New nationwide restrictions on abortion coverage would fundamentally rewrite Affordable Care Act requirements that have been in place for more than a decade and would be inconsistent with President Trump’s promise to leave the issue of abortion access to the states.
Editor’s Note
This article is the latest in the Health Affairs Forefront featured topic, “Health Policy at a Crossroads,” produced with the support of the Commonwealth Fund and the Robert Wood Johnson Foundation. Articles in this topic offer timely analyses of regulatory, legislative, and judicial developments in health policy under the Trump-Vance Administration and the 119th Congress. Health Affairs Forefront alone reviews all submissions then selects, edits, and publishes them only if they meet Forefront’s editorial standards.
With Congress back from recess, there is renewed attention on looming premium hikes for about 22 million people with marketplace coverage. For the past four years, enhanced premium tax credits have significantly reduced consumer premiums and out-of-pocket costs, contributing to record-high marketplace enrollment of 24 million people for 2025. But these enhanced premium tax credits are set to expire at the end of 2025. If Congress fails to extend these tax credits, 22 million marketplace enrollees will face “huge premium shock” and more than four million more people will be uninsured as many drop marketplace coverage that they can no longer afford.
As Congress considers extending the enhanced premium tax credits, some stakeholders are calling for new nationwide restrictions on abortion coverage. These stakeholders want to ban abortion coverage even though the Affordable Care Act has long deferred to state decisions, including decisions by 25 states to prohibit marketplace plans from covering abortion services. For states that require or allow this coverage, the Affordable Care Act prohibits insurers from using federal premium tax credits or cost-sharing reduction payments to pay for abortion services that fall outside the Hyde Amendment’s narrow exceptions. Insurers must also comply with a wide range of other restrictions.
New nationwide restrictions on abortion coverage would fundamentally rewrite Affordable Care Act requirements that have been in place for more than a decade. Any changes would disproportionately impact coverage in states where abortion remains lawful and would be inconsistent with President Trump’s promise to leave the issue of abortion access to the states. This article summarizes the abortion-related restrictions that have long applied to marketplace plans and discusses how new restrictions would limit coverage and care.
The Affordable Care Act And Abortion Coverage
Coverage of abortion was one of the most contentious and last resolved issues in the debate over the Affordable Care Act. The final Senate compromise generally deferred to state laws on abortion while allowing (but not requiring) the coverage of abortion services by marketplace plans. For plans that cover this care, Congress imposed several restrictions and requirements under Section 1303 of the Affordable Care Act, including restrictions under the Hyde Amendment (which prohibits the use of federal funds for abortion services unless the pregnancy is a result of rape or incest, or would endanger a woman’s life).
Deference To State Coverage Decisions
Half of states currently prohibit abortion coverage in marketplace plans under Section 1303(a), which allows states to pass a law to prohibit (or reinstate) such coverage. Section 1303 also makes clear that insurers can voluntarily choose whether to cover abortion services or not, subject to state law.
States have relied on this long-standing framework. As of May 2025, 25 states prohibit marketplace plans from covering non-Hyde abortion services. This includes all but one state with an abortion ban as well as some states where abortion is currently lawful (such as Arizona, Kansas, Montana, Ohio, and Pennsylvania). In general, state decisions under Section 1303 are unrelated to abortion bans. This is because states have had the option to prohibit this coverage since 2010, and most adopted these policies long before the Supreme Court’s decision to overturn Roe v. Wade in 2022. Indeed, nearly half of states prohibited this coverage even when abortion was lawful nationwide, a choice that Congress allowed under Section 1303.
Meanwhile, 12 states require marketplace plans to cover non-Hyde abortion services. According to KFF, about 3.7 million people were enrolled in marketplace plans in these states in 2023. In the remaining 13 states and D.C., abortion coverage is neither required nor prohibited, meaning all or some insurers might cover non-Hyde abortion services.
Beyond allowing state coverage decisions, Section 1303 lays out how the Affordable Care Act applies to other federal and state laws regarding abortion. This provision makes clear that nothing in the Affordable Care Act preempts or otherwise disturbs (1) state laws related to abortion; (2) federal conscience laws related to abortion; or (3) federal obligations under Title VII of the Civil Rights Act. Section 1303(c)(1) explicitly affirms that the Affordable Care Act should not be read “to preempt or otherwise have any effect on [s]tate laws regarding the prohibition of (or requirement of) coverage, funding, or procedural requirements on abortions.” Finally, insurers that cover non-Hyde abortion services must disclose this coverage in their summary of benefits and coverage.
Limits On The Use Of Federal Funds
The Affordable Care Act prohibits insurers from using any portion of premium tax credits or cost-sharing reduction payments to pay for non-Hyde abortion services. Section 1303(b)(1)(B) incorporates the most recent version of the Hyde Amendment by prohibiting the use of federal funds “based on the law as in effect as of the date that is 6 months before the beginning of the plan year involved.” This ensures that the text of the most recent version of the Hyde Amendment, which has changed over time, applies to the use of federal marketplace subsidies.
To ensure that no premium tax credits or cost-sharing reduction payments are used for non-Hyde abortion services, Section 1303 requires insurers to segregate the premium attributable to the coverage of non-Hyde abortion services, which can be no less than $1 per enrollee per month, in a separate account. These segregated accounts help ensure that non-Hyde abortion services are funded solely by the enrollee’s premium (rather than by federal premium tax credits or cost-sharing reduction payments). State insurance regulators are generally responsible for enforcing these requirements.
Implementation Of Section 1303
Obama Administration
President Obama reaffirmed Section 1303’s requirements in an executive order issued on March 24, 2010, the day after the Affordable Care Act was signed into law. His order—which was titled “Patient Protection and Affordable Care Act’s Consistency with Longstanding Restrictions on the Use of Federal Funds for Abortion”—affirmed that the law “maintains current Hyde Amendment restrictions” and “extends those restrictions to the newly created health insurance exchanges.” President Obama also directed federal agencies to (1) develop model segregation guidelines to help ensure compliance with Section 1303; and (2) issue regulations to implement these requirements. The Department of Health and Human Services (HHS) and the Office of Management Budget did so by issuing model guidelines in September 2010 and regulations in March 2012.
In 2014, a report from the Government Accountability Office found mixed compliance with Section 1303 among 18 insurers that operated in 10 states during the first year of marketplace operations. Following this report, HHS issued additional guidance in 2015 to reiterate Section 1303 requirements and instruct insurers on how to comply with this provision. This guidance allowed insurers to itemize non-Hyde abortion services and other services in a single bill that a consumer could pay in a single transaction so long as the funds were segregated by the insurer consistent with Section 1303. (There was also early litigation over consumers’ ability to select a plan without abortion coverage.)
Trump I Administration
In fall 2017, the Trump administration issued a bulletin to remind insurers of their obligations under Section 1303. HHS threatened to assess civil monetary penalties against insurers for noncompliance and urged state-based marketplaces to do the same. As Tim Jost and I wrote at the time, this enforcement stance was a shift from the 2015 guidance “which had affirmed the role of states and state insurance commissioners as the primary entities responsible for implementing and enforcing Section 1303.” The bulletin also mentioned the possibility of updating HealthCare.gov to display plan-specific information about the coverage of non-Hyde abortion services, a change that HHS rolled out in October 2018 and issued guidance on in November 2018.
This was followed by adoption of the “double billing” rule, which was proposed in November 2018 and finalized in December 2019. This rule, which never went into effect, would have required insurers to send—and consumers to pay—two entirely separate monthly bills for the amount of the premium attributable to non-Hyde abortion services and the amount of the premium for all other services.
Critics argued that the double-billing rule would lead to coverage losses when consumers who failed to pay both bills would see their coverage terminated. The rule also would have significantly burdened insurers, marketplaces, and consumers—to the tune of hundreds of millions of dollars each year that would have resulted in higher premiums and lower enrollment. Given these burdens, commenters argued that the rule was designed to discourage insurers from covering non-Hyde abortion services altogether, even when doing so is clearly allowed under Section 1303.
Litigation swiftly followed, with suits filed by Democratic attorneys general, patients, and Planned Parenthood of Maryland. While these lawsuits were pending, HHS delayed the rule’s June 2020 effective date in response to the COVID-19 pandemic. The litigation proceeded, and the double-billing rule was ultimately set aside by district courts in California, Maryland, and Washington in 2020. The rulings in California and Maryland vacated the rule on a nationwide basis. The ruling in Washington was limited to Washington State and decided on preemption grounds. The Trump administration appealed those decisions to the Ninth Circuit Court of Appeals (for the California and Washington cases) and to the Fourth Circuit Court of Appeals (for the Maryland case).
Biden Administration
In 2021, the Biden administration asked to put those appeals on hold, a request granted by the Fourth Circuit and the Ninth Circuit in its two pending lawsuits. In June 2021, HHS proposed to eliminate the double-billing rule, citing the court decisions and the agency’s view that the rule was no longer justified in light of consumer confusion, coverage losses, and the burdens on insurers, states, marketplaces, and consumers. HHS also recognized the risk that insurers might stop covering non-Hyde abortion services to avoid these costs, leading to higher out-of-pocket costs for consumers who need these services.
A majority of commenters supported this change, and HHS finalized this repeal in September 2021. In doing so, HHS made clear that insurers must continue to comply with Section 1303 by collecting a premium of at least $1 per month, treating that portion of premium as a separate payment, and segregating funds for non-Hyde abortion services.
And, in 2023, HHS issued guidance that reaffirmed Section 1303’s requirements following the Supreme Court’s decision to overturn Roe v. Wade. The guidance made clear that the Court’s decision did not affect federal regulations to implement Section 1303 and reiterated that coverage of non-Hyde abortion services is subject to state law.
Impact Of Additional Restrictions On Abortion Coverage
The above describes the framework that has been in place for more than a decade—in law since 2010 and in operation since marketplace coverage became available in 2014. Under this framework, about half of states have long banned marketplace plans from covering abortion. The other half of states have chosen to require or allow the coverage of non-Hyde abortion services in ways that best suit their state’s specific needs. As such, any new abortion-related restrictions would conflict with state coverage decisions and significantly disrupt coverage for millions of Americans in states where abortion remains lawful.
Republicans in Congress already tried to undermine abortion coverage earlier this year. Although this provision was ultimately stripped from the final version of the One Big Beautiful Bill Act, earlier House and Senate versions would have prevented silver marketplace plans that cover non-Hyde abortion services from receiving cost-sharing reduction payments. As discussed in this Commonwealth Fund explainer, this provision would have led to coverage losses, higher net premiums for consumers, and operational burdens while forcing at least some insurers to stop covering non-Hyde abortion services.
This policy was not ultimately included in Republicans’ final budget reconciliation package. Yet stakeholders now appear to be advocating for even more severe restrictions than what Congress just rejected. Specifically, anti-choice stakeholders want Congress to make it impossible for marketplace plans to cover non-Hyde abortion services while still receiving premium tax credits and cost-sharing reduction payments. As noted above, Section 1303 already prohibits the use of federal premium tax credits and cost-sharing reduction payments for non-Hyde abortion services. And, without this coverage, women could face hundreds (if not thousands) of dollars in out of pocket costs for this care.
Because premium tax credits can be used to purchase plans at any metal level (i.e., not just silver), such a prohibition would affect every marketplace plan in the 12 states that require this coverage. Such a change would be highly inconsistent with Section 1303’s long-standing deference to state decisions on abortion coverage. As such, these states would be forced to make difficult decisions about the future of their mandates. States might try to sue the federal government to resolve this conflict; eliminate or limit abortion coverage; or try to maintain their mandate but forgo premium tax credits (which seems highly unlikely given the federal dollars at stake). In the 13 states and D.C. where coverage is allowed but not required, insurers would very likely drop the coverage of non-Hyde abortion services in order to preserve access to federal subsidies.
Such a change would lead to severe disruption for consumers, providers, and insurers. Take the double-billing rule as a point of comparison. In finalizing this rule in 2019, the Trump administration acknowledged that this policy would have affected 94 insurers that offered a total of 1,467 plans for 2020—about 32 percent of the on-marketplace individual market. If this rule had gone into effect, an estimated 2 million consumers nationwide would have been forced to pay a separate premium (at a conservative estimate of $35.5 million in costs to consumers). HHS estimated that total costs to insurers, marketplaces, and consumers would have been $546.1 million in the first year of implementation alone and led to annual premium increases of one percent beginning in 2021.
The costs associated with broader nationwide restrictions on abortion coverage that are currently being called for would be even greater than those associated with the double-billing rule. If Congress advances even more dramatic changes, states would lose the ability to choose how to regulate their insurance markets, and millions of marketplace enrollees and their families would face new limits on coverage for most abortion services.