Iowa's anti-choice Republican governor announced Friday that he expects to sign the state's budget into law, including a new rule that will give him complete control over federal Medicaid funding for the roughly two dozen Medicaid-eligible abortions that are performed in the state each year.
Iowa Gov. Terry Branstad announced Friday that he expects to sign the state’s budget into law, including a new rule that will allow him to decide on a case-by-case basis whether Medicaid funds will be used to reimburse for abortion services when pregnancies are the result of rape or incest, when there are fetal abnormalities, or to protect the life of the woman.
The rule will give the anti-choice Republican governor complete control over federal Medicaid funding for the roughly two dozen Medicaid-eligible abortions that are performed in the state each year. It could also make many providers unwilling to offer abortions in cases that should be covered, because they won’t know if Medicaid reimbursement will occur.
As Rewire reported in May, restricting access to safe abortion care for Medicaid patients has been a multi-year debate in the Iowa legislature, with anti-choice legislators repeatedly proposing bills or amendments, and even a direct query to the governor, in an attempt to deny reimbursement for almost all abortions that are eligible for Medicaid funding. This new tactic of allowing the governor to approve each case allegedly came about as a compromise between warring factions anxious to get final budget approval. However, it offers the potential for abortion opponents to get the all-out ban they wanted—Gov. Branstad’s could refuse to allow Medicaid reimbursements, or the lack of clarity regarding what he will and will not approve could make doctors afraid to offer services to begin with.
Branstad appears to have no desire to address that lack of clarity. When asked during an appearance on Iowa Public Television how he would approach the new protocol, he touted his opposition to abortion in all instances, though he admitted he would need to consider whether the funding rules apply. “As I understand it, the decision is not whether there’s an abortion or not, the decision is whether the state is going to approve funding, which is a decision that is made after the fact,” said Branstad, according to the Sioux City Journal. “So I’m not really going to have any say in whether this procedure occurs or not—I would discourage it wherever possible—but then I’ll have to make a decision whether or not it’s appropriate under the circumstances and under the guidelines that we have.”
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It remains unclear what those “guidelines” are. Under the federal Hyde Amendment, all abortions performed in cases of rape, incest, or health of the pregnant person should be covered—though how those rules play out in practice leaves much to be desired. Iowa has traditionally also included cases of fetal anomaly, and for this year at least, those have been the majority of the abortions in question. As the Journal reports, there have been nine Medicaid abortion payment requests this year, of which eight were for medical issues with the fetus. Under Iowa’s traditional rules, all such procedures should be reimbursed, and under Hyde only one of them should be. Without specifically saying which “guidelines” he would consider, Branstad leaves most of this fiscal year’s cases in legal limbo.
Even more problematic than those ambiguities, and putting so much power over people’s reproductive decisions into one person’s hands, is the reinforcement of the idea that there are “worthy” and “unworthy” abortions—putting a value judgement on when it is appropriate to allow a person access to have an abortion. If and when Branstad does make his guidelines clear (which he would likely do out of fear that a denial in payment for a sexual assault case could put the state’s full Medicaid funding in jeopardy, not because of concern for reproductive rights), those value statements would get passed on to the public.
“This law seems to harken back to those days [when] outsiders get to determine if a woman’s reason for an abortion fits their prescribed list of ‘good enough’ reasons,” reproductive justice activist Steph Herold told Rewire. Herold, who has focused much of her work recently on helping to reduce stigma surrounding abortion, noted that the governor’s new role isn’t unlike that of the original “hospital approved” abortion panels women often had to endure prior to legal abortion, where the pregnant patient would be required to prove herself worthy of needing the procedure.
“Medicaid should cover abortion. Period,” said Herold. “No one should have to be subject to a politician’s review to determine if their abortion warrants coverage. Iowa falls under the Hyde Amendment, meaning that Medicaid can only cover abortion in the case of rape, incest, or life threat. This is already unjust. Now the governor wants to make Hyde even more cruel by asking survivors of rape, incest, and medical emergencies to let him decide if their circumstances merit insurance coverage? What a callous law. It perpetuates the idea that some abortions are more deserving of insurance coverage than others, when really, all types of insurance—Medicaid and private health insurance—should cover abortion no matter the circumstance. No one should have to forgo rent to be able to access the health care they need.”
State legislatures came into session in January and quickly focused on a range of sexual and reproductive health and rights issues. By the end of the first quarter, legislators in 45 states had introduced 1,021 provisions. Of the 411 abortion restrictions that have been introduced so far this year, 17 have passed at least one chamber, and 21 have been enacted in five states (Florida, Indiana, Kentucky, South Dakota, and Utah).
This year’s legislative sessions are playing out on a crowded stage. The U.S. Supreme Court is considering a case involving a package of abortion restrictions in Texas; that decision, when handed down in June, could reshape the legal landscape for abortion at the state level. Moreover, just as state legislatures were hitting their stride in late March, the U.S. Food and Drug Administration revised the labeling for mifepristone, one of the two drugs used for medication abortion. That decision immediately put the issue back on the front burner by effectively counteracting policies restricting access to medication abortion in a handful of states. (Notably, the Arizona legislature moved within days to enact a measure limiting the impact of the FDA decision in the state.)
Progress on Several Fronts
Despite the ongoing attention to restricting abortion, legislators in several states are looking to expand access to sexual and reproductive health services and education. By the end of the first quarter, legislators in 32 states had introduced 214 proactive measures; of these, 16 passed at least one legislative body, and two have been enacted. (This is nearly the same amount introduced in the year 2015, when 233 provisions were introduced.)
Although the proactive measures introduced this year span a wide range of sexual and reproductive health and rights issues, three approaches have received particular legislative attention:
Allowing a 12-month contraceptive supply. Legislators in 16 states have introduced measures to allow pharmacists to dispense a year’s supply of contraceptives at one time; these bills would also require health plans to reimburse for a year’s supply provided at once. (In addition, a bill pending in Maryland would cover a six-month supply.) Legislative chambers in three states (Hawaii, New York, and Washington) have approved measures. Similar measures are in effect in Oregon and the District of Columbia.
Easing contraceptive access through pharmacies. Legislators in 12 states have introduced measures to allow pharmacists to prescribe and dispense hormonal contraceptives. As of March 31, bills have been approved by at least one legislative chamber in Hawaii and Iowa and enacted in Washington. The measures in Hawaii and Iowa would require pharmacist training, patient counseling, and coverage by insurance; the Hawaii measure would apply only to adults, while the Iowa measure would apply to both minors and adults. The new Washington law directs the state’s Pharmacy Quality Assurance Commission to develop a notice that will be displayed at a pharmacy that prescribes and dispenses self-administered hormonal contraception. Under current state law, a pharmacy may prescribe and dispense these contraceptives under a collaborative practice agreement with an authorized prescriber. Oregon has a similar measure in effect. (California, the only other state with such a law, issued regulations in early April.)
Expanding education on sexual coercion. Measures are pending in 17 states to incorporate education on dating violence or sexual assault into the sex or health education provided in the state. A bill has been approved by one legislative chamber in both New Hampshire and New York. The measure approved by the New Hampshire Senate would require age-appropriate education on child sexual abuse and healthy relationships for students from kindergarten through grade 12. The measure approved by the New York Senate would mandate education on child sexual abuse for students from kindergarten through grade 8. And finally, in March, Virginia enacted a comprehensive new law requiring medically accurate and age-appropriate education on dating violence, sexual assault, healthy relationships, and the importance of consensual sexual activity for students from kindergarten through grade 12. Virginia will join 21 other states that require instruction on healthy relationships.
Ongoing Assault on Access to Sexual and Reproductive Health Services
Even as many legislators are working to expand access to services, others are continuing their now years-long assault on sexual and reproductive health services and rights. Restricting access to abortion continues to garner significant attention. However, last year’s release of a series of deceptively edited sting videos targeting Planned Parenthood has swept both the family planning safety net and biomedical research involving fetal tissue into the fray.
Abortion bans. Legislative attempts to ban abortion fall along a broad continuum, from measures that seek to ban all or most abortions to those aimed at abortions performed after the first trimester of pregnancy or those performed for specific reasons.
Banning all or most abortions. Legislators in nine states have introduced measures to ban all or most abortions in the state, generally by either granting legal “personhood” to a fetus at the moment of conception or prohibiting abortions at or after six weeks of pregnancy. Only one of these measures, a bill in Oklahoma that would put performing an abortion outside the bounds of professional conduct by a physician, has been approved by a legislative chamber.
Banning D&E abortions. Legislators in 13 states have introduced measures to ban the most common technique used in second-trimester abortions. Of these, a bill in West Virginia was enacted in March over the veto of Gov. Earl Ray Tomblin (D). A similar measure was approved by both houses of the Mississippi legislature and is being considered by a conference committee. (Kansas and Oklahoma enacted similar laws last year, but enforcement of both has been blocked by court action.)
Banning abortion at 20 weeks post-fertilization. South Dakota and Utah both enacted measures seeking to block abortions at 20 weeks during the first quarter of the year. The new South Dakota law explicitly bans abortions at 20 weeks post-fertilization (which is equivalent to 22 weeks after the woman’s last menstrual period). The Utah measure requires the use of anesthesia for the fetus when an abortion is performed at or after that point, something that providers would be extremely unlikely to do because of the increased risk to the woman’s health. In addition to these new measures, 12 other states ban abortion at 20 weeks post-fertilization.
Banning abortion for specific reasons. In March, Indiana enacted a sweeping measure banning abortions performed because of gender, race, national origin, ancestry, or fetal anomaly; no other state has adopted such a broad measure. The Oklahoma House approved a measure to ban abortion in the case of a fetal genetic anomaly; the state already bans abortion for purposes of sex selection. Currently, seven states ban abortion for the purpose of gender selection, including one state that also bans abortion based on race selection and one that also bans abortion due to fetal genetic anomaly.
Family planning funding restrictions. In the wake of the Planned Parenthood videos, several states have sought to limit funding to family planning health centers that provide or refer for abortion or that are affiliated with abortion providers. These efforts are taking different forms across states.
Medicaid. Measures to exclude abortion providers (e.g., Planned Parenthood affiliates) from participating in Medicaid have been introduced in five states, despite the clear position of the federal Centers for Medicare and Medicaid Services that such exclusions are not permitted under federal law. In March, Florida Gov. Rick Scott (R) signed a Medicaid restriction into law. By the end of the first quarter, measures had passed one chamber of the legislature in Arizona, Mississippi, and Missouri; a measure introduced in Washington has not been considered. (A related measure enacted in Wisconsin in February limits reimbursement for contraceptive drugs for Medicaid recipients.)
Similar attempts by six other states have been blocked by court action since 2010. These measures include laws adopted by Indiana and Arizona as well as administrative actions taken in Alabama, Arkansas, Louisiana, and Texas.
Other family planning funds. Legislators in 13 states have introduced measures to prevent state or federal funds that flow through state agencies from being distributed to organizations that provide, counsel, or refer for abortions; the measures would also deny funds to any organization affiliated with an entity engaging in these activities. Measures in three of these states have received significant legislative attention. In February, Wisconsin enacted a measure directing the state to apply for Title X funds (the state is not currently a grantee under the program); if the state’s application were approved, the measure would ban this funding from going to organizations that engage in abortion care-related activity. A measure that would deny funds to organizations engaged in abortion care-related activity passed the Kentucky Senate in February. A similar measure in Virginia, which would both prohibit an abortion provider from receiving funding and give priority to public entities (such as health centers operated by health departments) in the allocation of state family planning funds was vetoed by Gov. Terry McAuliffe (D) in March.
Related funds. In February, Ohio Gov. John Kasich (R) signed a measure barring abortion providers or their affiliates from receiving federal funds passing through the state treasury to support breast and cervical cancer screening; sex education; and efforts to prevent infertility, HIV in minority communities, violence against women, and infant mortality.
Fetal tissue research. The Planned Parenthood videos have also led to legislation in 28 states aimed at research involving fetal tissue. Measures have passed one legislative chamber in four states (Alabama, Iowa, Idaho, and Kentucky), and new laws have been enacted in four states (Arizona, Florida, Indiana, and South Dakota) in the first quarter alone. All four laws ban the donation of fetal tissue for purposes of research. These new laws are the first to ever ban the donation of fetal tissue. The Arizona law also bans research using fetal tissue, and the new South Dakota law strengthens the state’s existing ban by now considering fetal tissue research as a felony; four other states (Indiana, North Dakota, Ohio and Oklahoma) have similar provisions in effect.
Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.
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 regulationsclarifying 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.
Furthermore, 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 LGBTQpopulation.
“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.