Wednesday, August 30, 2017

Why Abortion-Only Insurance Will Turn Off People Who Need It

by Sherry F. Colb

In my column for this week, I discuss the recently passed Texas law prohibiting health insurance companies from offering general policies that also cover abortion. If they wish to cover abortion, they must have a separate policy with separate premiums and requiring a separate signature by the insured. In the column, I consider a potential argument in favor of such a law: perhaps Texas wishes to make it possible for people who disapprove of abortion to avoid feeling complicit in the abortions that their insurance premiums subsidize. The column analyzes the strength of that argument through analogies to different types of complicity-avoiding claims.

In this post, I want to focus on the decision that a woman purchasing health insurance must make about whether to buy the supplemental abortion insurance plan on top of her regular plan. When purchasing ordinary insurance, one need not think about all of the unfortunate health events that might befall a person. One simply signs up for health insurance and knows that he or she is covered in the event of whatever health problems that he or she might prefer not to think about. But a single-event health insurance plan is quite different from that.
A single-event plan requires a person to think about a particular adverse health situation in which she might find herself, really think about it and imagine herself in the situation so that she can compare the cost of insuring herself against its happening, on the one hand, and risking its taking place, on the other. For example, imagine that a potential enrollee has to consider whether to purchase pancreatic cancer insurance. Buying it means that he is thinking he is likely enough to get this very aggressive and deadly cancer that it is not a waste of money to insure for it. Not buying it, by contrast, may represent a form of denial for the potential enrollee--I'm not buying this insurance because I'm not going to get this illness. The strong temptation will be to forgo the pancreatic cancer insurance, particularly if one is generally healthy and no one has said "Be on the lookout for pancreatic cancer."

The tragedy underway in Houston and nearby areas provides a useful comparison. Even though the federal government subsidizes flood insurance--making it a "good deal" as an actuarial matter--because it is sold as a separate policy beyond the ordinary homeowner's policy that mortgage lenders typically require, a great many homeowners do not purchase flood insurance. Apparently, only about 15% of homes in Harris County (which includes Houston) have flood insurance.

Now turn to the abortion context. Despite propaganda suggesting that women use abortion as "a form of birth control," women generally take abortion seriously and, due to the stigma attached to abortion by the pro-life movement, are much more likely to imagine that they would not have an abortion than that they would. If we approached an average woman, then, and asked her "Do you expect to have an abortion this year," she would likely say no. She might in fact be more insistent on the "no" than would be justified by the true likelihood that she would in fact terminate a pregnancy. This is not only because abortion is stigmatized (and is thought to have moral implications by even many pro-choice people). It is also because, like with pancreatic cancer or a home-destroying flood, most women probably do not want to imagine themselves experiencing an unwanted pregnancy.

An unwanted pregnancy includes a pregnancy in a person who simply does not want to become pregnant at all. But it may also include a pregnancy that results from rape (which is not within the "medical emergency" exception to the Texas law). And it may include a pregnancy with a fetus who will be severely disabled in a way that will cause him or her tremendous suffering and end in an early death during infancy. Women thinking about whether they are likely to have an abortion in the coming year are probably thinking about a simple, healthy, but unwanted pregnancy rather than about rape and severe disability. As most people prefer not to think about such things, it may again be quite tempting, as in the case of pancreatic cancer or flood insurance, to forgo coverage.

If Texas were truly interested in sparing pro-life Texans the dilemma of whether to purchase health insurance that funds a procedure they consider evil, there is another way the law could have been written. It could have had a voluntary opt-out for those who do not want to either have or pay for abortion coverage. Such people would pay only a premium that takes into account the cost of covering everything-but-abortion and would be able to feel free of the guilt that they would otherwise experience for funding abortion. Meanwhile, because people tend to stick with the "default" option, women who might otherwise feel the need to avoid thinking about being raped or having a child with a severe disability can just buy the comprehensive policy without being forced to ruminate. This would put the onus on people who specifically oppose the policy to opt out, and presumably, pro-life individuals feel strongly enough about the issue that they would opt out, notwithstanding the ordinary tendency to stay with the default.

Part of why Texas may not have passed a law like the hypothetical one I just described is that a policy covering both childbirth and abortion would likely cost less than a policy covering only childbirth, so there would be no premium reduction for those opting out of the comprehensive policy. There might, if the financial realities were taken into account, be a premium hike for those opting out. But of course, this suggests that not only are pro-life people not funding abortion when they buy insurance that includes coverage for abortion; it is the pro-choice people who are funding the (presumably) extra births that the pro-life crowd are having. This suggests that the supposed rationale for the Texas law--to prevent complicity in abortion by those opposed to the procedure--is false. The real rationale, it seems, is to make it more difficult for women to have and to pay for abortions. Because such a direct hostility to abortion exposes a purpose of impeding access, it ought to fail constitutional scrutiny for that reason, even if complicity-avoidance statutes might ordinarily be valid.