Language added to the Rhode Island 2016 budget by Representative Raymond Gallison before passage somewhat balanced the last minute addition of extreme anti-abortion language submitted by Governor Gina Raimondo.
The new language added to article 18 reads:
(e) Health plans that offer a plan variation that excludes coverage for abortion services as 31 defined in 45 CFR 156.280(d)(i) for a religious exemption variation in the small group market 32 shall treat such a plan as a separate plan offering with a corresponding rate.
Except for religious Employers (as defined in Section 6033(a)(3)(A)(i) of the Internal Revenue Code), employers selecting a plan under this religious exemption subsection may not designate it as the single plan for employees, but shall offer their employees full-choice of small employer plans on the exchange, using the employer-selected plan as the base plan for coverage. The employer is not responsible for payment that exceeds that designated for the employer-selected plan.
An employer who elects a religious exemption variation shall provide written notice to prospective enrollees prior to enrollment that the plan excludes coverage for abortion services as defined in 45 CFR 156.280(d)(1). The carrier must include notice that the plan excludes coverage for abortion services as part of the Summary of benefits and Coverage required by 42 U.S.C. 300g-15.
Signs of a behind the scenes compromise were apparent based on the odd assortment of representatives who rose to second the amendment, including Rep Edie Ajello, well known for her advocacy of reproductive rights, and Rep Arthur Corvese, well known for publicly and repeatedly referring to legalized abortion as a “culture of death.”
What does the new language mean? At bottom, any non-religious employer, as defined by the IRS, that elects to not include abortion coverage in their employee health plan, must allow employees to opt out of the company plan, and select any other plan, paying any additional costs out of pocket.
Rhode Island is now the first state to build language into the law that protects those who want a health care plan that provides abortion coverage.
Under Federal law, employees must be notified when their plan covers abortion. It does not require, as Rhode Island will under this new language, that employees be notified when they do not have abortion coverage. The language passed last night mandates that employees be told that the chosen plan does not cover abortion before they enroll, and that the lack of abortion coverage is confirmed after enrollment.
Ultimately, the notification requirement is similar to language concerning religious employers who choose not to cover contraception coverage as part of their health plans otherwise mandated by state or federal law.
There is a problem for employees inherent in this language. If my employer doesn’t want to cover abortion due to religious objections, and I decide to opt out of the plan chosen by my company, my employer will know of my objection, and may act in a discriminatory way against me because of my beliefs. I shouldn’t have to worry about job security or job advancement because of my decisions regarding reproductive health care for my family and me. Medical coverage, including reproductive services, are a private matter. How can that privacy be maintained under this provision?
Before the passage of the budget, Barth Bracy, executive director of RI Right to Life told me that he and Bernard Healey, State House lobbyist for the Roman Catholic Diocese of Providence, were present to track the progress of the anti-abortion language the Governor inserted. Bracy told me that the language was the result of an agreement made in the wake of Doe v. Burwell, in which an anonymous man sued the state because there were no plans on the exchange that did not cover abortion.
ProJo reporter Richard Salit confirmed this when he wrote that “The lawsuit brought against Rhode Island was withdrawn in May when a Christian legal group said it had been assured that Rhode Island would begin offering multiple plans for abortion foes in 2016. According to HealthSource RI, the state Office of the Health Insurance Commissioner has required that in 2016 insurers offer a choice for abortion foes in every “metal” level (bronze, silver, gold and platinum) that they offer traditional health plans.”
This does not answer the question as to why Rhode Island did not simply require the addition of one plan to not cover abortion, as is required by federal law by 2017. It also does not answer why the amendment came from Governor Raimondo’s office, instead of being introduced as a bill that could be debated and publicly commented on. Had this democratic and open process been followed, the end result may have been more satisfying to all parties.
Despite this large concession to abortion foes, they were still unhappy with the newly added language. A source confided to me that Bracy, Healey and Representative John DeSimone were railing against the compromise language during last minute negotiations.
This makes me wonder if the RI Right to Life and the Providence Roman Catholic Diocese will begin looking for a non-religious employer to bring a Hobby Lobby like lawsuit against HealthSource RI under the state level RFRA (Religious Freedom Restoration Act.) There is little difference between Rhode Island’s RFRA and the federal version the Supreme Court based their Hobby Lobby decision on.
As I pointed out before, this new language may allow a thousand Hobby Lobbies to bloom in Rhode Island.