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.
On June 28, just a day after the Supreme Court ruling, Texas published a revised draft of the pamphlet that must, by state law, be given to all people seeking abortion services. But the brochure still includes misleading information, reminding us that anti-choice politicians are still interfering in patient-provider interactions.
Reproductive health advocates cheered in March when the U.S. Food and Drug Administration (FDA) approved a revised label for abortion drug Mifeprex (mifepristone). We cheered again when the U.S. Supreme Court struck down central provisions of Texas law HB 2, which would have closed most of the state’s abortion clinics. Both of these were victories not just for access to abortion care, but also for health-care policies based on current evidence. However, on June 28, just a day after the Supreme Court ruling, Texas published a revised draft of the pamphlet that state law requires physicians to provide to all women seeking abortion services, reminding us that anti-choice politicians are still finding ways to interfere in patient-provider interactions.
Laws and regulatory actions of this kind, which require the use of biased and incomplete information, prevent health-care professionals from providing women with care that meets basic medical and ethical standards.
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State requirements that are at odds with up-to-date scientific or medical research are nothing new. Several states have passed laws requiring abortion providers to follow the FDA-approved label for Mifeprex. Those laws are currently in force in North Dakota, Ohio, and Texas, and have been halted by courts in Arizona, Arkansas, and Oklahoma. Before March, this meant that providers in those states had to follow the original Mifeprex label, which was based on clinical trials conducted in the 1980s and 1990s, and which didn’t encompass variations in practice used for years to make medication abortions safer and more accessible. These included lowering the dose of mifepristone from 600 mg to 200 mg; offering medication abortions for pregnancies of up to 70 days, rather than only through 49 days; and allowing the woman to take the second drug in the procedure (misoprostol) at home rather than requiring her to return to a provider’s office to swallow a pill. (For more on current science about medication abortion, see our white paper.) The new label reflects those changes and makes it easier for providers everywhere to offer evidence-based care.
Normally, providers’ use of approved drugs evolves as the evidence does. This is important because experience and research can show that it’s safe and effective to use drugs in different doses or for different conditions than what the label specifies. Providers can adopt these variations without waiting for a new label to be approved by the FDA by prescribing a drug off-label. For instance, the asthma medication albuterol (found in inhalers) is often prescribed off-label for chronic obstructive pulmonary disease due to substantial evidence supporting this off-label use. Drug manufacturers may apply to FDA for an updated label (particularly when insurers won’t cover drugs for off-label conditions), but they don’t have to do so.
However, a new Mifeprex label was important because some states were requiring abortion providers to adhere to the outdated label—in essence, telling providers that their practice could not evolve based on evidence, and denying women access to the care that’s been demonstrated to be safe and effective.
Much like laws requiring medication abortion providers to adhere to an outdated label, so-called informed consent laws requiring that a woman receive certain information before getting an abortion essentially substitutes the judgment of legislators for the judgment of health-care providers. In states like Texas, where a majority of the legislators are committed to a political agenda blocking access to abortion, this all too frequently means replacing scientific evidence with intentionally distorted information. When the Rutgers University Informed Consent Project asked anatomists specializing in embryological and fetal development to evaluate statements in the previously available version of Texas’s required pamphlet, they determined that 34 percent of the statements were either scientifically incorrect or misleading. (Preliminary findings on the revised draft suggest the accuracy hasn’t improved, project head Cynthia Daniels told the Texas Tribune.) True informed consent is a necessary and ethically valuable part of any medical process, but these types of laws subvert the true intent of consent when they require providers to give inaccurate or incomplete information under the guise of improving transparency.
Also problematic is what the revised Texas pamphlet still doesn’t say. The section on abortion risks reports the extremely low risk of death from abortion complications, but doesn’t mention the 2012 study that found the risk of death associated with childbirth to be 14 times higher than that from legal abortion. The pamphlet tells readers that “some women have reported” negative emotions, including depression, grief, and anxiety after abortions. However, it remains silent about rigorous, peer-reviewed research that compared outcomes for women who sought and received abortions to those who sought and were denied them. Those studies found no differences between the two groups in anxiety, depression, or post-traumatic stress disorder, and documented positive emotions, such as relief and reduced unhappiness, in those who obtained abortions. (See the Turnaway Study for details on this research).
Especially disturbing examples of legislators requiring providers to give women misleading information are laws passed in Arizona and Arkansas based on poorly supported claims that medication abortions can be “reversed” if a women decides to do so before taking the second drug. Such laws require physicians to provide a woman seeking a medication abortion with information about the possibility of “reversing” the procedure by taking another hormone to counter the mifepristone, despite the absence of reputable evidence that such “reversal” can occur. Requiring providers to give information like this, which is not borne out by human studies, conflicts with the responsibility of clinicians to do no harm.
The next step is for evidence-based medicine to meet with evidence-based legislating. It’s time for legislators to stop requiring health-care practices based on outdated or incomplete evidence, and instead focus on promoting health and high-quality health care for all.
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.
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. Hellerstedtstruck 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.
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.
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:
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.
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.