PolitiFact Is Wrong About Nita Lowey

It is time to fact check the fact checkers. PolitiFact incorrectly labeled Rep. Nita Lowey statement on the Stupak Amendment as “false.”
Lowey said the amendment "puts new restrictions on women's access to abortion coverage in the private health insurance market even when they would pay premiums with their own money." We believe that Lowey's formulation is, at best, misleading. The people who would truly pay all of the premium with their own money -- and who would not use federal subsidies at all -- are not barred in any way from obtaining abortion coverage, even if they obtain their insurance from the federally administered health exchange. [...]

There's plenty of room for debate about how the Stupak-Pitts amendment will eventually shape the availability of abortion coverage. But Lowey is wrong on two points. First, she suggests the amendment applies to everyone in the private insurance market when it just applies to those in the health care exchange. Second, her statement that the restrictions would affect women "even when they would pay premiums with their own money" is incorrect. In fact, women on the exchange who pay the premiums with their own money will be able to get abortion coverage. So we find her statement False.

First, let's set aside that the Stupak amendment does not affect just the exchange and people who get subsidies. It prevents any plan that gets any money from the bill from covering abortion:
No funds authorized or appropriated by this Act (or an amendment made by this Act) may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act of rape or incest.

Depending on legal interpretation, employer-provided plans that take advantage of the new small business tax credit, the wellness program grant, or early retiree reinsurance program would need to stop covering abortion. This could affect tens of millions of Americans' insurance, but let's leave that for now.

The Stupak amendment could completely stop plans on the exchange from covering abortion for three possible reasons, all of which would easily hold up in a court of law. The amendment reads:
Option to Offer Separate Supplemental Coverage or Plan- Notwithstanding section 303(b), nothing in this section shall restrict any nonfederal QHBP offering entity from offering separate supplemental coverage for abortions for which funding is prohibited under this section, or a plan that includes such abortions, so long as--

(1)premiums for such separate supplemental coverage or plan are paid for entirely with funds not authorized or appropriated by this Act;

(2)administrative costs and all services offered through such supplemental coverage or plan are paid for using only premiums collected for such coverage or plan; and

(3)any nonfederal QHBP offering entity that offers an Exchange-participating health benefits plan that includes coverage for abortions for which funding is prohibited under this section also offers an Exchange-participating health benefits plan that is identical in every respect except that it does not cover abortions for which funding is prohibited under this section.

The problem is that section 212 on “guaranteed issue” requires any insurance plan sold on the exchange to accept anyone. Given that over half the people on the exchange would have tax credits, if a plan had 50,000 customers, the odds are greater than 1 in a trillion that someone with tax credits would sign up for the plan. The Stupak amendment did not amend the rule on guaranteed issue.

Assuming the plans that offered abortion coverage were allowed to discriminate against low and middle income Americans, there is then the issue of the risk adjustment mechanism. All plans on the exchange must take part in the risk adjustment mechanism. It is a government program that collects money from all the plans and redistributes it among the plans on the exchange based on how healthy their customers are--the CBO has declared this on all budgeted federal funds from “this act.” So, plans that cover abortion on the exchange could only pay money to, but not accept payments from, the risk adjuster, and that would quickly push them out of business.

Finally, there is a problem with part (2) which says “administrative costs and all services offered through such supplemental coverage or plan are paid for using only premiums collected for such coverage.” It is impossible to offer a plan “identical in every respect except” without sharing some administrative functions and provider rate negotiating workload. No two plans that are not allowed to use any shared administrative services can get identical provider networks at identical prices.

The Stupak amendment does not literally say that plans on the exchange can't include abortion coverage, it just makes it completely impossible that a plan could for several reasons. To pretend that a reading of the Stupak amendment could not easily be used to stop the sale of plans covering abortion on the exchange is absurd. That is like claiming a law making it illegal to sell tubes capable of having a bullet pass through at high speeds would not be a ban on firearms. Nita Lowey is correct that this amendment could easily put new restrictions on a woman's ability to buy an insurance plan that does include abortion coverage from a private insurance company, even with her own money.

I tried contacting PolitiFact to ask them to revise their story by noting that it is very possible the Stupak Amendment could be legally used to stop the sale of plans covering abortion as part of an insurance package on the exchange. They refused. They did acknowledge that the legal interruption I laid out may in fact happen, but stuck to their “false” verdict because they believe this possiblity “seems remote.” Thinking a possibility is remote is radically different from declaring it false. PolitiFact claims to be a “fact checker,” not a “in my opinion it seems like an unlikely outcome" checker.

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