News Abortion

Restrictions on Medicaid Abortion Coverage at Center of Alaska Trial

Jessica Mason Pieklo

Lawmakers in the state are trying to redefine "medically necessary" abortions covered by Medicaid. Advocates say that is unconstitutional.

A trial is underway in Alaska to determine if administrative attempts to drastically cut off abortion access for low-income people in the state violates the Alaska Constitution.

At issue is a 2013 regulation that advocates claim seeks to circumvent a 2001 decision by the Alaska Supreme Court ordering the state Medicaid program to cover all abortions determined by a physician to be medically necessary. That decision said the state’s Medicaid program must cover “those abortions … necessary … to ameliorate a condition harmful to the women’s physical or psychological health, as determined by the treating physician performing the abortions services in his or her professional judgment.”

But under the 2013 regulation at issue in Planned Parenthood’s lawsuit, for an abortion to be covered by Medicaid the physician performing the procedure must certify that an abortion is “medically necessary to avoid a threat of serious risk to the physical health of the woman from continuation of her pregnancy due to the impairment of a major bodily function.”

The physician must then check a box to explain the condition the woman has that meets this standard by choosing from a list of 21 identified conditions, or indicating that she either has “another physical disorder, physical injury, physical illness, including a physical condition arising from the pregnancy” or “a psychiatric disorder that places the woman in imminent danger of medical impairment of a major bodily function if an abortion is not performed.”

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Even if a patient qualifies under the 2013 definition of “medically necessary,” Medicaid is not guaranteed to cover the procedure.

Even with one of those identified conditions, Medicaid will only cover the cost of an abortion if a doctor attests that the abortion is “medically necessary to avoid a threat of serious risk to the physical health of the woman from continuation of her pregnancy due to the impairment of a major bodily function.”

No other provider in Alaska is required to submit a similar certificate.

Advocates argued in a lawsuit filed in January 2014 on behalf of Planned Parenthood of the Great Northwest that this new rule unconstitutionally precludes all but the most severely ill women from qualifying for coverage they are otherwise guaranteed.

Judge John Suddock in February 2014 blocked the regulation from taking effect and ordered a trial on Planned Parenthood’s claims.

Suddock is overseeing the trial, which is expected to last until next week.

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 Contraception

Funding Shortfall, Contraception Limits Mar GOP Zika Agreement

Christine Grimaldi

The Obama administration indicated that the latest House-passed Zika package is a non-starter for the president.

The $1.1 billion in Zika funding that Republicans railroaded through the U.S. House of Representatives around 3 a.m. Thursday underfunds the Obama administration’s request and limits access to contraceptive services, even though the disease can be sexually transmitted.

The largely party line 239-171 vote interrupted Democrats’ marathon, raucous sit-in demanding consideration of gun control proposals. House Speaker Paul Ryan (R-WI) called the House back into session shortly after 2:30 a.m. amid shouts of “No bill, no break!”

Rep. Jim McGovern (D-MA) attempted to request a final debate, otherwise known as a motion to recommit, on the conference report for Zika supplemental funding and fiscal year 2017 military construction and veterans affairs funding. The speaker pro tempore presiding over the House at the time instead spoke over McGovern and, in an unusual move, proceeded to a recorded vote without allowing debate on the measure, then adjourned the chamber early for its scheduled July 4 recess.

Congressional negotiators attempted to reconcile the differences between the House’s $622.1 million and the U.S. Senate’s $1.1 billion in Zika funding levels. Senate Appropriations Committee Vice Chair Barbara Mikulski (D-MD) in May called her chamber’s $1.1 billion “a bottom line, not a starting point for negotiations with the House.”

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Mikulski and other Democrats involved in the bicameral Zika negotiations ultimately refused to sign the final conference report (H. Rept. 114-640), slamming the Republican agreement for falling short of the $1.9 billion the Obama administration requested to combat Zika.

Democrats objected to the Zika package’s $750 million in offsets derived from leftover Ebola reserves, unspent Affordable Care Act funding for territories to establish health-care exchanges, and the U.S. Department of Health and Human Service’s administrative fund. “Offsetting emergency spending would set a precedent that will hinder our ability to respond to the next public health crisis, natural disaster, or national security event requiring emergency funding,” House Appropriations Committee Democrats, led by Rep. Nita Lowey (D-NY), said in a statement.

The latest stalemate comes as Zika infections are on the rise in the United States, according to Centers for Disease Control and Prevention (CDC) tracking. The CDC concluded that Zika causes microcephaly, an incurable neurological disorder that impairs brain and skull growth in utero, as well as other severe fetal brain defects.

Online requests for abortion medications have spiked in Latin American countries that issued warnings to pregnant people about Zika-related complications yet outlaw or restrict the procedure, according to a study published Wednesday in the New England Journal of Medicine.

Contraception Restrictions Anger Democrats

Democrats also decried language that they said would restrict access to contraceptive services for women in the United States and Puerto Rico.

Page 118 of the full conference report routes $95 million in Zika funds through the federal Social Services Block Grant program toward public health departments, hospitals, and Medicaid Managed Care clinics. This move “limits access to health care” in a sprawling territory with only 13 Medicaid Managed Care clinics, according to a Democratic summary obtained by Rewire.

“Of the 78 municipalities in Puerto Rico, only 12 include a Medicaid clinic. Twenty-six of the municipalities are not even adjacent to another municipality with a Medicaid clinic, and geographical conditions on the island (e.g., mountains) make travel between certain municipalities difficult,” the summary said. “For many women in Puerto Rico, this bill would make access to contraceptive services more difficult.”

The language also precludes awarding subgrants to outside groups “that could provide important services to hard-to-reach populations, especially hard-to-reach populations of women that want to access contraceptive services.”

Democrats alleged the Zika package takes similar restrictive actions on the international front.

“The Republican conference report does not explicitly prohibit funding for contraceptives or family planning activities in global health activities, but takes away the money, limits the use of funds, and forces USAID to rely on reprogramming which is a mechanism to slow the access to funds,” the summary said.

Specifically, Page 125 of the full conference report directs $145.5 million toward global health programs—nearly 60 percent below the administration’s request, according to the summary. The shortfall, along with a mandate to prioritize funds for mosquito control and vaccines, in effect leaves nothing for contraceptives or family planning programs to prevent sexual transmission of Zika.

Senate Minority Leader Harry Reid (D-NV) called the Republican agreement “more of the same anti-woman” tactics, including repeated votes to defund Planned Parenthood.

“Instead of responding to this emergency that is threatening American women, Republicans are using this awful virus as an excuse for another attack on women’s health,” Reid said on the Senate floor Thursday morning.

Response Indicates Rocky Path Forward

The Obama administration indicated that the latest House-passed Zika package is a non-starter for the president.

“This plan from Congressional Republicans is four months late and nearly a billion dollars short of what our public health experts have said is necessary to do everything possible to fight the Zika virus and steals funding from other health priorities,” White House Spokesperson Josh Earnest said in a statement.

“The fact that the Republican plan limits needed birth control services for women in the United States and Puerto Rico as we seek to stop the spread of a sexually transmitted disease is a clear indication they don’t take seriously the threat from the Zika virus or their responsibility to protect Americans.”

A Senate Democratic aide told Rewire it’s “extremely unlikely this gets through the Senate.”

Although the motion to proceed on the conference report will be privileged and not subject to debate, Republicans still need 60 votes for cloture to end debate on the underlying measure itself, the aide said.

“By preventing the funding from going to Planned Parenthood, suspending environmental safety regs, underfunding veterans, and making cuts from public health programs, Republicans have decided to go their own way and hold Zika funding hostage to their own extreme agenda,” the aide said.