The Protect Life Act Revives Failed Stupak-Pitts Amendment, Effectively Bans Abortion Coverage in Health-Insurance Exchanges

Transcription

1 The Protect Life Act Revives Failed Stupak-Pitts Amendment, Effectively Bans Abortion Coverage in Health-Insurance Exchanges The Protect Life Act (H.R.358-S.877), introduced by Energy and Commerce Health Subcommittee Chair Rep. Joe Pitts (R-PA) and anti-choice Sen. Orrin Hatch (R-UT), represents a major threat to women s ability to obtain abortion coverage and care. Contrary to its sponsors claims, the bill is far more than a ban on public funding of abortion care. Instead, it would: impose the notorious Stupak-Pitts amendment on the new health-system, making it virtually impossible for insurance companies in state health-insurance exchanges to offer abortion coverage, even to women paying entirely with their own money, and would forbid abortion coverage for millions of middle- and low-income women who will receive partial subsidies to purchase insurance; allow hospitals to refuse to provide life-saving abortion care to women who face imminent threat of death; give states the ability to attack coverage of non-abortion related services, such as contraception; and penalize private insurers who offer comprehensive insurance products for sale in multiple states. Additionally, the original House version of the bill, H.R.358, included a provision that would have made it harder for survivors of rape and incest to access coverage for their abortion care. While that provision was dropped from H.R.358 and was not included in the Senate companion bill, its original inclusion demonstrates the legislation s extreme and mean-spirited nature. The House passed the bill by a vote of on October 13, Notably, 14 members of Congress who originally supported the original Stupak-Pitts amendment during the health-care reform debate changed their position, and opposed H.R.358. Wisely, the Senate has not taken up the proposal. The Pitts-Hatch Bill Would Effectively Ban Abortion Coverage in State Health-Insurance Exchanges By: Denying abortion coverage for women using their own, private funds to pay for their insurance. The bill forbids any plan offering abortion coverage from accepting even one subsidized customer, forcing plans to choose between offering their product without abortion to the entire universe of consumers in a state exchange and offering a benefits package that does include abortion services to a small minority of unsubsidized customers. (As more than 85 percent of the participants in state insurance exchanges will be

2 subsidized, 1 it seems clear which choice insurers are likely to make.) As a result, millions of unsubsidized individuals and small-business employees who obtain insurance through a state health-insurance exchange will be denied abortion coverage. Imposing crippling administrative burdens on plans that choose to cover abortion care. If the Pitts-Hatch bill becomes law, insurance companies that offer abortion coverage will face high costs, technical complexities, and duplicative administrative requirements. Under the Pitts-Hatch language, if an insurance company offers a plan with abortion coverage, it also must offer a second, identical plan without abortion coverage, greatly increasing an insurer s administrative overhead. For this reason, it seems clear that plans would be likely simply not to offer abortion coverage. Moreover, the legislation s virtual ban on abortion coverage in state health-insurance exchanges can be expected to have an industry-wide impact on abortion coverage in the entire private insurance market. 2 According to health policy experts, as insurance exchanges grow they will have a greater effect on the health-insurance industry as a whole, eventually becoming the de facto standard for benefits packages. 3 Over time, the bill s coverage exclusion could cause the elimination of coverage of abortion services for most women not just those who obtain coverage through a health-insurance exchange. Furthermore, claims by the bill s supporters that this legislation is necessary to prevent federal health-care dollars from being used for abortion care are unfounded. Current law unjustly bars federal funds including those appropriated by the Affordable Care Act from paying for abortion services except in very narrow circumstances. In fact, a federal appeals court recently found that [t]he express language of the [ACA] does not provide for tax-payer funded abortion. That is a fact, and it is clear on its face. 4 The Bill Allows Hospitals to Refuse to Provide Certain Life-Saving, Emergency Care to Women The Pitts-Hatch bill allows hospitals to refuse to provide abortion care, or to refer the patient to a hospital that will, even when a woman s life is in critical danger. With regard to abortion care, it overrides the Emergency Medical Treatment & Labor Act (EMTALA), undermining this key provision of federal law that ensures all people access to emergency services, regardless of their ability to pay. EMTALA requires Medicare-participating hospitals that offer emergency services to provide stabilizing treatment for all patients who present an emergency medical condition. Such required treatment could include provision of emergency abortion care to a woman whose pregnancy imminently endangers her life. While the Affordable Care Act specifically preserved EMTALA s requirement that hospitals provide necessary emergency services, the Pitts-Hatch bill allows hospitals to refuse to provide abortion care even for women in life-threatening situations. In nullifying EMTALA as it applies to abortion care, the Pitts-Hatch legislation callously places the preferences of hospitals before the lives of women. 2

3 The intent of this provision is clear: to allow hospitals to invoke refusal claims rather than provide emergency abortion care. Anti-choice members of a House subcommittee rejected an amendment to strip the language in H.R.358 that subjects EMTALA to the bill s refusal provisions. Then, when the full House of Representatives considered H.R.358 on the floor, not a single member of the anti-choice majority voted in support of the motion offered by pro-choice Rep. Lois Capps (D-CA) to correct this dangerous language. (Rep. Capps motion to fix the EMTALA provision failed by a vote of 173 to 249.) 5 This series of votes makes clear the priorities and objectives of the bill s proponents: for them conscience-clause objections predominate over the emergency needs of a patient. 6 Refusal Language Gives States the Ability to Attack Other, Non-Abortion Services, Such as Contraception The state-preemption provisions in the Pitts-Hatch legislation are so broad that they would let states undermine any law that ensures access to medical care. In the reproductive-rights context, this could effectively negate laws that guarantee access to birth control, including (but not limited to) those that ensure emergency contraception is offered to sexual-assault survivors in hospitals. As Rep. Tammy Baldwin (D-WI) noted during a House committee mark-up of H.R.358, the legislation also has the potential to undermine laws guaranteeing health-care services well beyond those in the reproductive-health area resulting in the potential denial of mental-health services, HIV counseling, and other services to the LGBT community. 7 When Rep. Jan Schakowsky (D-IL) offered an amendment to H.R.358 to ensure that the bill s reach in this area would be limited only to abortion services, anti-choice lawmakers unanimously rejected the proposal. 8 Broad refusal clauses that hinder women s access to abortion are bad enough on their own; the Pitts-Hatch bill is even worse, by reaching even further than abortion care and potentially affecting any health-care service. The Original Version Would Have Made it Harder for Survivors of Rape and Incest to Obtain Abortion Services Until sponsors were forced to remove the provision after public outcry from half-a-million grassroots activists and harsh criticism in the national media, the original version of H.R.358 imposed unprecedented limitations on abortion care for survivors of rape and incest. Most federal laws that restrict access to abortion services allow exceptions for instances of rape or incest. The original H.R.358, however, limited these already-narrow categories so drastically that it ultimately would have denied private insurance coverage of abortion to survivors of statutory rape and to any incest survivor 18 years of age or older if they had obtained their insurance through a state exchange. While this offensive provision ultimately was dropped from H.R.358 and was not included in the Senate companion bill, S.877, its inclusion in the original House version of the bill offers another indication of the legislation s extreme and mean-spirited nature. 3

4 Multi-State Private Insurance Plans Are Prohibited From Offering Abortion Coverage While the Affordable Care Act currently requires that there be at least one multi-state plan that does not include abortion coverage, it permits all other multi-state plans to choose whether to offer such coverage. In banning abortion coverage from all multi-state plans, the Pitts-Hatch bill interferes with private insurance companies decisions about what benefits to offer, and would deny abortion coverage to even more women. Conclusion The Pitts-Hatch bill s effective ban on abortion coverage represents an intolerable, regressive policy and, for women, will utterly upend the promise of health reform. The Affordable Care Act currently does not prohibit private insurance companies from offering comprehensive health plans that include abortion coverage in the new health system. However, if the Pitts- Hatch bill becomes law, private insurance plans in the exchange will be subject to unprecedented federal interference in what benefits plans can offer. Furthermore, allowing hospitals to deny emergency abortion care to women who face imminent threat of death is unconscionable and reveals the extreme nature of this legislation. Through the Nelson provisions, the health-reform law already imposes other, unacceptable restrictions on abortion coverage that restrict federal funding for abortion (see Nelson Provisions in Health-Care Law Could Jeopardize, Stigmatize Access to Abortion Services); the Pitts-Hatch bill, on the other hand, is even more extreme and should be rejected. January 1, Letter from Douglas W. Elmendorf, Director, Congressional Budget Office, to Rep. John D. Dingell (Nov. 6, 2009), available at t_update.pdf (last visited Aug. 1, 2013). 2 Sara Rosenbaum et. al., An Analysis of the Implications of the Stupak/Pitts Amendment for Coverage of Medically Indicated Abortions 9 (2009), available at on_fed314c d20-3dbe77ef6abf0fed.pdf (last visited Aug. 1, 2013). 3 Sara Rosenbaum et. al., An Analysis of the Implications of the Stupak/Pitts Amendment for Coverage of Medically Indicated Abortions 9 (2009), available at on_fed314c d20-3dbe77ef6abf0fed.pdf (last visited Aug. 1, 2013). 4 Susan B. Anthony List v. Driehaus, 805 F. Supp. 2d 423, 431 (S.D. Ohio 2011) CONG. REC. H6886 (daily ed. Oct. 13, 2011) (Roll. No. 788). 4

5 6 H.R. REP. NO , at 29 (2011). 7 Markup on H.R. 525, the Veterinary Public Health Workforce and Education Act; H.R. 528, the Neglected Infections of Impoverished Americans Act; H.R. 570, the Dental Emergency Responder Act; and H.R. 358, the Protect Life Act, H. Comm. on Energy and Commerce, 112th Cong (2011) (remarks by Rep. Tammy Baldwin, Member, H. Comm. on Energy and Commerce), available at up%20of%20hrs%20358%2c525%2c528%2c570%2c%20and%20ec%20oversight%20plan.pdf (last visited Aug. 1, 2013). 8 Markup of H.R. 358, Protect Life Act; H.R. 570, Dental Emergency Responders Act; H.R. 528, Neglected Infections of Impoverished Americans Act; and H.R. 525, Veterinary Public Health Amendment Act, H. Subcomm. on Health of the H. Comm. on Energy and Commerce, 112th Cong (2011) (remarks by Rep. Jan Schakowsky, Member, H. Comm. on Energy and Commerce), available at mittee_markup_hrs358%2c525%2c528%2c570.pdf (last visited Aug. 1, 2013); Letter from Rep. Fred Upton, Chairman, H. Comm. on Energy and Commerce, to Rep. Daniel E. Lungren, Chairman, H. Comm. on H. Admin. 2 (Mar. 29, 2011), available at (last visited Aug. 1, 2013). 5