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Elaine Thompson  /  AP
Mila Kinney, right, and Pam Gunderson pray during opening remarks at a rally of several thousand opposing abortion on Tuesday, Jan. 22, 2013, in Olympia, Wash. Abortion opponents marked the 40th anniversary of Roe v. Wade on Tuesday with workshops, prayers and calls for more legislation chipping away at the abortion rights the U.S. Supreme Court decision seemed to guarantee. (AP Photo/Elaine Thompson)
By Senior Writer, NBC News
updated 2/14/2013 10:50:50 AM ET 2013-02-14T15:50:50

Abortion opponents are making use of a new way to restrict access to abortion – by using the authority states have over the new health insurance exchanges, which will be up and running in a year.

At least 21 states have legislation in place or in the works that will stop health insurance companies from paying for abortions for women. Arkansas governor Mike Beebe signed the latest piece on Monday.

The 2010 Affordable Care Act requires states to set up health insurance marketplaces called exchanges by October of this year. Through exchanges, people who don’t have health insurance through the government or an employer can buy health insurance.

States that set up their own exchanges can set the rules for insurers who take part. States that decline to set up exchanges will rely on the federal government to run them.

“Since the health care law was passed, because there is language in the law that says specifically that states can do this, states have taken it up,” says Gretchen Borchelt, who heads state reproductive health policy at the National Women’s Law Center.

The law was a reminder, Borchelt says. “They said, ‘hey we can do this?’”

Elizabeth Nash of the Guttmacher Institute, which conducts research into reproductive issues, agreed. “It really spotlighted the issue for the states,” she said.

Mary Harned, staff counsel of Americans United for Life, said her group wrote up draft legislation for states to use as a template. "I definitely think the Affordable Care Act and the whole healthcare reform date raised awareness," Harned said in a telephone interview.

Three states – Kansas, Nebraska and Utah – passed their own legislation almost as soon as the health reform law was signed in 2010. Their laws ban any insurance company that takes part in the health insurance exchanges from paying for abortion.

Other states that have since passed similar bans, meaning no woman can get her abortion covered by health insurance provided on the exchanges, include: Alabama, Arizona, Florida, Idaho, Indiana, Louisiana, Mississippi, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin.

Kentucky has had a law limiting insurance companies from paying for abortions on the books since 1984; Missouri since 1983, North Dakota since 1979.

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According the the National Right-to-Life Committee, eight states also regulate private insurance plans' coverage of abortion -- usually with exceptions for health. Pennsylvania requires insurers to offer plans that don't cover abortion. And 16 states don't allow insurance for public employees to pay for abortion.

“Bans like this will take coverage away from women. Women are going to lose benefits they currently have,” Borchelt said. “We are very, very concerned that women are losing access to these benefits and concerned that politicians are stepping in and interfering with a woman’s ability to make her own health care decisions."

No federal funds
Most of the states allow insurance to pay for abortions with certain exceptions, such as when the mother’s life is at risk, and some in the case of rape or incest.

Federal law already forbids the use of federal funds to pay for abortions. Federal money will be used to subsidize coverage for millions of people expected to sign up on the health insurance exchanges, and so it could not be used to pay for abortions.

“The law maintains current Hyde Amendment restrictions that govern abortion policy, which prohibit federal funds from being used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), and extends those restrictions to the newly created health insurance exchanges,” the National Conference of State Legislatures says in a statement on its website.

“The new health reform law also maintains federal ‘conscience’ protections for health care providers who object to performing abortion or sterilization procedures that conflict with their beliefs.”

Abortion opponents say they don't want their tax dollars being used for abortions. Harned said some of the draft legislation is also meant to prevent people who have private insurance from indirectly paying for other people's abortions.

Arkansas state senator Cecile Bledsoe, who helped usher through her state’s legislation, has said the states need to provide some structure.

“Without this law, those who are responsible for setting up our health care exchanges will be left without clear guidance from the legislature about how to deal with abortion as they deal with the recently passed federal health care law," Bledsoe told the Associated Press as saying. She did not immediately return requests for comment from NBC News.

Dana Singiser, vice president for public policy at the Planned Parenthood Federation of America, said the moves to block coverage on the exchanges were part of a larger anti-abortion strategy that relies on state law. “Our opponents have not seen much success at the federal level and they are turning to the state legislatures as an alternative strategy,” Singiser said in a telephone interview.

Borchelt said groups like hers that support access to abortion are lobbying in the states that don’t have laws on the books. “We are certainly working very hard in states that are considering these bans to try and stop them from moving forward,” she said.

Georgia and New Jersey are among states considering measures. "It's important for states to act now," Harned said.

Costs going up
The laws, along with measures that make it more difficult for abortion clinics to operate, requiring multiple visits to providers before a woman may get an abortion or mandating extra examinations such as ultrasounds, are all making it harder for women to get abortions, Borchelt said.

“Sometimes because a woman has to have a waiting period or has to get informed consent, which requires several trips, the procedure is getting pushed back later and later and so the cost of an abortion is going up,” Borchelt said.

Nash said a simple early-term abortion costs about $450, but this cost goes up greatly for a later-term abortion. Women who discover late in pregnancy that a fetus is malformed or whose own lives or health are at stake may have to pay thousands of dollars out of pocket for an abortion in states that ban all insurance coverage, she said.

But many women already pay out of their own pockets for abortions, even if they have insurance coverage, Nash added. “They are afraid their employers may find out they had abortions. They are afraid their spouse will find out they had an abortion,” she said.

Abortion rates have been falling in recent years.

The Centers for Disease Control and Prevention says 784,507 legal induced abortions were reported in 2009 from 48 reporting areas. About 22 percent of pregnancies ended in deliberate abortion.

An NBC/Wall Street Journalpollreleased last month found that 70 percent of Americans oppose efforts to overturn Roe v. Wade, the Supreme Court ruling that made abortions legal in the United States.

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