News Abortion

Why Poland’s Proposed Abortion Ban is a Get-Rich-Quick Scheme for the Medical Establishment and a Death Sentence for Women

Katarzyna Pabijanek

The Polish Parliament is considering a total ban on abortions, with no exceptions for the life of women. Meanwhile, women remain without access to safe, legal abortion even under current exceptions; abuse of conscience clauses to deny women both contraception and abortion is rampant; and the medical establishment is making millions off of clandestine illegal abortion.

On June 30th, the Polish Parliament debated a bill that would totally ban abortion in Poland, even if a woman’s life were in danger. The left-wing party put forward a proposal to reject the bill during the first reading but the other political parties demanded the bill be referred to committee for consideration, and their proposal won by a vote of 261 to 155.. The committee will present a report on the bill to Parliament by early September. The draft bill, named “On the protection of human life from the moment of conception” – was initially submitted to Parliament in April 2011. The draft was prepared by the Committee of Legislative Initiative led by Mariusz Dzierzawski, a fanatic opponent of abortion, known as an organizer of the macabre anti-abortion exhibitions held in the Polish cities.

Poland’s abortion law is one of the most restrictive in Europe and even more restrictive in practice than on paper. Although the law allows termination of pregnancy under three conditions – including for therapeutic reasons and when it results from a criminal act – legal abortion is actually not accessible even for women whose conditions fall under the exceptions. According to the annual report on implementation of the current abortion law (“Law on family planning, protection of the human fetus and conditions for legal abortion”) there are approximately 500 (out of ten million women of reproductive age) legal pregnancy terminations a year.

The legal principles are applied with great rigidity and there is widespread abuse of conscience clauses among doctors and entire institutions intended to deny women legal abortion.   According to Polish law, physicians can refuse to perform abortion or dispense contraceptives on the grounds of conscientious objection. The conscientious objection clause and the way it is exercised in Poland have become a significant barrier to accessing services to which women are entitled by law.  It also happens quite often in Poland that conscientious objection is ”practiced” by the entire hospital, not by individual doctors, which opposes the individuality-based concept of the conscience clause. The recent anti-choice initiative call on the pharmacists to refuse to sell the contraceptives in pharmacies, and was inspired by the Council of Europe’s recent unfortunate resolution “The right to conscientious objection clause in the legal care”.

One case that upset much of the general public concerned a visually-impaired Polish woman, who was denied an abortion on health grounds, even though medical diagnoses confirmed that continuing her pregnancy could further severely damage her vision, thereby constituting a risk to her health.

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Meanwhile the criminalization of abortion in Poland has led to the development of a vast illegal private sector with no controls on price, quality of care or accountability. Clandestine abortions generate up to $95 million a year for Polish doctors as women turn to the illegal private sector to terminate pregnancies. Since abortion became illegal in the late 1980s the number of abortions carried out in hospitals has fallen by 99 percent. The private trade in abortions is, however, flourishing, with abortion providers advertising openly in newspapers. The biggest losers are the least privileged: in 2009 the cost of a surgical abortion in Poland was greater than the average monthly income of a Polish citizen. Low-income groups are less able to protest against discrimination due to lack of political influence. Better-off women can pay for abortions generating millions in unregistered, tax-free income for doctors. Some women seek safe, legal abortions abroad in countries such as the UK, the Netherlands, Czech Republic and Germany.

The newest law proposal is being debated by the Parliament, and the report is to be presented in early September. The leftist Democratic Left Alliance Party presented another bill calling for liberalization of abortion. However, the progressive bill will not be discussed by the Parliament during its current term. Parliamentary elections are scheduled for October and it is becoming obvious that abortion will be the main coin used to gain voters. Pro-choice groups are currently forming an initiative to push for a liberal bill introducing refundable legal abortion till the 12th week of pregnancy, funding for contraceptives and sexual education in schools.

Poland is currently presiding over the council of the European Union, and the failure to reject this very restrictive bill on the very first day of the Presidency of the EU Council is a worrying signal to the international community. Polish groups have initiated a campaign calling on supporters to send a letter to the Prime Minister of Poland.  

The letter is available at ASTRA’s website and copied below.  We encourage you to send your letter opposing this law to Prime Minister Donald Tusk, donald.tusk@sejm.pl.  We also ask that you send a cc: federa@astra.org.pl.

Sample letter:

Your Excellency, I write to express my concern that the draft text for the new bill on abortion: “The law on changing the Law on family planning, protection of the human fetus and conditions for legal abortion” – to be discussed by the Parliament’s Committee by the 1st of September – contains provisions on that will result in violations of women’s sexual and reproductive rights and health. The international human rights standard is to liberalize abortion laws to make it safe and accessible to women and thereby lessen maternal mortality related to unsafe abortion. The language used in the draft of the new bill regarding the right to life does not correspond to that used in international and European human rights instruments – to which Poland is also party – as it unconditionally prohibits abortion, thereby leading not to lessening the number of women inducing abortion but only makes it dangerous for women who will undergo clandestine and unsafe abortion. Passing the bill will increase maternal mortality, abortion-related injuries and deaths are likely to be especially high among poor women, who can’t afford to travel abroad. As a result, many of them might try self-induced abortions. It is unacceptable that in the 21st Century, a European country includes in its legislation a provision which directly endangers women’s lives. I trust that you will do your best to ensure that Poland considers reviewing its legislation regarding abortion in a forward-looking legislation, taking the lead in promoting women’s sexual and reproductive rights. Sincerely yours,

Analysis LGBTQ

Medicaid Coverage for Transition-Related Care ‘Is Really a Life-or-Death Issue’

Annamarya Scaccia

Medicaid's exclusionary regulations deny many low-income transgender people access to medically necessary health care, advocates say, and cause physical, mental, and economic harm.

Pennsylvania’s ban on Medicaid coverage for transition-related care is discriminatory and unreasonable, says a transgender man who filed a federal court lawsuit against the state’s Department of Human Services Secretary Theodore Dallas in February.

The plaintiff, John Doe of Delaware County, says Medicaid denied him coverage in 2015 for an abdominal hysterectomy his doctor deemed medically necessary to treat his gender dysphoria diagnosis, according to the complaint. Doe’s complaint notes that “Medicaid coverage in Pennsylvania includes payments for medically necessary hysterectomies,” but that it bans those for individuals diagnosed with gender dysphoria. He claims state regulations banning transition-related care, which led to the coverage denial, violate federal and constitutional law. The courts granted Doe’s request for anonymity shortly after he filed his complaint.

Pennsylvania is one of 16 states that prohibit Medicaid coverage of transition-related care, including hysterectomies, gender confirmation surgeries, and hormone therapy. These exclusionary regulations deny many low-income transgender people access to medically necessary health care, advocates say, and cause physical, mental, and economic harm.

“Medicaid is supposed to be a safety net for people who can’t otherwise access health care,” said Harper Jean Tobin, director of policy at the National Center for Transgender Equality, in an interview with Rewire. “That puts people who need care and can’t afford it and can’t get covered under Medicaid in a very bad situation.”

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According to the complaint, Keystone First Health Plan, which administers Medicaid in southeastern Pennsylvania, denied Doe’s doctor’s insurance request for Medicaid coverage in July 2015. Doe appealed, but an administrative law judge upheld the decision in October 2015, stating that Keystone is bound to “clear and express regulations,” which do not “permit the approval of the requested hysterectomy.”

Doe is seeking an injunction to order DHS to immediately cover Doe for all transition-related care, as well as eliminate Pennsylvania’s exclusionary regulation. He also asked for a declaratory judgment ruling that Pennsylvania’s Medicaid exclusion regulations are discriminatory and a violation of the 14th Amendment’s Equal Protection Clause.

“We hope that that declaration will enable thousands of the neediest among us to be provided with Medicaid for their gender dysphoria,” said Doe’s attorney Julie Chovanes, who runs the Trans Resource Foundation.

The state responded to the complaint on March 31, denying allegations that its policy is discriminatory and unconstitutional. The state also believes that Doe is not entitled to any relief. At press time, no hearing or trial date had been set in Doe’s case.

“This Is Really Life or Death”

Exclusionary policies like Pennsylvania’s, advocates say, have a twofold effect: They deny necessary health care to transgender Americans and, in turn, threaten their economic stability and safety. Transgender people are disproportionately more likely to be poor and more likely to rely on needs-based state-run programs such as Medicaid, and research shows that they benefit from the very transition-related care for which Medicaid is denying them coverage.

A 2015 joint report by the Center for American Progress and the Movement Advancement Project found that transgender Americans are four times more likely to live on less than $10,000 a year per household than the cisgender population. Rates are even higher for transgender people of color—Asian and Pacific Islander (API) and Latino transgender Americans, for example, are nearly six times more likely to live in extreme poverty than cisgender API or Latino Americans, respectively.

“If you think about Medicaid as a policy that’s not just to protect people’s health but to potentially make it possible for people to climb out of poverty,” said Tobin, “then having broad exclusions on important health needs is something that helps keep them stuck in poverty.”

Research has shown the benefits of transition-related care. A 2015 Journal of Urban Health report found that when trans women have access to and utilize transition-related care, they are at significantly lower risk of suicidal thoughts and substance abuse. But remove that access, and transgender Medicaid enrollees are left in a precarious position, says Joanne Carroll, president of TransCentralPA, an advocacy group based in Harrisburg, Pennsylvania. They may forgo care, leading to emotional, mental, and physical distress; they may find risky ways to pay for care or plunge deeper into poverty; or they may use illegal methods to get the care they need.

To that last point, Carroll said transgender people will sometimes buy hormones offshore without medical supervision or go to illegal silicone pumping parties because they can’t afford augmentation.

And it’s costing lives, she said. Last January, a 40-year-old transgender woman died after being injected with silicone at a party in Santa Ana, California. Another trans woman died on New Year’s Day 2014 after two months in a coma from illegal silicone injections. Trans Road Map has a list of further incidents from 2003 through 2011 on silicone-related deaths.

“Denying people health care is causing them to seek stuff off the radar,” Carroll told Rewire, “which is ultimately killing off a lot of people.”

Advocates note that Medicaid coverage alone won’t stop these off-the-radar methods, as intolerant doctors, inadequate medical services, and other systemic barriers cause trans people to seek out that care. But, they say, eliminating transgender health-care exclusions in Medicaid is a necessary step toward addressing these safety concerns, though not a complete solution.

Leading health organizations have affirmed the medical necessity of providing coverage for transition-related care throughout the years. In 2008, the American Medical Association and American Psychological Association both passed resolutions supporting transgender health-care inclusion in public and private health insurance. Similar declarations have been made by the American Congress of Obstetricians and Gynecologists in 2011, the American Academy of Family Physicians in 2012, and the American College of Physicians in 2015, to name a few.

“The evidence is there around the effectiveness and medical necessity of this type of care,” said M. Dru Levasseur, director of the Transgender Rights Project at Lambda Legal, in an interview with Rewire. “This is really a life-or-death issue for transgender people.”

“Actionable Under the Law”

In September, the U.S. Department of Health and Human Services (HHS) released proposed regulations clarifying that civil rights protections afforded in Section 1557 of the Affordable Care Act also apply to Medicaid. The proposed HHS rule states that, under Section 1557’s sex discrimination ban, many health insurance plans—which include state-run Medicaid programs—cannot discriminate on the basis of gender identity. HHS already made this explicit for Medicare, which serves older Americans and people with disabilities, two years ago.

The proposed federal rule, then, upholds that Medicaid exclusions nationwide are discriminatory on their face, advocates say. “That basically sets out that this is actionable under the law,” said Levasseur.

HHS is expected to release its final rule this summer.

There’s case law to support HHS’s clarification. In March 2015, a federal court ruled in Rumble v. Fairview Health Services that anti-trans discrimination is prohibited under the ACA for providers and hospitals accepting federal Medicaid or Medicare funds. The federal lawsuit was brought on behalf of a young trans man in Minnesota who alleged health-care providers at a nonprofit hospital were intolerant and provided substandard care because of his gender identity.

But while federal law prohibits health-care discrimination by providers on the basis of gender identity, how it applies to Medicaid coverage varies state-to-state. Such spotty interpretation has led to a patchwork of policies protecting against transgender health-care discrimination.

Only 11 states plus the District of Columbia have Medicaid policies inclusive of transition-related care coverage, according to data from the Movement Advancement Project. Pennsylvania and 15 other states have explicit regulations denying such coverage of care. Twenty-three states have no clear rule on the matter. Nearly two-thirds of the LGBTQ population live in states that either have exclusionary policies or have no explicit policy at all.

lgbtmaFurthermore, 12 states plus the District of Columbia—nine of which have laws prohibiting health insurance discrimination based on sexual orientation and gender identity—have also banned transgender health-care exclusions from private insurance. (Although Minnesota mandates protections for transgender health care in private insurance, its state Medicaid program specifically excludes transition-related care, according to MAP.)

Advocates say that efforts to abolish state-sponsored exclusionary policies are already happening at the local, grassroots level. New York state announced in late 2014 that its Medicaid program would cover transgender health care after 12 years of campaigning by the Sylvia Rivera Law Project, a collective providing legal services to New York City’s transgender population. Advocates hope more states will roll back their prohibitory regulations as they wait for HHS to release its final rule.

“It’s a matter of time and multiple strategies for states to fall in line with where they should,” said Levasseur, “which is the medical consensus that you cannot have exclusions for certain people’s health care.”

The cost to states for inclusive transition-related Medicaid coverage would be negligible, advocates say. According to Tobin, states would only have to cover the health-care needs of “a relatively small part of the population” on Medicaid. In fact, when Oregon added transition-related care to its Medicaid program in 2014, the state’s Health Evidence Review Commission estimated it would cost the state less than $150,000 of its total annual Medicaid budget and impact about 175 enrollees per year, reported the Advocate.

“In that sense, it’s a drop in the bucket,” said Tobin. “But you’re also talking about spending a little bit of money now to prevent treating complications later.”

And, she continued, providing transition-related care would also cost states far less than covering later symptoms from untreated gender dysphoria, such as depression and substance abuse.

Pennsylvania Gov. Tom Wolf (D) has spoken out against the state’s Medicaid exclusion in response to the John Doe case. He said through his spokesperson that precluding coverage for transition-related care is “wrong” and that the state shouldn’t discriminate “based on sexual orientation and gender identity and expression,” according to Philadelphia Magazine.

“The governor hopes to have a robust conversation with the legislature, community and all other parties regarding this issue to move the commonwealth forward,” the spokesperson said last month.

“It’s great that Gov. Wolf agrees that the exclusions are wrong and should be eliminated,” said Thomas W. Ude Jr., legal and policy director at the Mazzoni Center in Philadelphia. The Mazzoni Center provides health and wellness care, in addition to legal assistance, to Philadelphia’s LGBTQ population.

“The only question is what his approach would be to actually make that happen,” he said in an interview with Rewire.

Eliminating exclusionary policies would, in no small measure, open the door to fundamental health care for transgender people and save the states money. But that’s only one piece of the puzzle regarding “health-care delivery all-in-all,” said Carroll. The other: ensuring physicians actually treat transgender patients.

Carroll says she’s fortunate to not have faced many barriers to care. But she acknowledges she’s the exception and not the rule; more often, transgender people are denied treatment for something as common as walking pneumonia on the basis of their gender identity alone. And in many states, including Pennsylvania, there is no law broadly protecting the transgender population from discrimination in health care, employment, or public life. (Despite bipartisan support, the so-called PA Fairness Act has languished in a Republican-controlled general assembly that’s had trouble even passing its budget bill, said Carroll.)

“Right now we’re almost captive to these individual physicians whether or not they’ll even agree to treat somebody,” she said.

In a way, John Doe’s case is bigger than itself. While the complaint addresses a specific systemic barrier, it also underscores the discrimination transgender people face in health care across the board. Whether it’s hormone therapy or a yearly physical, advocates say, transgender people should have uninhibited access to care, period.

“Medicine is medicine,” said Carroll.

Commentary Abortion

How to Transform Future Health-Care Providers Into Abortion Rights Advocates

Michalina Drejza & Cecilia Espinoza

Medical students’ limited opportunities to train in abortion procedures are a major barrier to care. But as bad as the situation is in the United States for medical students, it’s actually much worse in many international settings—including our own home countries.

Medical students’ limited opportunities to train in abortion procedures are a major barrier to care in the United States. Many schools intentionally choose not to include abortion in the curriculum or only offer “opt-in” training. A national survey of medical schools in 2005 found that only 32 percent offered at least one abortion-related lecture during students’ third-year OB-GYN rotation, and only half of schools offered a fourth-year reproductive health elective that covered family planning and abortion.

Such restricted opportunities for abortion training are, of course, a result of institutionalized stigma, often forcing interested medical students to go above and beyond their school’s curriculum to learn abortion care clinical skills and reinforcing the shame surrounding this simple and common medical procedure.

But as bad as the situation is in the United States for medical students, it’s actually much worse in many international settings—including our own home countries. Michalina is in medical school in Poland, where abortion is not typically included in any OB-GYN class curricula. In fact, Poland’s government attempted to pass a total abortion ban just last year. Polish health-care providers who do manage to obtain training and offer safe abortions do so with great discretion; they risk being ostracized socially and professionally. And in Nicaragua, where Cecilia lived and worked until moving to the United States four years ago, a complete ban on abortion means medical schools offer zero training in this often lifesaving care.

Thanks to these kinds of policies, we have found that many medical students—from all parts of the globe—are in the dark about the fact that the procedure, when done safely and legally, has minimal risk of complications. Medical students without abortion training or knowledge go on to become doctors who cannot and will not perform the procedure, even in countries where it’s legal. Having internalized the stigma around abortion themselves, these doctors may refuse mid-career training on the procedure even if their community has a clear need for the service, and they may judge, scorn and turn away patients who seek safe abortions at health clinics—in turn giving people no other option than to seek unsafe, clandestine procedures.

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That’s why the International Federation of Medical Students’ Associations (IFMSA), one of the world’s oldest and largest student-run organizations, has partnered with Ipas, a global NGO dedicated to ending deaths and injuries from unsafe abortion, to develop a training for future health professionals on the importance of safe abortion access.

Our work together began in 2010 with a collaboration between Ipas Nigeria and the Nigerian Medical Students’ Association, which then evolved into a global-level partnership. IFMSA engages a network of more than one million medical students from 115 countries, and a total of approximately 4,000 students attend annual regional meetings held around the globe. To capitalize on the organization’s vast reach, together we created a training guide that IFMSA student leaders use at their regional meetings to offer a crash course on the public health issue of unsafe abortion and how health-care providers can be advocates for abortion access—regardless of whether they ever provide the service or where they work in the health system. Trainings began in 2013 at a regional meeting in Ethiopia, and Michalina, as a leader with IFMSA’s committee on sexual and reproductive health issues, has now helped facilitate six of these trainings in various regions.

Rather than offer clinical abortion skills training, we recognized that what many medical students need first is an opportunity to talk openly about the myths, misconceptions, and biases about abortion they’ve inherited from their respective cultures. Training participants explore how unsafe abortion affects women and societies and how practicing health professionals can reduce the many barriers to abortion care that patients face. A section of the training also demystifies clinical aspects of abortion care with an overview of safe procedure methods and the importance of patient-centered care. Finally, students learn strategies for advancing abortion rights and access, and practice skills like advocacy and peer education.

You can’t expect a roomful of strangers to instantly feel comfortable discussing such a stigmatized topic, so our training involves many participatory activities that allow students to clarify their own values and beliefs related to abortion and to challenge themselves by considering a variety of others’ perspectives—including those of fellow training participants, as well as people seeking abortions, their families, and the health professionals who provide them. One popular activity asks students to brainstorm all the many reasons why a person may want or need an abortion and then to discuss which reasons society deems more acceptable. The activity sparks conversations about differing cultural beliefs and the subconscious biases we all carry.

The “ah-ha!” moments that occur at these trainings are pretty remarkable. Students from the United States, carrying the burden of their country’s uniquely toxic political climate around abortion, are frequently shocked to discover the wide array of other students’ experiences. For example, students from Western Europe will note that immigrants in their countries struggle to access safe abortions due to factors like immigration status, language barriers, and lack of information, even though the procedure is legal and not highly stigmatized. Meanwhile students from some African nations all know of at least one woman whose life was claimed by unsafe, clandestine abortion—often obtained illegally.

Students are also regularly surprised to learn about the abortion laws in their own countries. Many simply assume tight legal restrictions on the procedure because of the way medical schools and health systems avoid the topic as if it’s forbidden. A group of students from Tunisia, for example, were shocked to learn in early 2015 that their country’s abortion law is quite progressive—and outraged that they had been uninformed. After participating in our training, they started a project to educate other Tunisian medical students about the abortion law and other policies that advance reproductive health and rights.

Perhaps the most rewarding part of these trainings—and we’ve seen it again and again—is when students begin our workshop staunchly opposed to abortion and leave committed to abortion rights advocacy and excited to educate their peers at home on the topic. We’ve been careful not to impose a particular view on abortion in the exercises that comprise our training, and we hear routinely from students that they didn’t feel pushed to adopt a particular outlook. Rather, they feel grateful for the opportunity to have open, honest dialogue—often for the first time. This dialogue, they say, allows them to dispel myths and better understand what their role might be in supporting access to safe, legal abortion in the future.

The first step to ending abortion stigma is education—and making people conscious of the problem. IFMSA regional meetings for the 2015-16 academic year kicked off in Rwanda in December, where we trained 13 medical students from across Africa. In January, we trained 42 students at the Americas regional meeting in Uruguay, and another ten students at the Eastern Mediterranean regional meeting in Jordan. We expect similarly robust and stimulating conversations in the trainings to come this spring. And we hope that region by region, year after year, we are laying the groundwork on a global scale for more pro-choice health systems with providers who advance, rather than restrict, women’s sexual and reproductive health and rights.