California, New York Attorneys General Lead Lawsuit to Challenge HHS Separate Billing for Abortion

Supermajority Education Fund

February 13, 2020

The state attorneys general of several states, including California and New York, and the District of Columbia filed suit against the U.S. Department of Health and Human Services on Jan. 30 against the rule that requires insurers to bill separately for abortion. The rule was first announced on Dec. 20 and could impact 2 million enrollees in California, New York, Oregon, and Washington — states that require insurance programs to offer abortion coverage — according to an analysis by the Kaiser Family Foundation published in December.

The rule requires insurers — like the state exchanges operated under the Affordable Care Act in California called Covered California — to bill for and collect separate payments of at least $1 for abortion. If a person misses a payment on the separate abortion premium, it’s possible that they could lose their entire health coverage.

The defendants —HHS Secretary Alex Azar, Centers for Medicare and Medicaid Services administrator Seema Verma and the Department of Health and Human Services —say the rule is meant to bring ACA insurers into line with regard to restrictions that outlaw federal funds to pay for abortion services.

In the lawsuit, the plaintiffs say, insurers “have been in compliance with those restrictions by creating segregated accounts” while billing policyholders under one transaction. The suit says the HHS rule violates the ACA, the U.S. Constitution, and the Administrative Procedure Act and calls it “an onerous and unnecessary regulation designed to restrict women’s constitutionally protected reproductive rights.” 

Abortion rights activists agree that the rule is targeting and punishing people who seek abortions. “A group of bold states made clear that they won’t back down in the face of attacks on abortion coverage that make health care unaffordable and unavailable. The true intent of this policy from the Trump administration is clear — to punish women for seeking abortion coverage,” abortion advocacy group All* Above All Director of Federal Strategies Kelsey Ryland said in a statement to Supermajority News. “Today and every day, we will continue to fight back against policies that put abortion care out of reach, particularly for families struggling to get by.”

When the HHS initially announced this rule in December, Azar released a statement saying it aligns with President Donald Trump’s commitment to anti-abortion policies. “Providing these separate bills is an essential step in implementing the Affordable Care Act’s bar on tax credits going toward coverage of abortions for which public funding is prohibited. The separate billing requirement fulfills Congress’ intent and reflects President Trump’s strong commitment to preventing taxpayer funding of abortion coverage,” Azar said in a statement.

Read the filing from the U.S. District Court for the Northern District of California here. Here’s the full rule from the Federal Register at the National Archives.