News Abortion

Michigan Ballot Initiative Could Ban Insurance Coverage of Abortion

Emily Crockett

Right to Life of Michigan’s “Abortion Insurance Opt-Out Act,” which would prevent both private and public health insurance plans from covering "elective" abortions, could pass with a simple legislative majority and no gubernatorial veto, despite a majority of state voters opposing it.

An anti-choice ballot initiative in Michigan could soon ban all insurance coverage of abortions, without the approval of either the governor or the majority of Michigan voters.

Right to Life of Michigan’s “Abortion Insurance Opt-Out Act” would prevent both private and public health insurance plans from covering “elective” abortions, and require women who want abortion coverage to purchase a separate rider. The initiative provides no exceptions for rape, incest, or fetal anomalies, and only allows exceptions for a woman’s health in the case of ectopic pregnancies or miscarriages, or “to avert her death.”

Gov. Rick Snyder vetoed a similar bill last year, saying it “just went too far.” But now Right to Life of Michigan is circumventing the normal lawmaking procedure using an uncommon process allowed under Michigan’s constitution. With the valid signatures of just 3 percent of the state’s population, the initiative can go directly to the heavily anti-choice legislature, pass with a simple majority vote, and be immune to a veto from Snyder. These kinds of legislative initiatives have only been successful four times in Michigan, and Right to Life was responsible for three of them.

Right to Life submitted 315,477 signatures, more than the 258,088 required to send the initiative to the legislature. A challenge period ended on Monday, and the state canvassing board is expected to approve the initiative on December 2. If the legislature doesn’t vote on the initiative within 40 session days, it will go before voters in November 2014.

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In effect, advocates say, women would be required to buy “rape insurance” under this initiative. “You couldn’t buy a rider once you were pregnant to have [an abortion] covered,” Meghan Groen, director of government relations for Planned Parenthood Advocates of Michigan, told Rewire. “It’s not like, oh, I was raped and so now I’ll buy this rider. Nobody is anticipating being a victim of crime.”

“We think this is an incredibly dangerous proposal, not only for the health of a woman, but also the risk that the health-care industry will have to undertake,” Shelli Weisberg, legislative director for American Civil Liberties Union of Michigan, told Rewire.

With such narrow health exceptions, Weisberg said, doctors and hospitals are in an impossible position: If insurers don’t agree the woman’s life was in danger, the hospital doesn’t get paid for its services. On the other hand, if a woman needs an abortion, doesn’t get it, and dies, the doctor and hospital would certainly face liabilities.

“There’s a lot of misinformation out there about what this actually does,” said Groen. “The name of Right to Life’s committee, ‘No Taxpayer Dollars for Abortion,’ is deceptive. … Right now it’s illegal in federal and state law for any taxpayer dollars to go toward abortion.”

Right to Life is deceiving voters into thinking that the Affordable Care Act will change this status quo, Groen added, but federal subsidy dollars won’t be able to pay for abortion coverage on the exchanges. In practice, the initiative has no effect on how tax dollars are spent, but instead prevents private insurers and private companies from deciding whether to provide abortion coverage. Most private Michigan insurers currently cover abortion.

Forcing women to purchase an additional insurance rider for abortion coverage is not a realistic option, Weisberg said. There’s no guarantee that an insurance company or an employer will provide a rider; it’s complicated and expensive because the risk pool is small, and it’s not something that women are likely to think about buying extra insurance for.

A majority of Michigan voters oppose the initiative, which Groen hopes will help convince key legislators that a yes vote would be politically dangerous. Even polling in anti-choice Republican districts revealed that about 50 percent of voters are opposed to the measure, Groen said.

Former Gov. John Engler vetoed similar legislation in 2000, making Snyder the second Republican governor in the state to veto legislation along these lines.

“We’ve had two Republican governors veto this. From a market standpoint, their attitude is, we shouldn’t tell companies what they can and can’t cover for their workers,” Weisberg said.

But she said the state legislature is thinking differently: “This is a very Republican, very right-wing Michigan legislature interfering in the marketplace in ways they previously would scream and yell about.”

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

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In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

News Abortion

Washington Judge: Public Hospitals Must Offer Abortion Care

Nicole Knight Shine

Passed by voter initiative in 1991, the Reproductive Privacy Act says, "The state shall not deny or interfere with a woman's fundamental right to choose or refuse to have an abortion," and that a public hospital may not discriminate against that right.

Public hospitals in Washington state must offer abortion care if they also provide maternity services, a state superior court judge ruled Tuesday.

Judge Raquel Montoya-Lewis found that the Skagit Valley Hospital violated the state Reproductive Privacy Act (RPA) by failing to employ staff to perform abortions, and instead referred patients to a Planned Parenthood clinic roughly 29 miles away.

Passed by voter initiative in 1991, the RPA says, “The state shall not deny or interfere with a woman’s fundamental right to choose or refuse to have an abortion,” and that a public hospital may not discriminate against that right. The law does not apply to private medical facilities and individuals.

Skagit Valley Hospital, located in northwest Washington and part of the third-largest public district hospital in the state, is licensed for 137 beds, and offers maternity, emergency, cancer, and cardiac care, among other services. In a lawsuit filed in Skagit County Superior Court last year, Kevan Coffey, a licensed nurse practitioner who lives in Skagit County, charged the public hospital with breaking the law by referring patients who seek abortion care to Planned Parenthood.

In the complaint, Coffey said she was “unable to carry a pregnancy to term without facing severe, life-birth defects,” noting, “I personally want to have all options, including abortion, available to me.”

The hospital, however, contended in court documents that it couldn’t find staff to perform abortions.

The judge didn’t buy it, writing in her decision, “In effect, the Hospital District shrugs its shoulders and informs patients that they will have to find that aspect of their healthcare elsewhere.”

Judge Montoya-Lewis continued, “Compliance with the RPA is not aspirational; it is mandatory.”

Tom Ahearne, an attorney for Skagit Valley Hospital, said the hospital board would be meeting Thursday and has not yet decided whether to appeal, as the Stranger reported.

Chris Charbonneau, CEO of Planned Parenthood of the Great Northwest and the Hawaiian Islands, told Rewire that the hospital’s practice of referring patients to a Planned Parenthood clinic in Bellingham, Washington, imposed a hardship on patients. She said that about one-third of those seeking abortion care in the state have to drive through two or more counties.

“Hospitals that accept public funding ought to live by the laws of the state that they’re in,” Charbonneau said in a phone interview Wednesday. “When the people of Washington voted for this, they were serious. You don’t just get to ignore the law.”

Washington state and California are among the few states with a Reproductive Privacy Act to guarantee an individual’s right to end a pregnancy.

In a statement issued after the decision, representatives from the American Civil Liberties Union (ACLU) of Washington, which brought the lawsuit on Coffey’s behalf, called the decision “a huge victory.”

“We hope this ruling makes the promise of the state’s Reproductive Privacy Act a reality for all women across Washington state,” Kathleen Taylor, executive director of the ACLU of Washington, said.

Coffey said in a statement that she was “pleased that the court has affirmed the right of women to have access to the full range of reproductive health care services.”

Ahearne, who represents the hospital, told the Stranger that hospital leaders “feel stuck between a rock and a hard place,” concerned about breaking the law by requiring doctors to perform abortions.

The hospital had argued that it “cannot affirmatively seek to hire [abortion] providers … nor can it require them to do so.”

But the judge countered that the provision in the RPA that carves out exceptions for those who don’t wish to offer abortion care applies to individuals and private medical facilities, not public hospitals.