Abortion War Heats Up in the States

by Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Zaid Jilani, and Alex Seitz-Wald.


Since President Obama signed health care reform into law, a significant number of states have taken advantage of the law's carefully negotiated abortion provisions to restrict access to abortion coverage. The Nelson amendment attached to the health care bill not only prohibits public dollars from being used to finance abortions and requires insurers that choose to offer abortion coverage to collect a separate check from policy holders, it also specifically reasserts states' right to ban private insurers from providing abortion coverage to women within the state-based exchanges. As a result, states have used the Nelson language to reignite the abortion wars. As Center for American Progress Action Fund's Director of Women's Health and Rights Program Jessica Arons explained, Sen. Ben Nelson (D-NE) "opened the door for them to legislate away private insurance coverage of abortion and the states are walking right through. This is no longer about public funding for abortion (and in fact, it never really was); this is about making abortion impossible to obtain for women of all means." The effort is being coordinated by Americans United for Life (AUL), a national anti-abortion group that released abortion opt-out legislation immediately after the law passed. "Currently, 29 have either introduced an opt-out bill, are planning to introduce a bill shortly, or are laying the ground work to introduce a bill as soon as their legislative calendars permit," AUL boasts on its website. "Some states, with our help, are going even farther than preventing insurance plans that cover abortions from participating in their state exchanges. One positive outcome from the 2009-2010 health care reform debate is that many more Americans are now aware that a large number of private insurance plans, even their own, cover elective abortions," the group argues. Indeed, moving far beyond merely restricting any coverage within the exchanges, states like Nebraska, Oklahoma, and Utah have used this political movement as an opportunity to foist further restrictions on abortion, even as millions of poor women are more in need of the procedure than ever before. 


STRIPPING ABORTION FROM THE EXCHANGE: On April 24, Arizona became the first state to pass legislation prohibiting insurers in the state-run health care exchange "from providing coverage for abortions unless the coverage is offered as a separate optional rider for which an additional insurance premium is charged." The new Arizona law is a radical mini Stupak Amendment. It prevents insurers from offering abortion services, except under the most extreme circumstances, even if only private money were used to pay for those services. Most, if not all, women in the exchange would be able to purchase coverage only through an impractical, separate abortion "rider" or leave the exchange entirely and find coverage in the shrinking individual health insurance market. Since it's unlikely that many insurers will offer abortion riders or that women will purchase them in anticipation of needing an abortion -- in fact, "in the five states where abortion riders are currently required, no insurance company offers them" -- the Arizona law will severely disadvantage low income women who will likely have to pay out of pocket for abortion services and may not have the means to do so. Tennessee has passed a similar bill,which became law today, after Gov. Phil Bredesen (D) declined to either sign or veto the measure. The text of the bill "makes no mention of any exception for the case of rape, incest or if the mother's health is in danger," and many of the bill's supporters were confused about its text and intention. The bill prohibits all insurers from providing abortion coverage even if the woman pays for the insurance with private dollars, but lawmakers who voted for the measure "said they thought the bill was primarily intended toensure that taxpayer dollars would not be used for abortion coverage in the state health insurance exchange." "My 'yes' vote was based on that it didn't change anything in Tennessee law...and that it's consistent with what we've been doing in the legislature for the past several years," said one legislator who voted for the bill. Lawmakers also said they only voted for the bill based on assurances "that the legislation does allow for exceptions, in keeping with federal law on federal funding for abortion" (federal law allows public funding for rape, incest, and life endangerment). At least eight other states, including Oklahoma, Missouri, Mississippi, and Florida, are considering similar legislation . 


PET ABORTION PROJECTS: Health reform has opened a Pandora's box of state efforts to restrict abortion coverage, both by removing coverage from state exchanges and placing other new restrictions on abortion access. Most recently, the Oklahoma Senate overrode the governor's veto to pass a law that requires "women seeking an abortion [to] have a viewable ultrasound and listen to a detailed description of the fetus prior to the procedure." "Though other states have passed similar measures requiring women to have ultrasounds, Oklahoma's law goes further, mandating that a doctor or technician set up the monitor so the woman can see it and describe the heart, limbs and organs of the fetus. No exceptions are made for rape and incest victims," the New York Times observed. Oklahoma has also passed a law thatprotects doctors from being sued "if he or she chooses not to tell a woman that the baby she is carrying has a birth defect." "Under this new law, a doctor may withhold information, mislead or even blatantly lie to a pregnant woman and her partner about the health of their baby if the doctor so much as thinks that fetal test results would cause a woman to consider abortion." Similarly, the Florida state senate just voted 22-17 "in favor of a new government mandate that women seeking abortions must pay for ultrasounds -- which averages from $200 to $1,000 -- and, in most cases, view live images of the fetus." In Utah, a new law makes self-induced abortion a homicide, and in Nebraska, Gov. Dave Heineman (R) signed legislation "banning most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain." Both the American Medical Association and the American College of Obstetricians and Gynecologist disavow the "science" behind the claim that a fetus can feel pain at 20 weeks after conception, but the so-called "Pain Capable Unborn Child Act" is more of a political statement than a policy proposal. The bill is "created almost entirely as a vehicle for getting anti-choice legislation challenged and potentially reviewed by the Supreme Court" and grew out of an effort to push one of the nation's few remaining late term abortion providers out of the state. 


POOR WOMEN IN NEED OF ABORTIONS: States are passing their new abortion restrictions as families struggle in the midst of an economic recession. A new survey from the Guttmacher Institute reveals that poor women are obtaining abortions in greater numbers than women from other income brackets. From 2000 to 2008, "the proportion of abortion patients who were poor increased 59%," as women found it more difficult to access affordable birth control during an economic recession. Fifty-seven percent of women who had abortions also paid out of pocket for the procedure, regardless of their insurance status. As Guttmacher observes, "We suspect that several factors contributed to the lack of reliance on private insurance among women who had it. First, some may have had health care plans that exclude abortion services. ... Others may have been unaware that their plan covered abortion. Some women may have been reluctant to have the abortion on their insurance records out of concernthat an employer, regular health care provider or family member whom they did not want to know about the abortion would have access to this information." The results are fairly consistent with earlier surveys, which found that continued stigmatization of abortion -- treating it as something outside the bounds of normal health care -- forces women to pay out of pocket and disproportionately disadvantages poor women, who undergo the procedure at higher rates than their more affluent counterparts. 

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