this estimate cannot take into account any savings that may be achieved as a result of abortions (such as prenatal care or delivery).22
In addition, federal rules state that plans that offer abortion coverage and receive federal subsidies (all plans in the state marketplace are believed to receive at least some federal subsidies) must collect two premium payments for the funds to be used. allocate separately. accounts one payment is for the value of the abortion benefit and the other payment is for the value of all other services covered by the plan. the plan issuer must deposit the funds in separate allocation accounts overseen by state health insurance commissioners for compliance.23
Both sides of the abortion debate are not satisfied with these rules. While it is clear that there is no abortion coverage available to women eligible for subsidies in states that have banned it from the market, there has been much attention on how difficult it is for consumers in the remaining states to determine whether plans include abortion coverage. abortion and any limitations imposed on coverage. Although Marketplace plans must include whether abortion is covered in their Summary of Benefits and Coverage (SBC), limitations on abortion coverage may not be specified in the SBC or in individual policies. Members may need to call their insurance claims department to determine under what conditions abortion is covered. the phrase “limitations may apply” can mean a variety of things. Some plans include a variety of limitations, including time limits (only cover abortion up to 18 weeks of pregnancy), lifetime limits (only two covered abortions per lifetime), or limitations on what type of abortion is covered (medication vs. surgical). Several plans that list abortion as covered with limitations describe in their individual plan documents that abortion is only covered under hidden conditions: rape, incest, or endangerment of life.
While the reasons why issuers in states that allow abortion coverage have chosen to exclude abortion coverage are not known, the complexity of specific requirements for abortion coverage alone may be an impediment for plans. This was raised as a possible outcome during the debate over pre-ACA abortion coverage. the nelson amendment included in the final law requires plans to segregate funds used for abortion coverage, effectively collecting an additional fee for this coverage and adding a layer of administrative complexity.24 plans that choose to include abortion coverage are also subject to additional reporting standards and audit requirements. For example, this could be the case in West Virginia, where the same insurance company that does not offer abortion coverage for individual policies, nevertheless includes abortion coverage in group policies sold to small businesses through Marketplace plans. of small groups, where abortion-related accounting rules and reporting requirements do not apply.
The trump administration recently proposed two rules that would further complicate the requirements for both consumers and issuers offering marketplace plans that include abortion coverage. hhs takes the position that the current abortion coverage regulations finalized by the obama administration “do not adequately reflect…congressional intent that the issuer of qhp bill separately for two distinct (i.e., “separate”) payments as required by hhs. requires section 1303 of the ppaca.” To address this, on November 7, 2018, the Trump administration issued a proposed regulation, which would require significant changes to the way issuers must bill and consumers must pay for uncovered abortion coverage in Trump plans. market that include abortion coverage. under this proposed rule:
- Issuers will be required to send two separate monthly bills, either by mail or electronically, to each policyholder: one bill would be for abortion coverage without medical coverage (at least $1 per member per month) and one bill would be for the premium for everything else except abortion coverage without medical coverage.
- The issuer will instruct consumers to pay in two separate transactions. if the consumer is paying by mail, the consumer should be instructed to send two checks in separate envelopes or make two electronic payments in cases where the policyholder pays by electronic funds transfer.
cms received over 70,000 comments on this provision and has not finalized this rule.
on january 24, 2019, the trump administration issued the proposed notification of regulation of payment and benefits parameters (nbpp), mainly aimed at technical changes in the aca markets. however, this proposed rule also included a provision that required marketplace plans that offered abortion coverage beyond the hyde circumstances to offer “mirror plans” that would only provide abortion coverage in the circumstances allowed by the hyde amendment (rape, incest or life threatening). the proposal would effectively require a marketplace issuer that provides abortion coverage to offer two plans, one with abortion coverage and a second “mirror plan” with very limited or no abortion coverage.
cms continues to review the more than 25,000 comments on this provision and did not finalize this proposed requirement when it issued the 2020 Benefit Notification and Payment Parameters Final Rule. if cms finalizes this provision or the special billing and payment regulations , the availability of abortion coverage is likely to be further affected.
A combination of longstanding federal and state policies along with the new wave of state laws restricting abortion coverage has limited coverage options in many states. In 11 states, women enrolled in Medicaid plans, private and marketplace, have essentially no abortion coverage options. (figure 3). In an additional 15 states, women who qualify for Medicaid or seek coverage through their state marketplace also lack abortion coverage; in 9 other states and dc, women enrolled in medicaid have abortion coverage limited to the circumstances allowed under the hyde amendment. In addition, while there are 24 states and DC that do not have policies limiting abortion coverage in the CA Marketplace, 8 of these states do not offer any 2019 Marketplace plans that include abortion coverage.
The impact of restrictions on abortion coverage disproportionately affects poor and low-income women, who have limited ability to pay for abortion services out of pocket. today, half of the women receiving medicaid have abortion coverage that is limited to pregnancies resulting from rape, incest, or life-threatening pregnancies. While millions of women have gained health insurance coverage as a result of the ACA’s insurance expansions, many are enrolled in plans that restrict the circumstances in which abortion services will be covered. in the coming years, laws enacted at the federal and state levels, as well as decisions made by insurers, employers and policyholders, will ultimately determine the extent of abortion coverage available to women throughout the country.