Can Texas Require Separate Insurance Coverage For Abortion?

The governor of Texas recently signed into law a bill that will require people who want insurance coverage for non-emergency abortions to buy an additional, separate policy from their regular health insurance policy. Critics will surely argue that this law has the prohibited purpose of imposing an undue burden on the exercise of the right to abortion, in violation of Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt. But what do its defenders say? In this column, I will consider a defense of this law and examine how persuasive it is.

What’s Wrong With the Law?

Consider the likely attack on the Texas law. Critics might say that there is no reason for demanding that women who want abortion coverage get two separate insurance policies other than to frustrate attempts to have an abortion. Ordinarily, it would seem prudent, from a financial perspective, for a health insurance company that covers childbirth to also cover abortion within the same policy. This is because taking a pregnancy to term, which requires many months of prenatal care in addition to the costs of labor and delivery or a C-section, is actually much more expensive for the insurance company than a simple termination of the pregnancy. To cover the first and not the second, thereby discouraging the less expensive option, would make no sense for an insurance company that is pursuing its financial best interests rather than obeying the Texas law. And evidencing an awareness of this financial reality, the Texas legislature specifically prohibited insurance providers from extending a discount on their regular policies to people who purchase abortion insurance, even if the latter saves the company money.

The law therefore mandates that insurance companies do something that is against their financial best interests in order for the state to pursue some agenda. And what is that agenda? Hostility to abortion and a desire to make it difficult for women who want to terminate their pregnancies to do so, either because the women have to take more bureaucratic steps to acquire abortion coverage or because women decide to forgo the extra coverage because it is too much of a hassle or too expensive and then later feel pressured to remain pregnant because they lack the insurance for an abortion. In Casey, however, the Supreme Court said that “a state regulation [that] has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” is invalid.

A Defense of the Law

Do defenders of the Texas law simply concede that it reflects their hostility to abortion and their attempts to make it more difficult for women to exercise their rights? In private, they might, but publicly, no. One argument they make in defense of the law goes like this: Some people regard abortion as tantamount to murder. Such individuals do not want their money to go to funding someone else’s abortion. If they are part of an insurance pool in which abortion services are covered, then their money will be funding abortions. The Texas law, recognizing this concern, thus aims to protect pro-life individuals from being forced to be complicit in acts that they consider highly immoral. It is, in this sense, comparable to protecting pharmacists who are morally opposed to the use of the morning-after pill from having to dispense such medication to their customers or protecting nurses who are opposed to abortion from having to participate in that procedure. By requiring that only abortion-specific policies can cover the procedure, the State of Texas is ensuring that no one opposed to abortion has to be an accomplice to the procedure by having their money going to support it. For similar reasons, the federal government does not fund abortions (except in cases of rape, incest, or a threat to the mother’s life) through Title X funding for medical care for the poor, and the Supreme Court has long approved of government refusals to fund the procedure, dating back to 1977, in Maher v. Roe.

Aiming to protect people from having to be accomplices in what they believe is evil is, at least in theory, a worthy objective. It would seem wrong for an employer (a hospital or a doctor’s office) to require a pro-life nurse to perform an abortion in order to keep her job (assuming that she works at a hospital or practice at which her skills are otherwise needed). And it may even seem wrong (though arguably a closer case) to require pharmacists to dispense drugs the use of which they consider immoral. The question here is whether such cases are truly similar to protecting customers who buy insurance from having their money become part of a pool from which abortion services are covered. And if the answer is no, then the next question is whether they are like Title X’s failure to fund most abortions.

Pools of Money

To understand an alternative perspective on the use of people’s money to fund abortion, consider some of the things that our tax dollars go to fund. For people like me who oppose the exploitation and slaughter of animals, the government’s subsidies to people who farm animals (and to people who grow corn and soy specifically to feed those animals) force us to participate in evil at least as much as a Blue Cross-Blue Shield policy that covers abortions does with pro-life customers. Yet we cannot stop paying some portion of our taxes for that reason. There are pacifists who believe that all war is wrong, and while they may be excused from the draft (when there is a draft) so that they do not have to participate directly in war, they still have to pay taxes, a large portion of which are used to fund the military. And now that President Trump is in office, many of the more-than-half of the country that voted against him likely feel that their tax dollars (which pay, among other things, for his security detail and the advisors he keeps on his staff for varying periods of time) are funding evil almost every time the man opens his mouth. Yet we cannot be heard to demand that there be a separate “Trump” fund to which only his supporters—or those who find him tolerable—are expected to contribute taxes.

The reality is that the government, even in normal times, does many things that some portion of the population considers wrong. Yet everyone is required to pay taxes, and there are generally no exemptions for those who take issue with one or more government expenditures. Pro-life customers of an insurance company are no better situated to complain if the insurance they have covers abortion than are vegan taxpayers whose dollars support the animal torture and slaughter industries or pacifists who object to expenditures on the military.

Yet despite the fact that everyone must pay taxes notwithstanding the moral objections of many to at least some of what the government does, the federal government has made a point of relieving all taxpayers of responsibility for funding most abortions that low-income women have (even when their health—but not their continued life—requires it). And as mentioned earlier, the Supreme Court in Maher approved of government refusals to cover abortion. Does this mean that the Texas law is valid, as it seems to track the federal government’s constitutionally valid failure to fund abortion?

It may seem indistinguishable. Let me try here, however, to draw a distinction between a law that declines to cover abortion, on the one hand, and a law that requires insurance companies not to cover abortion in their regular policies, on the other. In the former case, the government is taking a position on abortion and saying that it—the federal government—does not want to be complicit in abortion by paying for it. It may even admit that it is doing so to encourage childbirth over abortion. The Court has said that the right to abortion does not entail a right to government funding for it. In the insurance case, by contrast, the government is prohibiting a private actor from deciding for itself whether it wishes to fund abortion or not. If we assume that many insurers have no qualms about covering abortion and that most of their customers are comfortable buying insurance that covers abortion, the State of Texas, through its law, is interfering with private parties (both the customers and the companies) using their own money to pay for the exercise of a constitutional right. That seems different in kind from the government choosing not to fund abortion.

Consider for a moment an extreme version of the Texas law. Such a version might say that no insurer may pay for an abortion or, even more extreme, it might prohibit anyone from paying money in exchange for an abortion. Texas might argue in defense of this law that some people consider abortion to be murder and that money circulates among all of us and therefore cannot be effectively segregated into the funds that do and that do not go to support abortion. My dollar will eventually be in your pocket. Though such a law would not prohibit abortion outright, it would make it virtually impossible for anyone to get an abortion, because providers generally cannot afford to work for free. A law of this sort would almost certainly be invalidated as having both the purpose and effect of denying access to abortion.

The actual Texas law is not this extreme, but it is further along the continuum toward the extreme than is the failure to provide Title X funding. Regulating how private parties use their money to fund an abortion interferes more directly with the right at stake than a simple failure to fund. This is especially true given that in a wide variety of contexts, the Court considers failures to fund very different from direct interference. Some might say that a failure to fund abortion really should have been considered unconstitutional, given that abortion is a constitutional right. But the Court views abortion as a negative right, and the government therefore need not provide money to make it available to poor people. But at the same time, it may not purposefully interfere with its exercise. Forcing insurers who cover non-abortion care to stop covering abortions as part of their regular policies represents an affirmative interference with the private exercise of the right. It is really the difference between an entity choosing not to cover abortion services and the entity being forced out of covering it by the government.

What the Courts Will Do

It is anyone’s guess whether the state and federal courts will ultimately decide that Texas has violated the right to abortion. Other states have imposed similar restrictions on abortion, either with respect to only the Affordable Care Act exchanges (25, according to the Guttmacher Institute) or with respect to private plans as well (10, according to the Guttmacher Institute). A high court ruling on this case will therefore have an impact that goes beyond Texas residents. I have argued here that courts ought to decide the question presented in the affirmative, holding that Texas has violated the right to abortion because the government should not be able to compel private actors who would not otherwise do so to deny women access to coverage for the procedure in their regular policies.

But a court might say the case is more like denial of Title X funding and that the goal is to protect abortion dissenters from having to fund the procedure against their will. It is also the case that the right to abortion is extremely fragile at the moment, given President Trump’s choice of an extremely conservative justice to take the seat that by all rights should have gone to Merrick Garland and the likelihood that the president will be in a position to fill several more vacancies. So long as there is a right to abortion, however, no state should be able to forcibly ghettoize health insurance that covers its exercise. Insurance is how people fortunate enough to have it pay their bills. And if they choose to pay for a constitutionally protected procedure like abortion, the government should not be allowed to erect barriers to that choice.