News Law and Policy

Virginia Bishops Use Medicaid Stalemate to Call for New Abortion Funding Restriction

Erin Matson

The bishops urge repealing a section in the Code of Virginia that provides state funding for abortions in the Medicaid program in the event of a gross and totally incapacitating physical deformity or mental deficiency in a fetus.

It’s a perfect storm for opponents of reproductive rights in Virginia: Democratic Gov. Terry McAuliffe has made Medicaid expansion his signature goal, house Republicans haven’t budged, and now the Virginia Catholic Conference says it supports expanding Medicaid—and that a new abortion funding restriction should be enacted.

In a statement issued Friday, four weeks into special session, the Diocese of Richmond Bishop Francis DiLorenzo and Diocese of Arlington Bishop Paul Loverde lent backhanded support to Medicaid expansion. “Our advocacy is informed by the Church’s teaching that, first, everyone has a right to life and second, that healthcare is a right,” they said.

The bishops urge repealing a section in the Code of Virginia that provides state funding for abortions in the Medicaid program in the event of a gross and totally incapacitating physical deformity or mental deficiency in a fetus.

Currently, Virginia Medicaid includes abortion coverage in four circumstances: life endangerment, rape, and incest is covered by federal Medicaid dollars; gross and totally incapacitating fetal impairment is covered by the commonwealth.

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In an interview with Rewire, NARAL Pro-Choice Virginia Executive Director Tarina Keene noted that the bishops’ statement argues for Medicaid expansion by expressing concern for the poor and vulnerable. Then, as she paraphrased it, it continued to say: “These pe ople, if they have a tragic pregnancy—screw them.” Keene said the commonwealth spent $13,058 to cover 14 abortions due to gross and totally incapacitating fetal impairment in 2013.

The bishops’ belated support for Medicaid expansion comes at a time when Virginia Democrats are grasping for negotiations. A special session began March 25 and Virginia Republicans have yet to relent on their opposition to Medicaid expansion. In response, hospitals have helped to lead the charge in lobbying them to soften their stance.

Joining this effort to lobby Republicans to expand Medicaid on behalf of the Virginia Hospital & Healthcare Association is Matt Cobb, a notable anti-choice official from the administration of former Gov. Bob McDonnell (R). In his capacity as a deputy health secretary, Cobb helped to lead the implementation and interpretation of an onerous clinic regulations law that has forced clinics to close. Cobb’s former boss Bill Hazel continues to serve as secretary of health under McAuliffe. These relationships, coupled with McAuliffe’s recent signing of a new conscience clause for genetic counselors into law, make the prospect of an abortion-related bargain not entirely out of the question.

As previously reported in Rewire, 400,000 low-income Virginians will gain access to health coverage if Medicaid is expanded. The senate budget includes a measure called “Marketplace Virginia” that would take advantage of the funding offered under the Affordable Care Act; the house budget does not. If a budget agreement is not reached by July 1 the government will shut down.

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.

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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.

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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

Abortion Providers Call for Closure of Troubled Virginia Abortion Clinic

Sharona Coutts

“Evidence of wrongdoing at Brigham’s American Women’s Services facility in Fairfax is part of a clear pattern of repeated and serious misconduct that poses a significant threat to patient safety, and which cannot be allowed to go unchecked in Virginia," said Vicki Saporta, president and CEO of the National Abortion Federation.

A group of pro-choice organizations, including the National Abortion Federation (NAF), on Tuesday called on the Virginia State Health Commissioner Dr. Marissa J. Levine to permanently close any abortion clinics in that state associated with the troubled abortion provider, Steven Chase Brigham.

The calls follow the release last week of a damning inspection report from Virginia’s Department of Health, based on a two-day survey of the American Women’s Services facility in Fairfax.

State inspectors found filthy and dangerous conditions in the clinic that posed a substantial risk to the safety of patients, staff, and visitors, according to Erik Bodin, the director of the Office of Licensure and Certification, which conducted the inspection.

Among the findings in the 52-page report were observations of dirty equipment, smeared with “foreign material” and yellow and brown “splatter” that had dried in place. Surveyors reported that a staff member went into a bathroom and unblocked a patient toilet, and then participated in an abortion procedure—even holding the patient’s hand—without first changing clothes or properly cleaning his or her hands.

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A doctor whose gown was smeared with blood after performing an abortion held up the gown and hung it on the back of the door for future use, saying of the soiling, “Oh, it’s not that bad.” Inspectors found expired medications and discovered that annual maintenance checks on key machinery had not been completed.

In her letter to Levine, Vicki Saporta, president and CEO of NAF, said that these findings were “just the latest assessment of Brigham, who has come under fire from state licensing boards and health departments throughout his career.”

“Evidence of wrongdoing at Brigham’s American Women’s Services facility in Fairfax is part of a clear pattern of repeated and serious misconduct that poses a significant threat to patient safety, and which cannot be allowed to go unchecked in Virginia,” Saporta wrote. “In an area of medical practice populated by highly qualified and professional providers, Steven Brigham is an egregious and dangerous exception. NAF urges the Department of Health to act swiftly to protect the health and safety of Virginia women by permanently closing Brigham’s clinics in the state.”

Brigham, in a phone interview with Rewire, rejected the notion that he was directly involved in the provision of abortion care services at the Fairfax clinic, claiming that he was neither an employee nor an owner of that clinic. Brigham said his only connection with the Fairfax location was in giving staff occasional advice.

He said that he hadn’t visited that clinic in at least three years, and that he derived no profit from that clinic. He characterized Saporta’s letter as an ad hominem attack.

Courtney Rice, a spokesperson for American Women’s Services, provided an email statement to Rewire in which she confirmed that Brigham is not a physician or employee in that office.

Rice said that the clinic was making efforts to comply with regulations and regain its license.

“We are disappointed that our Fairfax office temporarily fell below the high standards it has long adhered to and we are cooperating with the Department of Health to correct any deficiencies identified, starting with the termination of our Administrator,” she wrote.

Despite his claims to Rewire, various public records suggest that Brigham retains some formal connections to the Fairfax clinic, the legal name of which is Virginia Health Group.

Virginia’s State Corporation Commission lists Brigham as the registered agent for the company, and the Virginia Secretary of State’s site lists him as the company director. Yet his precise role with American Women’s Services remains murky; he did not directly answer Rewire’s questions as to exactly what he did with that company, or whether he holds any ownership or control.

Brigham’s role in connection with abortion clinics in multiple states has long been a subject of controversy among regulators and other abortion providers.

Over three decades, he has encountered frequent troubles with health department authorities in New York, New Jersey, Pennsylvania, and Maryland, among others, and has faced multiple allegations of substandard practice, including contributing to the serious injury of several patients.

New Jersey in 2014 revoked Brigham’s medical license in connection with multiple allegations of misconduct, including an incident that resulted in serious injuries to a patient who had been transported from New Jersey to Maryland for a surgical abortion.

Reputable abortion providers have spent years trying to bring Brigham and his clinics to the attention of regulators in the states in which he worked, as Rewire reported in 2013

Providers expressed frustration that despite disciplinary actions being brought against him, Brigham has been able to continue working in abortion care, either by practicing in different states or by taking a behind-the-scenes role in clinics that he controlled through American Women’s Services. With at least 14 clinics in multiple states, American Women’s Services remains among the country’s largest chains of abortion clinics.

Even if Brigham owns all or part of American Women’s Services, that would make little difference to the Fairfax clinic’s chances of regaining its license, Bodin said, because there is no requirement in Virginia that the owner or operator of a medical clinic possess a medical license. Rather, the health department must simply assess whether the clinic meets the standards set forth in regulations governing abortion clinics.

Bodin said that representatives of Virginia Health Group are scheduled to appear before an administrative law judge on May 11, where they will have an opportunity to show that they have fixed the many deficiencies cited in the inspection report.