The Nevada LIFE Blog

Obama Administration Violating Smith Amendment’s Abortion Prohibitions.

Allowing Congressional Staff To Purchase Abortion Covering Insurance With Federal Funds.

The Obama administration is breaking the law through a rule it has adopted to allow Congressional members and certain Congressional staff to purchase insurance coverage with federal funds that would provide abortion in violation of the Smith amendment. 

Obama Administration Violating Smith Amendment’s Abortion Prohibitions.

We condemn the Obama Administration’s attempt to violate federal law by adopting a rule allowing Members of Congress and certain congressional staff to purchase abortion covering insurance plans on health care exchanges with federal funds in clear violation of the Smith Amendment. 

The Smith amendment is a limitation amendment on the Office of Personnel Management (OPM) that explicitly prohibits the  Office of Personnel Management (OPM) from expending any funds for “administrative expenses in connection with any health plan… which provides any benefits or coverage of abortions...” [except] where the life of the mother would be endangered if the fetus were carried to term, or the pregnancy is the result of an act of rape or incest.”

With members of Congress and certain staff being required to choose an insurance plan on a health care exchange, OPM is erroneously asserting that the Smith Amendment prohibits OPM from using appropriated funds to “administer” Exchange plans by administering “the terms of the health benefits plans offered on an Exchange.”  Under this interpretation, since OPM does not administer such terms, the rule will allow Members of Congress and certain congressional staff to choose health plans on exchanges that cover abortion in instances other than rape or incest. 

But, this deceptive assertion ignores the plain wording of the Smith Amendment which explicitly prohibits the use of any appropriated federal funds “to pay for . . . the administrative expenses in connection with any health plan . . . which provides any benefits or coverage for abortions.” (emphasis added). It is undeniable that OPM will incur “administrative expenses in connection with” the purchase of Exchange health plans that cover abortion.

A letter from 86 members of Congress to the OPM makes this clear:

“The amendment is specifically drafted to refer to the “administrative expenses in connection with” any health plan that includes benefits or coverage for abortion, so that OPM administrative activities for Federal employees cannot include any activity related to a plan that includes elective abortion. Examples of OPM administrative expenses include collecting employer contributions from the various Federal agencies, collecting individual premium contributions from Federal employees, and making premium payments to insurance companies on behalf of Federal employees. As a result of the Smith amendment, none of the plans offered to Federal employees include abortion, except in cases of rape, incest or to save the life of the mother.”

Under the proposed rule, OPM will carry out new administrative duties on behalf of
Congressional employees under the authority of its mandate to provide Federal employee health benefits. These duties will include collecting and disbursing premiums for plans sold in the various exchanges (or marketplaces) established by the Affordable Care Act (ACA). The ACA explicitly allows exchange health insurance plans to include elective abortion in the package of benefits sold on the exchanges. [1]

Therefore, if a Congressional employee selects one of the plans that includes elective abortion, OPM will collect the employer and employee premium contributions and in turn disburse them to the abortion-covering plan. Such a scenario would result in administrative expenses being used in connection with a health plan that provides benefits or coverage for abortion—a clear violation of the Smith amendment. Moreover, a violation of a limitation amendment, such as the Smith Amendment, may constitute a violation of the Anti-Deficiency Act.

The OPM proposal clearly violates the Smith Act and would allow the government to purchase abortion-covering plans for Members of Congress and their staffs, which is something that no other federal employee is allowed to do.  

The Smith Amendment has been law for all but 2 years (1993-1995) in the last 30 years.  Americans, including many who consider themselves pro-choice on abortion, oppose federal funding of abortion.  The Constitution does not grant the President the authority to retroactively rewrite the laws.  OPM must change this rule or those involve must face penalties for violation of the Anti-Deficiency Act.