Analysis Law and Policy

Pennsylvania Governor Poised to Sign Bill That Would Push Women to Purchase Non-Existent ‘Abortion Riders’

Tara Murtha

HB 818 would prohibit private insurance companies that plan to sell health-care plans through the forthcoming state health insurance exchange from covering abortion. Legislators say women would be able to purchase abortion-specific riders—but such riders do not appear to exist.

As we saw with 2011’s targeted regulation of abortion providers (TRAP) bill, the Republican-dominated Pennsylvania legislature routinely ignores protests from medical associations and professionals in passing bad-faith bills that politicize and endanger women’s health.

Now, Republican Gov. Tom Corbett, already suffering low approval ratings in large part because of a significant gender gap, is poised to sign HB 818. The bill intrudes on the free market by prohibiting private insurance companies that plan to sell health-care plans through Pennsylvania’s forthcoming state health insurance exchange from covering abortion, even in cases of medical emergency, health of the mother, and severe fetal anomaly.

Even more troubling, lawmakers supporting HB 818 are attempting to deceive the public by offering a non-solution: allowing Pennsylvania women to purchase abortion-specific riders from private companies not participating in the exchange.

The problem is that such abortion riders do not appear to exist.

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HB 818

Even though the state exchange, established by the Affordable Care Act (ACA), won’t be set up until next year, Pennsylvania lawmakers have been working on versions of the bill since Corbett’s first week in office back in 2011.

The bill’s sponsor, state Rep. Donna Oberlander (R-Clarion/Armstrong), insists HB 818 simply underscores existing policy that already prohibits tax dollars from funding abortion. There’s no reason for the “small government” party to propose redundant legislation—except, of course, as cover for something else.

HB 818 doesn’t address tax dollars, which are indeed not allowed to be used to fund abortions (except in cases of rape, incest, and endangerment to the life of the mother) under the Hyde Amendment, Pennsylvania state law, and terms set within the ACA. What it will do is require businesses participating in the health-care exchange to offer sub-standard insurance plans to women—which, in turn, means the hundreds of thousands of Pennsylvania women expected to purchase coverage through the exchange won’t be able to spend their own money to purchase industry-standard medical care through the exchange.

No Health Exceptions

Tinkering with the free market in order to bully insurance companies into economically hijacking working women’s constitutional right to abort an unwanted pregnancy is bad enough, but HB 818 goes even further, restricting physician-advised terminations of wanted pregnancies complicated by unexpected disease or accident.

Pennsylvania lawmakers explicitly rejected an amendment to add health of the woman as an exception to the narrow restrictions, which only allow abortion coverage “where necessary to avert the death of the woman” and in cases of incest and rape, providing the rape victim already reported the assault to the authorities. (The fact that many victims often don’t report aside, protocol of communication between police, insurers, doctors, and patients is unclear.)

When lawmakers voted against a medical emergency amendment offered by state Sen. Judy Schwank (D-Berks), they voted against insurers covering the expense of medically advised terminations in cases when a pregnant woman faces, for example, a cancer diagnosis, diabetes, a car accident, or discovers a severe fetal anomaly.

“Let’s say a woman was pregnant [and] her water broke prematurely and the baby would not survive. She would not be able to get an abortion,” Sen. Schwank told Rewire. At least, not without paying out-of-pocket for the procedure, which could cost tens of thousands of dollars.

“These are already tragic situations,” said Schwank. “These are babies that are wanted, and to have to add this anguish on to the situation. … I can’t understand why we couldn’t get this through.”

“Certainly I understand that there are extenuating circumstances,” Oberlander said in a PCN interview defending the bill. “However, [a health exception is a] loophole wide enough you can ride a semi truck through. Women experience a lot of different issues and side effects from a pregnancy.”

Seemingly frustrated with questions about the bill, Oberlander added, “It’s not rocket science.” Well, it’s not medical science, either; it’s religion-based health care influenced by special interests. Specifically, the Pennsylvania Catholic Conference, the public affairs arm of Pennsylvania’s Catholic bishops, and the Catholic dioceses of Pennsylvania lobbied hard for HB 818 and against the health amendment.

“I hear it in my colleagues,” state Sen. Vincent Hughes (D-Philadelphia/Montgomery), who has spoken out against the bill, told Rewire, “the frustration that they continue to get [calls from the Catholic Conference], especially since the Affordable Care Act took care of everything in terms of public funding. No matter where it comes from, no public funding can be utilized for abortion.”

Two Democrats, state Sens. Tim Solobay of Canonsburg and Richard Kasunic of Fayette and Somerset, voted against the health amendment, which lost by two votes.

Rep. Oberlander also insists the bill is “consistent with the will of the people.” But 2011 polling conducted by Susquehanna Polling & Research reveals otherwise. When asked whether or not they support insurance companies participating in the exchange covering abortion “to protect the health of the woman,” 79 percent of respondents said yes.

What Abortion Riders?

To compensate for the sub-standard care they’ve mandated with HB 818, lawmakers say that Pennsylvania women will be able to purchase abortion-specific riders from private companies not participating in the exchange.

“If someone wanted to buy abortion coverage, they could do that through a rider in a separate company,” said Oberlander in the same interview.

From the bill:

Nothing in this section shall prohibit an individual from purchasing optional supplemental abortion coverage provided the individual pays a separate premium for the coverage outside of the health insurance exchange.

Forget, for now, the logical absurdity of women purchasing abortion-specific insurance for an unplanned pregnancy. Given the lack of a health exception, it’d be prudent for women planning a pregnancy to purchase the rider, so they would not have to pay tens of thousands of dollars out-of-pocket in the event an unforeseen illness or complication.

So how much would an abortion-specific rider cost?

“It seems these riders don’t exist,” said Elizabeth Nash, state issues manager at the Guttmacher Institute. “Most of these states that have some kind of restriction on private health plans allow for these riders, but there’s no evidence they exist.”

“That suggestion by the proponents was a joke,” echoed Andy Hoover, legislative director of the American Civil Liberties Union of Pennsylvania. “That type of abortion-specific policy doesn’t exist, and the suggestion that it will come into existence once the exchange starts is ludicrous.”

“It doesn’t exist,” confirmed Sen. Schwank, who offered the defeated health amendment. “My staff made some calls to insurers, and realized that it’s not something that is available.”

With HB 818, Pennsylvania is trying to legislate the gender discrimination that the ACA was drafted in part to eradicate back into state law. Pennsylvania, after all, is one of the 37 states that currently allows gender rating, which means charging women more than men for identical coverage.

It’s no oversight. The same language—and fake solution to the problem of their own making—was in the version of HB 818 drafted back in 2011.

News Abortion

Pennsylvania’s TRAP Law Could Be the Next to Go Down

Teddy Wilson

The Democrats' bill would repeal language from a measure that targets abortion clinics, forcing them to meet the standards of ambulatory surgical facilities.

A Pennsylvania lawmaker on Wednesday introduced a bill that would repeal a state law requiring abortion clinics to meet the standards of ambulatory surgical facilities (ASF). The bill comes in response to the U.S. Supreme Court’s ruling striking down a similar provision in Texas’ anti-choice omnibus law known as HB 2.

A similar so-called targeted regulation of abortion providers (TRAP) law was passed in Pennsylvania in 2011 with bipartisan majorities in both the house and state senate, and was signed into law by former Gov. Tom Corbett (R).

SB 1350, sponsored by Sen. Daylin Leach (D-Montgomery) would repeal language from Act 122 that requires abortion clinics to meet ASF regulations. The text of the bill has not yet been posted on the state’s legislative website.

The bill is co-sponsored by state Sens. Art Haywood (D-Philadelphia), Larry Farnese (D-Philadelphia), and Judy Schwank (D-Berks).

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Leach said in a statement that there has been a “nationwide attack on patients and their doctors,” but that the Supreme Court’s ruling upholds the constitutionally protected right to terminate a pregnancy.

“Abortion is a legal, Constitutionally-protected right that should be available to all women,” Leach said. “Every member of the Pennsylvania General Assembly swore an oath to support, obey and defend the Constitution of the United States, so we must act swiftly to repeal this unconstitutional requirement.”

TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to medical clinics, have been passed in several states in recent years.

However, the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt that struck down two of the provisions in HB 2 has already had ramifications on similar laws passed in other states with GOP-held legislatures.

The Supreme Court blocked similar anti-choice laws in Wisconsin and Mississippi, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.

Commentary Politics

Pennsylvania Lawmakers Square Off Over Abortion Law, New Bill

Tara Murtha

Anti-choice legislators in Pennsylvania recently pulled out all the stops when debating a bill that would be one of the nation's harshest abortion laws if passed. But in the wake of a recent Supreme Court ruling, other state lawmakers are trying to stop that bill and change existing policy.

With the new U.S. Supreme Court abortion ruling, some Pennsylvania lawmakers want to roll back provisions similar to those struck down in Texas—and to head off any new restrictions in a bill debated on the house floor in late June.

Several legislators have called for repeal of Act 122, which was enacted in 2012 and mandates that Pennsylvania abortion clinics meet the standards of ambulatory surgical centers.

The U.S. Supreme Court struck down Texas’ ambulatory surgical center provision in the 5-3 Whole Woman’s Health v. Hellerstedt decision. Justice Stephen Breyer concluded in the opinion that the provision represented a “substantial obstacle in the path of women seeking a previability abortion” and was unconstitutional.

Soon after the decision, Sen. Daylin Leach (D-Montgomery/Delaware), a member of the bipartisan Women’s Health Caucus of the Pennsylvania legislature, wrote a memo recommending repeal of Act 122. And at a June 30 press conference organized by the caucus, Rep. Steven Santarsiero (D-Bucks) introduced legislation to do just that. He weighed in on another bill, HB 1948, discussed in the house on June 21.

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During that debate, “[anti-choice lawmakers] were exposed, they were unmasked,” Rep. Santarsiero said. “They stood one person after another after another in support of [HB 1948], and they came right out and said this is all about the anti-choice movement. They were exposed. They tried 20 years ago to claim it was not about that, but they’re not making any pretense at this point.”

Like Act 122, HB 1948 is an urgent matter. Anti-choice lawmaker Rep. Kathy Rapp (R-Warren) introduced the latter legislation in April, which would be one of the most severe laws in the country if enacted. HB 1948 would ban abortion beginning at 20 weeksIt also includes a “method ban” provision, which would criminalize dilation and evacuation (D and E), often used after miscarriages and for abortions earlier than 20 weeks.

Currently, HB 1948 is still on the schedule of the Pennsylvania Senate Judiciary committee. Though the senate may reconvene this summer, it’s unclear when or whether HB 1948 will move forward.

But advocates must not lose sight of this bill. 

A ‘Dangerous Precedent’

HB 1948 inserts the legislature into the doctor-patient relationship, forcing medical professionals, ordinary Pennsylvanians, and even some legislators out of the process. In April, lawmakers twice rejected requests for input on HB 1948 from both medical professionals and the public. When Rep. Dan Frankel (D-Allegheny) spoke out against the bill, his microphone was reportedly cut off.

Struggling to be heard, doctors and relevant medical associations sent open letters and wrote op-eds against the bill. “We are highly concerned that the bill sets a dangerous precedent by legislating specific treatment protocols,” wrote Scott E. Shapiro, president of the Pennsylvania Medical Society, in an April letter sent to legislators.

They are right to be concerned. Around the country, lawmakers with no medical training frequently propose method bans to criminalize the safest, medically proven procedures. They then threaten to imprison doctors if they don’t provide less-than-optimal care for their patients. This kind of legislative coercion brings to mind Donald Trump’s March statement that women who seek abortion should suffer “some form of punishment” for having an abortion.

Punishment, indeed. Under HB 1948, the punishment can go one of two ways: Either women receive less-than-optimal care, or doctors must be incarcerated. While considering the potential fiscal impact of HB 1948, lawmakers discussed how much it would cost to imprison doctors: $35,000 a year, the annual expense to care for an inmate in Pennsylvania.

My colleagues here at the Women’s Law Project, who co-authored a brief cited by Justice Ruth Bader Ginsburg in her Whole Woman’s Health v. Hellerstedt concurrence, have sent an open letter to senate leadership asking them to remove HB 1948 from further consideration.

The letter said:

If enacted, HB 1948 would inflict even greater harm on the health of Pennsylvania women than House Bill 2 would have inflicted on Texas women. Relevant medical experts such as the Pennsylvania section of the American Congress of Obstetricians and Gynecologists (ACOG) and the Pennsylvania Medical Society strongly oppose this bill.

Under well-established constitutional standards, HB 1948 is quite clearly unconstitutional.

The Strange Debate About HB 1948

For a while, HB 1948 seemed to have stalled—like much business in the legislature. It took more than 270 days to finalize the 2015 budget—an impasse that forced dozens of nonprofit organizations serving rape survivors, domestic violence victims, hungry children, and the elderly to lay off workers and turn away clients.

But in April, Pennsylvania lawmakers whisked HB 1948 to the floor within 24 hours. Then, on June 21, the bill suddenly sailed through the appropriations committee and was rushed to the house floor for third consideration.

HB 1948 passed the house after the kind of bizarre, cringe-worthy debate that makes “Pennsylvania House of Representatives” feel like an insult to the good people of the state. Surely, Pennsylvanians can represent themselves better than elected officials who want to punish abortion providers, liken abortions to leeches, ignore science, and compare abortion regulations to laws restricting pigeon shooting. Surely, they can do better than the legislators who hosted the June 21 farce of a debate about a bill designed to force women to carry unviable pregnancies to term.

At that debate, primary sponsor Rep. Rapp stood for questions about HB 1948. But when Rep. Leanne Krueger-Braneky (D-Delaware County) began the debate by asking Rapp about what doctors, if any, were consulted during the drafting of the bill, Speaker of the House Mike Turzai (R-Allegheny) halted proceedings to consider if such a question is permissible. Also a co-sponsor of the bill, he concluded it was not, offering the explanation that legislators can inquire about the content of the bill, but not its source or development.

Rapp eventually stated she had many meetings while drafting the bill, but refused to answer with whom. She invoked “legislator’s privilege” and insisted the meetings were “private.” Legislator’s privilege is an esoteric provision in the state constitution intended to protect the process from undue influence of lobbyists, not shield lobbyists from public inquiry.

The bill’s language—referring to D and E by the nonmedical term “dismemberment abortion”—echoes legislation promoted by the National Right to Life Committee (NRLC). The NRLC has also drafted boilerplate 20-week bans, along with Americans United for Life, an anti-choice organization and a leading architect of the incremental strategy for building barriers to access safe and legal reproductive health care.

Next, Rep. Madeleine Dean (D-Montgomery) asked Rapp if similar bills have been deemed unconstitutional in other states.

Indeed, they have. According to Elizabeth Nash, senior state issues advocate at the Guttmacher Institute, similar D and E bans have been blocked in Oklahoma and Kansas, and 20-week bans have been struck down in Arizona and Idaho. HB 1948 is one of the first pieces of legislation to combine both provisions into one bill; at the Women’s Law Project, we call it a “double abortion ban.”

But no one in the chambers would know that these anti-abortion restrictions have been obstructed because, once again, Speaker Turzai halted the proceedings over these questions. This time, he stopped the debate citing the house rule that lawmakers cannot ask a question if they already know, or the speaker suspects they know, the answer.

In any case, so it went. Pro-choice lawmakers of the Women’s Health Caucus of the Pennsylvania Legislature spoke out against the bill, reading letters from physicians and sharing tragic stories of family members who died after being denied abortion care during severe pregnancy complications.

When Rep. Rapp was asked if she knew that many severe fetal abnormalities were not diagnosed until or after the 20th week of pregnancy, she responded that many were not diagnosed until birth, which misses the point: HB 1948 is designed to deprive women who receive a diagnosis of a severe fetal anomaly, even unviable pregnancy, at 20 weeks or later of safe and legal abortion.

That’s alright with Rapp and others pushing HB 1948; the bill contains no exemptions for fetal anomalies or pregnancies that were a result of rape.

The bill’s supporters didn’t refute allegations that if passed into law, it would negatively affect health care. They argued their case by invoking metaphors instead. They compared abortion regulations to laws about pigeon shoots. They compared fetuses to bald eagles and abortion to leeches. A white male legislator, a description unfortunately almost synonymous with “Pennsylvania legislator,” compared abortion to slavery, drawing the ire of Rep. Jordan Harris (D-Philadelphia).

“We use slavery references when it benefits, but won’t do anything about the systems that negatively affect their descendants,” tweeted Rep. Harris.

Democratic Rep. Dan Frankel, co-chair of the Women’s Health Caucus, attempted to put the bill into context by noting the barrage of abortion restrictions passed in Pennsylvania already. In addition to the ambulatory surgical facility requirement, the state already has a ban prohibiting women from purchasing affordable health insurance that covers abortion through the exchange; an arbitrary 24-hour mandated waiting period; and a Medicaid ban that allows federal funding of abortions only in cases of rape, incest, or life endangerment.

The house voted 132-65 in favor of the bill, mostly among party lines, though 25 Democrats voted for it and nine Republicans voted against it. Gov. Wolf has promised he will veto it if passes, while HB 1948 proponents are working to gather enough votes for an override if necessary.