03.23.10 – It seems clear in the light of day that the considerable achievement of healthcare reform — and it is a considerable achievement — has come at high price for the legal and policy landscape on access to abortion services. As a reproductive rights organization, we care deeply about women’s access to the full range of reproductive health services and are heartened that the bill will provide millions of women greater access to insurance coverage for contraception, maternity care, and other reproductive health services. It is a major advance that cesarean sections will not be termed a “pre-existing condition” that excludes women from pregnancy care. But the House of Representatives’ passage of the Senate health care bill is terrible news for those concerned with access to abortion services.
There has been considerable confusion and flat-out misrepresentations about the bill (some Representatives have outrageously claimed that it will provide federal funding for abortion services when it plainly does not). Here’s what we are left with.
The punishing provisions of the Nelson Amendment will require individuals who choose a health plan that includes abortion coverage to make two separate payments of insurance premiums, one for abortion coverage and one for everything else. As an analysis from George Washington University experts shows, the restrictions will likely result in insurance companies choosing to drop abortion coverage in Health Insurance Exchanges, and may have a spillover effect to insurance plans not in the Exchanges. This violates the President’s promise that those who like the insurance plans they already have will be able to keep them after healthcare reform, as most private health insurance plans currently cover abortion. The Nelson Amendment also has a lopsided conscience clause that only protects those who oppose abortion from being discriminated against by insurance plans. Finally, it allows states to prohibit abortion coverage altogether from plans offered through the Exchanges.
And what about the Executive Order on abortion restrictions that President Obama has said he will issue? Legally, it adds little to the burdensome and discriminatory Nelson Amendment. It requires “strict compliance” with the prohibitions on abortion funding in the Exchanges and the burdensome payment requirements. It requires the Office of Management and Budget and Department of Health and Human Services to develop within 180 days a model set of segregation guidelines, followed by rulemaking. And it states that Community Health Centers still may not use funds for abortion services (except in cases of rape, incest, or life endangerment).
Does that mean the Executive Order is harmless? A mere fig leaf for anti-choice votes on the bill? Absolutely not. The Executive Order lends credibility to the Hyde Amendment, a discriminatory and harmful policy that denies abortion coverage (except in cases of rape, incest or life endangerment) to poor women who rely on Medicaid. The Hyde Amendment was denounced by President Obama himself as a presidential candidate. And rightfully so. Abortion is the only medically necessary procedure excluded from Medicaid coverage. Similar discriminatory restrictions exist for federal employees, Native Americans, women in the military and others dependent of the federal government for their healthcare. These limitations have never been made part of permanent law, and instead have been re-enacted each year in annual appropriations bills. That a pro-choice President has put his imprimatur on these highly restrictive and unjust anti-choice policies makes prospects for progress on reversing them considerably more difficult.
Last summer, we were working hard to achieve such a reversal with the help of a brave woman willing to speak out. We represented DJ, a federal employee who terminated a much-wanted pregnancy after learning that her fetus had anencephaly and would not survive. Three weeks after the procedure, she received a bill for $9,000. She was outraged when she learned that politicians in Washington had decided that her circumstances were unworthy of insurance coverage. She came to us, and went public with her story. We will not forget the struggles of women like DJ, women on Medicaid, and soon women relying on health care in the Exchanges, nor will we stop telling their stories.
I understand the cold reality of where we stand today. But I am encouraged by the work of advocates around the world and in this nation to keep fighting against difficult odds. There are beacons of progress out there. Ten years ago, Nepal banned abortion in all circumstances — even to save the life of the woman — and sent women to prison for having abortions. Nepal liberalized its abortion law in 2002, and, just last May, the Center for Reproductive Rights and our partner the Forum for Women Law and Development won a case before the Nepalese Supreme Court requiring the government to fund abortions for poor women. In ten short years, with tireless and dedicated advocacy, the law in Nepal moved from criminalization of abortion to government funding for abortion services to make the right a reality for all.
So I will not be dispirited, and I hope that you will not either. We look forward to working with you to reclaim the lives and voices of women in the U.S. and around the world.