January 20, 2011, Representative Joe Pitts (R-PA) introduced an extreme
anti-choice bill for consideration by Congress.
Subsequently, on February 3, 2011, Rep. Pitts made public a revised
bill. Key problems with the bill
- The bill would ban abortion coverage for
millions of women. A majority of employer-based health plans currently
include abortion coverage,[i]
and many of these private plans will become part of the new health
insurance marketplaces (called “exchanges”) and would be barred from
offering insurance coverage for abortion.
- The bill would also allow a broad refusal
provision to trump core patient protections contained in the Emergency Medical Treatment and Active
Labor Act (“EMTALA”) – meaning that hospitals could refuse life-saving
treatment to women on religious or moral grounds, thus causing their death
inside the hospital despite their treatable condition.
- The Pitts ban includes a subtle but insidious
provision that would undermine the integrity of the healthcare law far
beyond the abortion compromise. The proposal’s broad carve-out for any
state law on refusal could allow insurers to refuse to offer important
preventive services otherwise required by the Affordable Care Act. For example, health plans could refuse
to cover screening and counseling for HIV and other sexually transmitted
infections, the human papilloma virus vaccine, or even pap smears for
- The proposal would also codify in permanent law
harmful one-sided refusal provisions that undermine women’s access to
essential care and information.
The Pitts Proposal Would Undermine
Healthcare Reform and Threaten Insurance Coverage
of a larger effort to overturn healthcare reform and take away essential
coverage from millions of American families, the Pitts abortion ban is an
attempt to revive last year’s failed Stupak-Pitts ban.
prior efforts, the bill creates a fiction about federal funding to bar coverage
in the private insurance market.
Healthcare reform allows every insurer to choose whether to provide such
coverage in private plans.[ii] Burdensome and elaborate restrictions on
insurers required by the so-called “Nelson Amendment” ensure no federal dollar
will flow to coverage of abortion.
the troubling and burdensome restrictions in the Hyde Amendment also apply to
federal funds in healthcare reform.[iii] A federal court in Virginia recently noted
that the Affordable Care Act “contains
strict safeguards at multiple levels to prevent federal funds from being used
to pay for abortion services beyond those in cases of rape or incest, or
where the life of the woman would be endangered,” concluding that any claim to
the contrary was not “plausible.”[iv]
Pitts ban would bar insurance plans in the new exchanges from providing
abortion coverage if a single person receiving premium assistance credits
enrolls. Because a great majority of individuals
on the exchanges will receive subsidies, the Pitts ban would therefore
essentially ban coverage of abortion in the exchanges for everyone – including
those paying for coverage entirely with private dollars.
Pitts ban would also decrease – or even eliminate – abortion coverage in the
private market. A George Washington
University Medical Center School report found after analyzing the Stupak-Pitts
ban that “the treatment exclusions required . . . will have an industry-wide
effect, eliminating coverage of medically indicated abortions over time for all
women, not only those whose coverage is derived through a health-insurance
the bill offers up the ability for women to purchase “abortion riders,” it is
irrational to ask women and families to plan for an unplanned pregnancy by purchasing
separate, supplemental coverage. Moreover,
women receiving premium assistance cannot afford healthcare insurance, let
alone a second insurance policy. Most
importantly, history shows that insurers simply do not offer “rider” coverage
even when they are able to do so.[vi]
Pitts ban would forsake the fundamental promises of healthcare reform. It would deny women abortion coverage despite
stringent restrictions that already assure that federal funding is segregated
from payments for coverage, and would threaten or eliminate coverage that women
already have for abortion in the private insurance marketplace.
The Pitts Bill Expands the Culture
of Refusal and Intensifies a Discriminatory Refusal Policy
law amply protects healthcare providers who entertain religious or moral
objections to the provision of abortion services.[vii] Since 1973, the Church Amendment has provided
that no individual may be discriminated against because they performed or
refused to perform an abortion based on their religious beliefs or moral
convictions. Other federal laws bolster those opt-outs specifically for those
who refuse to provide abortions services.
The Affordable Care Act left all of these laws intact, and as well as
adding a new, one-sided provision barring health plans from discriminating
against healthcare providers or facilities because of their refusal to “provide, pay for, provide
coverage of, or refer for abortions.”[viii]
the policy attention to refusal, those who choose to provide abortion services
are routinely harassed, intimidated, and discriminated against, as documented
in our 2009 report.[ix]
Pitts refusal provision does nothing to protect the men and women who provide
abortion services. Moreover, the lopsided Pitts provision violates a fundamental
principle of American law by allowing discrimination based on viewpoint, and is
inconsistent with the concepts of balance and fairness that undergird our legal
seeking abortion services must often overcome significant hurdles in finding a
provider – from the Guttmacher Institute: “87% of all U.S. counties lacked an
abortion provider in 2008, 35% of women in the U.S. live in those counties.”[x] Against this backdrop, the Pitts bill would
both dramatically expand and make permanent a dangerous, discriminatory refusal
policy that undermines women’s access to healthcare.[xi]
The Pitts Bill Would Allow the
Denial of Emergency Care, Threatening Women’s Lives
late addition to the revised version of the Pitts bill would allow the
expansive refusal provision to trump the patient protections in a key health
law, the Emergency Medical Treatment
and Active Labor Act (“EMTALA”). As the
name implies, a particular focus of concern under the law is the health and
safety of pregnant women, who must be able to go to the nearest emergency room
for adequate care throughout a pregnancy.
Yet allowing refusal objections to interfere with
even those emergency measures necessary to save the life of a pregnant woman
would mean that women entering a hospital are unwittingly allowing others to
play Russian Roulette with their lives.
In a related incident last year, the Bishop of an Archdiocese in Arizona
excommunicated a nun who had permitted a life-saving pregnancy termination to
go forward at St. Joseph’s hospital. The Catholic status of the hospital was
also subsequently revoked.[xii] In a letter about the case, Bishop Olmsted
argued that there was no way to provide life-saving treatment for the pregnant
woman in question consistent with Church doctrine.[xiii]
The Pitts Bill Would Give Refusal
Rights to Corporations
refusal provision in the Pitts ban goes far beyond protecting individual
conscience. Instead, it would allow
corporations – for any reason – to interfere with the doctor-patient
relationship, regardless of the doctors’ own beliefs or the patients’ medical
needs. It is a basic tenet of ethical
healthcare provision that patients must be presented with accurate and complete
information about their medical options in order to make decisions about their
healthcare. The Pitts refusal provision
denies women that fundamental right.
The Pitts Bill Would Allow Anyone
for Any Reason to Obstruct Access to Care
Pitts refusal provision could allow an endless stream of obstruction by those
who would deny women access to abortion services for any reason. Unlike the Church Amendment, the Pitts
provision does not limit its scope to those with religious or moral beliefs,
instead, it would allow a denial of care by anyone, including those motivated
to refuse access to abortion for political or other reasons. What’s more, the Pitts provision could allow
people with only a tangential connection to the provision of abortion care to
interfere with the provision of services in a way that could delay or deny care
– such as receptionists who make appointments or claims adjustors at insurance
Preemption Language Would Undermine
Access to Essential Health Services – Like Pap Smears and Vaccines – Well
Pitts ban includes a subtle but insidious provision that would undermine the
integrity of the healthcare law far beyond the abortion compromise. The proposal’s broad carve-out protection for
any state refusal law could allow insurers to refuse to offer important
services that are part of the minimum standards for health coverage set by the
Affordable Care Act. These standards
could include services and supplies related to contraception, infertility, and
sexually transmitted infections.
Preventive services already required include screening and counseling
for HIV and
other sexually transmitted disease, cervical cancer screening, and vaccination
for human papilloma virus.
of comprehensive health services object to a broad range of services – from
birth control to genetic testing to end-of-life care to reproductive
technologies that allow more and more couples to become parents.[xiv]
provision is a back-door attempt to create new exemptions that were considered
and rejected by Congress during the health reform debate.
Additional Provisions in Pitts that
Undermine Access to Healthcare
The Pitts Ban Would Trample on
the fair balance struck during healthcare reform, the Affordable Care Act does
not affect any state law regarding coverage or funding of abortion services –
either prohibiting or requiring it.[xv] The Pitts ban would destroy this even-handed
protection for state policies, and instead would protect only those state laws
that restrict or prohibit coverage of abortion, undermining the sovereignty of
states that may choose to treat abortion services like other healthcare
The Pitts Ban Interferes with the
Private Market Decisions of Insurance Plans
Affordable Care Act allows insurers to determine whether or not a plan provides
coverage of abortion services.[xvi]
It also ensures that there will be at least one multi-state plan that does not
provide coverage of abortion services, allowing for a range of options.[xvii] The Pitts ban would interfere with the
private market decisions of insurance plans by barring all such coverage in any
The Bill Includes Gag Provisions
that Would Deny Access to Reproductive Health Information
Pitts ban prohibits anyone implementing the Affordable Care Act – the
Department of Health and Human Services, the state-based exchanges – from
ensuring “access” to abortion services.[xix] Under this new and far-reaching language in the
Pitts ban, therefore, women could be barred from even receiving information
about abortion services, including information about whether or not abortion
care is covered by a given insurance plan.
[i] Guttmacher Institute, Memo on Private Insurance Coverage of
Abortion (Jan. 19, 2011) at www.guttmacher.org/media/inthenews/2011/01/19/index.html.
[ii] Patient Protection and Affordable Care Act, Pub L. No. 111-148, §
1303, 124 Stat. 119, 168-171 (codified at 42 U.S.C.A. § 18023 (West 2010)).
[iii] Id. § 1303(b)(1)(B)(i).
[iv] Liberty University v.
Geithner, 2010 WL 4860299, at *24 (W.D. Va. Nov. 30, 2010) (explaining further that “In plans
that do provide non-excepted abortion coverage, a separate payment for
non-excepted abortion services must be made by the policyholder to the insurer,
and the insurer must deposit those payments in a separate allocation account
that consists solely of those payments, the insurer must use only the amounts
in that account to pay for non-excepted abortion services. Act § 1303(b)(2)(B),
(C). Insurers are prohibited from using funds attributable to premium tax
credits or cost-sharing reductions in out-of-pocket maximum limits for
individuals with income below 400 percent of the federal poverty level to pay
for non-excepted abortion services. Act § 1303(b)(2)(A).”).
[v] Sara Rosenbaum et. al., An
Analysis of the Implications of the Stupak/Pitts Amendment for Coverage of
Medically Indicated Abortions (Nov. 16, 2009), www.gwumc.edu/sphhs/departments/healthpolicy/dhp_publications/pub_uploads/dhpPublication_FED314C4-5056-9D20-3DBE77EF6ABF0FED.pdf.
[vi] See, e.g., Kaiser Foundation, “How the House
Abortion Restrictions Would Work,” Nov. 10, 2009, available at
(last visited Nov. 11, 2009), Peter Slevin, Insurers
report on use of abortion riders, Washington Post, Mar. 14, 2010.
[vii] See Church Amendment, 42 U.S.C. § 300a-7 (2006), Coats Amendment, 42 U.S.C. §
238n (2006), Weldon Amendment, Pub. L. No. 111-8, § 508(d)(1), 123 Stat. 524,
[viii] Patient Protection and Affordable Care Act, Pub L. No. 111-148, §
1303(b)(4), 124 Stat. 119, 168-171 (codified at 42 U.S.C.A. § 18023 (West
[ix] Center for
Reproductive Rights, Defending Human
Rights: Abortion Providers Facing Threats, Restrictions, and Harassment (2009),
available at //www.reproductiverights.org/sites/default/files/documents/DefendingHumanRights.pdf.
[xi] Protect Life Act, 112th Cong. § 2(a)(7) (2011).
[xii] See Laurie Goodstein, Arizona:
Hospital Loses Catholic Affiliation, N.Y. Times, Dec. 22, 2010, at A25.
[xiii] See Bishop Thomas J. Olmsted, Statement
in Response to Abortion Performed at St. Joseph’s Hospital (May 15, 2010).
[xv] Patient Protection and Affordable Care Act, Pub L. No. 111-148, §
1303(c)(1), 124 Stat. 119, 168-171 (codified at 42 U.S.C.A. § 18023 (West
[xvi] Patient Protection and Affordable Care Act, Pub L. No. 111-148, §
1303(b)(1)(A)(ii), 124 Stat. 119, 168-171 (codified at 42 U.S.C.A. § 18023
[xvii] Id. § 1334(a)(6).
[xviii] Protect Life Act, 112th Cong. § 2(b) (2011).
[xix] Protect Life Act, 112th Cong. § 2(a)(3) (2011).