ExecutiveOrdersEO
EO 13535Executive OrderObama · D

Executive Order 13535

Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act

This executive order reinforces existing Hyde Amendment restrictions on federal funding for abortion services within the Affordable Care Act, directing HHS and OMB to develop model accounting guidelines for segregating funds in health insurance exchanges and requiring HHS to ensure community health center grantees comply with abortion funding limitations. It was issued to secure support for the ACA's passage by addressing concerns from anti-abortion legislators about federal subsidies potentially covering abortion services.

Federal Register Open PDF 75 FR 15599

Impact dates

  1. Health insurance exchanges operational with segregation requirements

  2. HHS to initiate rulemaking for regulations with force of law on segregation requirements (upon completion of model guidelines)

  3. OMB and HHS to develop model segregation guidelines for state insurance commissioners

Key directives

  • OMB Director and HHS Secretary shall develop model segregation guidelines for state insurance commissioners within 180 days
  • Model guidelines shall include technical information for states to conduct independent regular audits of exchange-participating insurers
  • HHS Secretary shall promptly initiate rulemaking to issue regulations interpreting segregation requirements upon completion of model guidelines
  • HHS Secretary shall provide guidance to state insurance commissioners on compliance with model guidelines
  • HHS Secretary shall ensure CHC program administrators and federal fund recipients aware of and comply with abortion service limitations
  • HHS shall update Grant Policy Statements accompanying CHC grants
  • HHS shall issue new interpretive rules for CHC funding restrictions

Who is ordered

Timeline

Immediate

  • EO establishes policy that Hyde Amendment restrictions apply to ACA programs
  • HHS directed to ensure CHC program administrators aware of abortion funding limitations

Near term (90d)

  • OMB and HHS to develop model segregation guidelines within 180 days (by September 20, 2010)
  • HHS to update Grant Policy Statements for CHCs
  • HHS to issue new interpretive rules for CHC funding restrictions

Long term

  • HHS to initiate rulemaking for regulations with force of law on segregation requirements
  • Health insurance exchanges to become operational in 2014 with segregation requirements in place
  • Ongoing audits of insurance companies participating in exchanges

Risks & tensions

  • Vague timing: 'promptly initiate rulemaking' and 'should' language in Section 2 creates uncertainty about binding deadline for HHS rulemaking
  • Potential tension between segregation requirements and practical implementation complexity for insurers
  • Conscience protections (Church/Weldon Amendments) may conflict with state or local anti-discrimination laws
  • EO explicitly disclaims creating enforceable rights (Section 4c), limiting judicial recourse for alleged violations
  • Political context: EO negotiated to secure legislative votes, raising questions about durability beyond Obama administration
Executive Order 13535: Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act · Executive Orders