an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The “Stupak-Pitts” Amendment to Health Care Reform
Priscilla J. Smith
Part I of II: Banning Public Funding or Refusing the Abortion Discount? (Coming Tomorrow -- Part II: Is there a Silver Lining for Those who Support Women’s Ability to Choose Abortion?)
Now that the Senate has begun its health care debate, the specter of abortion reenters that Chamber – this time in the form of the “Stupak-Pitts” Amendment to the House health care bill. How tired am I of women’s reproductive organs being used as political footballs (softballs?) in the – dare I say it – male-dominated halls of Washington, D.C.? (Women represent approximately 17% of the members.) Well, of course I’m tired of it and probably you are too.
But hold on. There are two particularly interesting things about this debate on “Stupak-Pitts” (hold comments from the peanut gallery) that should make those tired of the abortion debate pay attention this time. The first is the suspect notion of “public funding” that is being bandied about to promote the Amendment. The second is the possibility of a silver lining for pro-choicers that should perhaps give anti-abortion folks pause: does Stupak-Pitts offer the opportunity for a new equal protection challenge to the federal abortion funding restrictions? Before turning to these points (my comments on the second point will be posted tomorrow), I’ll outline briefly how Stupak-Pitts would operate and its likely impact on health insurance coverage for abortion care.
What Stupak-Pitts Would Do
The Health Exchange
The House’s health care reform package that we may or may not get sets up a “health care exchange.” The exchange is essentially a new marketplace for private health insurance plans – and maybe a public option – that would be available to the uninsured (@ 17 million of whom are women 18-64), the underinsured or overcharged with coverage purchased in the individual market (@ 5.7 million of whom are women), and employees of small employers.
Some of those purchasing plans in the exchange will receive a subsidy to assist them in purchasing a private plan or a public plan option, if the latter survives the political battle. Many others purchasing insurance through the exchange, however, will not meet the income eligibility limits and so will get no subsidy. The plans they purchase will however be subject to the health exchange rules.
Stupak-Pitts would prohibit:
• the use of federal funds to pay for abortions directly; NB: this requirement seems unnecessary since health care reform is unlikely – to put it mildly -- to include a single payer system, like Medicare; • the use of federal funds – defined to include any subsidy that reduces premium costs -- to buy a private plan offered in the exchange that covers any abortions (other than in cases of life endangerment by a physical condition, rape or incest). In other words, no woman buying a subsidized plan would be able to receive a plan that covered abortion. • the coverage of any abortions (other than in cases of life endangerment by a physical condition, rape or incest) in any public plan made available. Briefly put, no woman purchasing the public plan will receive coverage for abortion.
Stupak-Pitts would allow:
• companies to sell, and nonsubsidized individuals to buy, supplemental coverage, i.e., “riders,” or complete coverage plans, that include broader abortion coverage, but only if two conditions are met:
o First, all administrative costs and services offered through those riders or plans must be paid for only with premiums collected for those plans. Companies that offer riders or plans that cover abortion would be forced to set up completely segregated financial, claims approval and payment systems for its riders or abortion covered plans versus its non-abortion covered plans.
o Second, companies also offer a non-abortion coverage plan as well, subjecting themselves to the financial segregation requirements and additional costs discussed above. In other words, companies that currently offer plans that cover abortion would only be able to participate in the exchange if they set up a duplicate company within the company to sell a non-abortion coverage plan.
In other words, any company that wants to offer individuals who are not receiving subsidies a plan in the exchange that covers abortions, industry standard in private plans today by the way, or a “rider” to cover abortions can only do so by incurring the additional costs of offering two plans that do not share any administrative costs or infrastructure. Much has been made of these provisions but in truth the conditions undermine any benefit they offer.
Real Life Market Impact:
In an “Analysis of the Implications of the Stupak/Pitts Amendment for Coverage of Medically Indicated Abortions,” the George Washington University School of Public Health and Health Services has stated that the size of the new market created by the exchange – estimated by the Congressional Budget Office to include 30 million people within six years of implementation -- “is large enough so that Stupak/Pitts can be expected to alter the ‘default’ customs and practices that guide the health benefits industry as a whole.” GWU Analysis, at 9. Two major impacts on the market are anticipated.
First, although most abortion plans currently cover abortion, the GWU experts expect that the health benefits industry will “drop [abortion] coverage in all markets in order to meet the lowest common denominator in both the exchange and expanded Medicaid markets.” Thus, not only will women purchasing coverage in the health exchange be left without abortion coverage, women who currently have coverage through employer sponsored plans will lose that coverage as well. Id. at 5-6 & 10-12.
Second, according to the GWU experts, the inability of companies to intertwine administration of plans that cover abortions with plans that don’t will “defeat the development of a supplemental coverage market for medically indicated abortions.” Id. at 1-2, 12. Indeed, in the five states that already ban coverage for most abortions in private plans, but allow insurers to offer additional abortion coverage through an additional rider requiring payment of an additional premium, see Restricting Insurance Coverage of Abortion, (Nov. 1, 2009 GUTTMACHER INSTITUTE) available at http://www.guttmacher.org/statecenter/spibs/spib_RICA.pdf, there is no evidence that riders are available. For example, the National Women’s Law Center reports that Blue Cross Blue Shield of North Dakota, which has 91% market share in the state fails to offer any optional riders for abortion coverage. Moreover, because most pregnancies are unplanned, it is at least unknown if not unlikely that women would plan ahead to purchase the additional rider.
Public Funding or an Abortion Discount?
Stupak-Pitts is being sold as a “simple” ban on federal funding for abortion consistent with the ban on federal funding for most abortions in the Hyde Amendment. See Appendix A below for a description of Government Restrictions on Coverage of Abortion Care. However, given the design of health care reform, I query whether there is any actual “funding” of abortion being prevented by Stupak-Pitts?
If health care reform created a single payer system, a Medicare-like program or maybe even a Medicaid program which outlines which services must be covered, then we could have an honest debate about whether that government payer should write the checks to medical providers of one of the most common forms of women’s reproductive health care there is – abortion.
For example, we could talk about how one in every three women will have an abortion in her reproductive life and why that is so; about unplanned pregnancy, contraceptive failure, and sex ed, etc..
We could talk about how a fast increasing percentage of women obtaining abortions, now over 60%, already have at least one child, and cite concerns about their ability to care for and nurture the children they have as a major factor in obtaining an abortion. We could talk about how women still bear the burdens of childrearing disproportionately with (with?) the biological fathers of the children.
We could talk about how 12% of women obtain abortions because of their own health and 13% obtain abortions because of concerns about the health of the fetus and argue about whether women deserve to have their reproductive organs cared for on an equal basis with men.
In other words, we could talk about whether and how abortion serves women’s interests in equality, liberty, and equal liberty, and whether the government has an obligation to insure that it treats women the same as men with respect to their health, not to mention with respect to their ability to maintain their dignity, to define what is sometimes called “the course of one’s existence.” We could argue about whether deciding not only whether or not to be a parent, read mother, but also whether deciding how to parent, read mother, is an integral part of determining the “course of one’s existence.”
And ultimately, we could argue whether a government interest in distancing itself from abortion, or even expressing its disapproval of abortion, is important, or compelling, enough to justify treating women differently with respect to their physical integrity and ability to safeguard their health, their decisional autonomy, their equal right to determine the course of their existence and maintain their dignity.
Okay. But whatever health care reform will end up being, it won’t be a single-payer system, and whatever Stupak-Pitts is, it is not, as Stupak claimed recently in an attempt to refute the George Washington University study, a simple extension of the Hyde Amendment – the ban on federal funding for most abortions. Given this, there are two serious problems with this so-called public funding justification.
First, when we buy health insurance plans that cover abortion care, from an actuarial perspective that plan should be less expensive than one that covers only prenatal care and delivery services. All but a tiny fraction of abortions – those performed in high risk situations in hospitals – are significantly less expensive than prenatal care and delivery and so they save insurers money.
Of course, this isn’t a reason to cover abortions. But it does mean that when we are talking about buying health insurance instead of paying directly for services, we aren’t really talking about “federal funding for abortions” at all. Really, we should be talking about whether or not the federal government wants to accept the abortion discount, not whether or not the federal government is going to pay for abortions.
Second, Stupak-Pitts claims as “federal funding” the subsidies offered through tax credits and disallows abortion coverage in plans purchased with these tax credits. This expanded definition of federal funding to include tax relief to middle-class families not only extends Hyde restrictions to a new population, it also potentially expands government control to other aspects of our lives? If these tax credits are federal funds that can be restricted, what about my child care credit, or my standard deduction for that matter, or the tax relief I get for my employer health plan? How far will anti-abortion advocates go in their efforts to stop women from obtaining abortions? If they can reach into private plans in the exchange, why can’t they restrict health insurance tax deductions to those who purchase private plans that don’t offer abortions? Well, that will be next.
Tune in tomorrow for a discussion of silver linings and the potential for a new equal protection challenge!
APPENDIX A: Government Restrictions on Coverage of Abortion Care:
Restrictions on Federal Coverage: The federal government already bans federal funding for abortion, except for in cases of life endangerment, or pregnancy based on rape or incest, as follows: . These bans prevent coverage for abortions for: • Coverage for low-income women on Medicaid is prohibited pursuant to the “Hyde Amendment,” first enacted in 1977 and reenacted every year since; • Coverage for federal employees, including women serving in the military, their spouses, and female dependents is prohibited; (the latest Senate appropriations bill would not renew this restriction, though the House bill would); and • Coverage for prisoners in federal prisons is prohibited. (For women in the military serving overseas, there is an additional wrinkle. Beyond their limited employee health insurance, many women serving overseas are hard pressed to obtain an abortion using their own private funds because the government prevents abortions from being performed in U.S. military medical facilities, even where the woman uses her own money. She would have to find a facility off-base that would perform the procedure. If she is serving in a country where abortion is illegal or severely restricted, as it is for example in Iraq and Afghanistan, this will prove impossible.)
Restrictions on State Coverage: At the state level, the picture is mixed: • Coverage for low income women on Medicaid: o Thirty-three states and the District of Columbia ban most Medicaid funding for abortion. (Thirty-two and D.C. follow the federal standard and cover abortions only where the pregnancy endangers the woman’s life, or where the pregnancy was caused by rape or incest; one provides even more limited coverage, funding abortions only where the pregnancy endangers the woman’s life. See State Funding of Abortion Under Medicaid, (Nov. 1, 2009 GUTTMACHER INSTITUTE) available at http://www.guttmacher.org/statecenter/spibs/spib_SFAM.pdf). o Seventeen states cover all or most medically necessary abortions in their Medicaid program using state funds; four states do this voluntarily; the other 13 do so pursuant to a court order. • Coverage for Public Employees: twelve states restrict abortion coverage in insurance plans for public employees of which: o two prohibit insurance coverage of any abortions, even those which could kill the woman; o three allow abortion coverage only when the pregnancy endangers the woman’s life; o seven allow coverage only when the pregnancy endangers the woman’s life or in cases of rape, incest, or fetal abnormality.
Government Restrictions on Private Insurance
Less well known than the public funding restrictions is the fact that five states place restrictions on what private insurers can cover. Four states, Idaho, Kentucky, Missouri, and North Dakota allow coverage only where the pregnancy endangers the woman’s life; Oklahoma’s restrictions mirror the Hyde restrictions allowing coverage only where the pregnancy endangers the woman’s life or where the pregnancy results from rape and/or incest. See Restricting Insurance Coverage of Abortion, (Nov. 1, 2009 GUTTMACHER INSTITUTE) available at http://www.guttmacher.org/statecenter/spibs/spib_RICA.pdf.
Insurers are allowed but not required to offer additional abortion coverage through an additional rider requiring payment of an additional premium. In fact, there is no evidence that riders are available in the individual market in any of the five states that restrict coverage in private plans. For example, the National Women’s Law Center reports that Blue Cross Blue Shield of North Dakota, which has 91% market share in the state fails to offer any optional riders for abortion coverage. Moreover, because most pregnancies are unplanned, it is at least unknown if not unlikely that women would plan ahead to purchase the additional rider.