THE EMPLOYEE COVERAGE PROHIBITION ACT



Employee Coverage Prohibition Act

Model Legislation & Policy Guide

For the 2018 Legislative Year

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Accumulating Victories, Building Momentum,

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Introduction

During the 2009-2010 health care reform debate, many Americans began inquiring whether their own state governments use state taxpayer funds to pay for abortions, including whether health insurance coverage for abortions is provided for state employees.

The federal government prohibits the use of federal funds for abortion coverage for federal employees through the Federal Employee Health Benefits Program (FEHBP) – in fact, insurance plans that cover most abortions may not participate in the FEHBP. In contrast, only 21 states currently prohibit the use of state funds for abortion coverage for state employees (with no or limited exceptions).

To assist state legislators in prohibiting the use of state taxpayer funds to pay for health insurance coverage of abortions for state employees, AUL has developed The Employee Coverage Prohibition Act, which is modeled after existing state laws prohibiting or limiting such coverage. For more information and drafting assistance, please contact please contact AUL at (202) 741-4907 or Legislation@.

Steven H. Aden, Esq.

Chief Legal Officer & General Counsel

Americans United for Life

The Employee Coverage Prohibition Act

HOUSE/SENATE BILL No. _______________

By Representatives/Senators _______________

Section 1. Title.

This Act may be known and cited as the “Employee Coverage Prohibition Act.”

Section 2. Legislative Findings and Purposes.

(a) The Legislature of the State of [Insert name of State] finds that:

1) The Hyde Amendment, as passed each year in the Labor Health and Human Services Appropriations bill, and the Federal Employee Health Benefits Program (FEHBP) prohibit federal funds from subsidizing health insurance plans that provide abortion coverage. In other words, federal employees cannot enroll in insurance plans that cover abortions (with limited exceptions).

2) It is the long-standing policy of the State of [Insert name of State] that [Insert statement(s) about state policies on funding for abortion, use of state resources to promote or perform abortions, and/or insurance plans that cover abortions].

3) Nonetheless, the State of [Insert name of State] currently does not explicitly prohibit state employees from receiving subsidized abortion coverage and does not explicitly prohibit the use of state taxpayer funds for abortions for state employees or their dependents.

4) The provision of state government funding for health insurance plans that provide abortion coverage is nothing short of taxpayer-funded and government-endorsed abortion.

5) The decision not to fund abortion places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy. Rust v. Sullivan, 500 U.S. 173, 201 (1991).

6) Moreover, it is permissible for a State to engage in unequal subsidization of abortion and other medical services to encourage alternative activity deemed in the public interest. Rust v. Sullivan, 500 U.S. 173, 198 (1991).

7) Citizens of the State of [Insert name of State], like other Americans, oppose the use of public funds – both federal and state – to pay for abortions. For example, a January 2010 Quinnipiac poll showed that 7 in 10 Americans opposed provisions in federal health care reform that use federal funds to pay for abortions and abortion coverage.

8) The Guttmacher Institute, which advocates for unfettered and taxpayer-funded access to abortion, confirms that more women have abortions when they are covered by public programs.[1]

9) It is an accepted principle of economics and public policy, that when you subsidize or pay for a service or product, you increase demand for that service or product.  Moreover, it is reasonable to conclude that this principle applies to the delivery of medical care in general and to the provision of abortion in particular.

10) Given that more women have abortions when they are covered by public programs and that public or private insurance coverage of a procedure generally leads to increased usage of that procedure, the State of [Insert name of State] concludes that the incidence of abortion may be higher when insurance coverage of abortion is subsidized for public employees.

(b) Based on the findings in subsection 2(a), it is the purpose of this Act to prohibit any insurance contract, plan, or policy provided or offered to employees of the State of [Insert name of State] [and/or a specific county, city, or town] and their dependents from providing coverage for obtaining or performing an abortion and to prohibit the use of state funds [and/or the funds of any specific county, city, or town] for the purpose of obtaining or performing an abortion on behalf of employees of the State of [Insert name of State] [and/or a specific county, city, or town] and their dependents.

Section 3. Definitions.

As used in this Act:

(a) “Abortion” means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child. Such use, prescription, or means is not an abortion if done with the intent to:

(1) Save the life or preserve the health of the unborn child;

(2) Remove a dead unborn child caused by spontaneous abortion; or

(3) Remove an ectopic pregnancy.

(b) “Employee” means:

(1) Any person in the service of the State[, county, city, or town] or of any branch of the State[, county, city, or town] government, of any executive department of the State[, county, city, or town], or of any agency, board, institution, or commission of the State[, county, city, or town] under any contract for hire, express or implied, oral or written, where the State[, county, city, or town] has the power or right to control and direct the employee in the material details of how the work is to be performed;

(2) State[, county, city, or town] elected officials; or

(3) Appointed members of governing bodies of the State[, county, city, or town].

Section 4. Prohibition.

(a) Notwithstanding any other provision of law to the contrary, the State of [Insert name of State] [or any county, city, or town within the State of [Insert name of State]] shall not include in any insurance contract, plan, or policy covering employees and their dependents any provision which shall provide coverage for obtaining or performing an abortion nor shall any State[, county, city, or town] funds be used for the purpose of obtaining or performing an abortion on behalf of the State[, county, city, or town] employees or their dependents.

(b) This Section shall be applicable to all contracts, plans, or policies of[2]:

(1) All health insurers subject to [Insert appropriate state[, county, city, or town] code section(s) or other regulatory provision(s)];

(2) All nonprofit hospital and medical, surgical, dental, and health service corporations subject to [Insert appropriate state[, county, city, or town] code section(s) or other regulatory provision(s)];

(3) All group and blanket health insurers subject to [Insert appropriate state[, county, city, or town] code section(s) or other regulatory provision(s)];

(4) All health maintenance organizations subject to [Insert appropriate state[, county, city, or town] code section(s) or other regulatory provision(s)]; and

(5) Any provision of medical, hospital, surgical, and funeral benefits and of coverage against accidental death or injury, when such benefits or coverage are incidental to or part of other insurance described in [Insert appropriate state[, county, city, or town] code section(s) or other regulatory provision(s)].

(c) This limitation shall not apply to an abortion performed when the life of the mother is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

Section 5. Construction.

(a) Nothing in this Act shall be construed as creating or recognizing a right to abortion.

(b) It is not the intention of this Act to make lawful an abortion that is currently unlawful.

Section 6. Right of Intervention.

The [Legislature], by joint resolution, may appoint one or more of its members, who sponsored or cosponsored this Act in his or her official capacity, to intervene as a matter of right in any case in which the constitutionality of this Act or any portion thereof is challenged.

Section 7. Severability.

Any provision of this Act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable herefrom and shall not affect the remainder hereof or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances.

Section 8. Effective Date.

This Act takes effect on [Insert date].

AUL’s annual publication Defending Life is available online at .

For further information regarding this or other AUL policy guides, please contact:

Americans United for Life

2101 Wilson Boulevard, Suite 525

Arlington, Virginia 22201

202.289.1478 | Fax 202.289.1473 | Legislation@



©2017 Americans United for Life

This policy guide may be copied and distributed freely as long as the content remains unchanged and Americans United for Life is referenced as the creator and owner of this content.

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[1] See Heather D. Boonstra, The Heart of the Matter: Public Funding of Abortion for Poor Women in the United States, Guttmacher Policy Review, Winter 2007, Vol. 10, No. 1, available at (last visited July 23, 2015).

[2] This list should be tailored according to state law.

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