PROVIDENCE – Twenty-eight state legislators joined with the anti-abortion group Rhode Island Right to Life (RIRTL) Thursday in a court challenge questioning the constitutionality of the Health Benefits Exchange Gov. Lincoln Chafee established by executive order earlier this year to carry out a portion of the federal “Obamacare” healthcare reform law.
The action comes just two days after the announcement that Rhode Island was awarded $58.5 million as the “first in the nation” to receive multi-year “Level II” grant to establish the exchanges, which will allow people who do not currently have life insurance to obtain affordable coverage. The state previously received a $1 million planning grant in 2010 and a $5.2 million Level I establishment grant last May.
In a press conference Thursday, RIRTL said creating the health benefits exchange by executive order, rather than by legislation, violates the separation of powers amendment to the state constitution passed by voters several years ago. But the essence of their objection is that they fear the benefits exchange as established by Chafee’s order could allow state or federal funds to be used to purchase insurance that would cover abortion services.
Attorney Joseph Larisa, who filed RIRTL’s complaint in Washington County Superior Court, asserted that the exchange as it stands does not have any executive powers and its appointed members were not confirmed by the Senate.
He said the executive order as written gives enormous power to the director of the Department of Health to spend the $58 million.
He pointed out that both the Senate and House versions of health benefit exchange bills contained a legislative finding that said, “Statutory changes to Rhode Island law are necessary” to establish the exchange.
Both Larisa and RIRTL Board Member Susan Yoshihara said the federal “Hyde amendment,” which forbids federal money to be used for abortions, would not apply to the new federal health care law. They said the Hyde amendment only applies to federal Medicaid dollars and that other measures, such as the one giving members of the armed forces health care, have their own language forbidding federal money from being used for abortions.
Larisa denied the organization was “judge shopping” by filing the suit in Washington County; he said the purpose for doing so was that the case could have one judge from start to finish. If it were filed in Providence County, he explained, there could be one judge to hear a motion for injunction, another to hear a summary judgment request and a third to preside over the trial. Having just one judge for all the proceedings could help the case move through the court system more frequently, Larisa said. He added that Judge Judith Savage is currently the judge in Washington County, but that will likely change soon with the normal rotation of judges’ schedules. He said there is no way to know now which judge would eventually get the case.
It was a squabble over abortion funding that scuttled proposed legislation to establish an exchange in the General Assembly earlier this year.
The Senate reportedly insisted on an amendment to the benefits exchange bill that explicitly outlawed the use of federal or state funds to purchase insurance that covered “induced abortions,” except in cases of incest or when the life of the mother would be at risk if the pregnancy were carried to term. That bill also made an allowance for abortion coverage to be purchased separately in a rider for which no public money is used.
The House did not agree to that language, which was not in its version of the bill, so the assembly adjourned with neither bill passing.
Shortly afterward, it was suggested that the governor could establish a benefits exchange by executive order and Chafee did so on September 19.
Senate President Teresa Paiva Weed was seen as instrumental in adding the abortion language to the Senate bill. In a statement Thursday, she painted the exchange established by the executive order as an “interim structure” as “a step toward application for federal funding.” Repeating sentiments she expressed when the exchange was created in September, Paiva Weed said, “This new structure is satisfactory only if it is temporary and the board has no executive authority, pending action by the General Assembly. It is my intention to work vigorously toward enactment of a more comprehensive and permanent quasi-public authority early in the next session."
Chafee issued a written statement Thursday that said, “This lawsuit was not unexpected, and the Lt. Governor and I remain confident in our legal position and comfortable with the path we have taken to establish Rhode Island's Health Benefits Exchange. Without our action to establish this exchange, Rhode Island would have missed out on more than $58 million in funding and would have, instead, had a one-size-fits-all, generic system imposed on it by the federal government.
“Now, however,” the statement continued, “Rhode Island is leading the nation in its exchange implementation, having just received over $58 million in level II funding. The complaint filed today jeopardizes this important funding and threatens our state's ability to develop a unique system that is custom-made for Rhode Island and fits the unique needs of the people of our state.”
Lt. Gov. Elizabeth Roberts joined Chafee in the press release, noting that, “Expanding access to affordable healthcare coverage to all Rhode Islanders through creation of the Health Benefits Exchange remains my top priority. We have made unparalleled progress in this direction, and we will not be deterred until an exchange is in place where families and small businesses are able to compare and purchase the healthcare coverage they want, expect and so deserve.”
Kate Brock, executive director of Ocean State Action, issued a scathing statement criticizing the court action.
“The RIRTL lawsuit demonstrates a blatant disregard for the 140,000 Rhode Islanders without health coverage who will benefit from the implementation of the Affordable Care Act,” Brock said. “It is both irresponsible and negligent that 28 of Rhode Island’s elected officials would sign on to this lawsuit endangering the future of health reform in Rhode Island and with it access to quality, affordable health care coverage for all.
“RI RTL’s agenda is clear. Their goal is to limit access to abortion by any means necessary and they are willing to jeopardize health care reform, and the health and welfare of Rhode Islanders to do so.”
RIRTL Executive Director Barth Bracy rejected that notion, saying, “We supported the only bill that has passed
I believe, with some knowledge, that the majority of lawmakers in the state of Rhode Island are opposed to public funding for elective abortions and there are very few lawmakers in that building who want to go home to their constituents and tell them that they passed a bill that will result in subsidies for elective abortion. In no way are we opposed to health care reform. I would suggest that they be the ones questioned whether they are willing to oppose health care reform if they don’t get their subsidies for elective abortion.”
Local legislators who are named as plaintiffs in the lawsuit are Rep. Jon Brien and Sen. Marc Cote of Woonsocket, Rep. Michael Chippendale of Glocester, Rep. Karen MacBeth and Rep. James McLaughlin of Cumberland, Rep. Rene Menard of Lincoln, and Rep. Brian Newberry of North Smithfield.
None of the lawmakers named in the suit attended the RIRTL press event.