With liberty and access for some: the ACA's disconnect for women's health.

• Author: Huberfeld, Nicole
• Position: Patient Protection and Affordable Care Act

Introduction I. Historical Anachronisms A. Abortion Is Healthcare B. The Fragmenting Effect of Stakeholder-Oriented, Rights-Absent Healthcare C. Non Woman-Centric Liberties II. The Spending Amplification A. A Quick Tour of the ACA B. Public Insurance C. Private Insurance III. The Impact of NFIB v. Sebelius Conclusion "And we have now just enshrined, as soon as I sign this bill, the core principle that everybody should have some basic security when it comes to their health care."

INTRODUCTION

If healthcare reform had excluded from its "basic security" cardiac catheterizations, Caesarian section deliveries, or knee replacement surgeries from the services to be covered by either public or private health insurance, the public likely would have been both bewildered and outraged. It would have been bewildered because the goal of healthcare reform was to create near-universal insurance coverage to facilitate equal access to healthcare, and outraged because these procedures are some of the most frequently performed inpatient surgical procedures in the United States. (2) If access to care was the goal, then covering the procedures most often performed would seem to ensure that various populations receive equitable access to care. Nevertheless, Congress explicitly excluded (3) a procedure that current statistics indicate one in three women of childbearing age will need: abortion. (4) Not even medically necessary abortions, where the fetus is not viable, or where the pregnant woman's health is endangered, are rescued from the pariah designation imposed by the Patient Protection and Affordable Care Act (ACA). (5)

Trading healthcare reform for women's reproductive health was not an unexpected occurrence. In 2010, I predicted that Congress was likely to exclude poor women from the sweeping access to care that the nascent health reform bill appeared poised to provide. (6) The ACA was an expansive legislative effort that attempted to level the playing field for healthcare access in the United States; in many areas, the ACA is likely to succeed. (7) But by excluding one of the most common surgical procedures from its sweep, the ACA has traded women's reproductive rights for everyone else's gain in medical care. (8)

Despite this compromise, the ACA contains many provisions that will better women's health by improving their access to consistent care and their status in insurance markets? Such provisions include the elimination of preexisting condition clauses, (10) prohibitions on rescission, (11) open access to obstetric and gynecologic services, (12) required maternity and newborn care, (13) and the prohibition of lifetime caps on insurance coverage. (14) These private insurance strictures will improve the health of women regardless of their marital, employment, socioeconomic, or other statuses, but especially women of low economic means who historically have had trouble accessing consistent healthcare of any kind. (15) The irony is that these same women are the most likely to suffer unintended pregnancies and to seek abortions to terminate such pregnancies, which neither public nor private insurance will cover under the ACA, except in extremely limited circumstances. (16)

This limitation may be mitigated by the regulatory determination as to which preventive services should be covered free of copayment requirements by insurers. (17) The ACA commands that private insurers must provide coverage of "essential health benefits," which were to include certain women's health services, (18) with no required copayment. (19) Working at the Secretary of the Department of Health and Human Services' behest, the Institute of Medicine (IOM) found that contraception is an essential health benefit, extending the reach of the ACA's access goals to millions of women for whom contraception was prohibitively expensive. (20) Thus, the ACA may significantly expand coverage for, and use of, contraceptives, thereby lowering the number of abortions that women of any background will seek, but especially those for whom rates of abortion have been rising (the poor, African-Americans, and Latinas). (21) This provision is in jeopardy because secular, private employers have challenged its constitutionality, claiming that the ACA restricts their exercise of religious freedom. (22)

Despite the advance in women's healthcare that the push for covering contraceptives represents, treating women's medical care as a political trading card diminishes the status of women in the polity and has retrograde ramifications for their health. Abortion is a medical procedure, but the political rhetoric of "choice" versus "life" seems to have co-opted the hard fact that women sometimes need abortions for medical reasons, and prohibiting access to abortions, even by the indirect method of funding, ultimately can endanger women's lives. (23) This is especially true for the low-income women who rely on Medicaid (24) or who will receive the tax subsidies available for purchasing private insurance in the exchanges (a line that will undoubtedly be fluid). (25) The great paradox of the ACA is that it creates substantial new obstacles to reproductive health at the same moment that it attempts to improve access for women's healthcare.

This Article will scrutinize the separation of abortion from other aspects of women's health through the vehicle of the ACA. Part I will examine briefly why the fragmented nature of American healthcare has facilitated the separation of abortion from women's health, despite the fact that abortion is a medically necessary procedure for many women. To that end, this Part will explore the disjointed history of access to medicine juxtaposed against the strangely non-woman-centric nature of the fundamental rights at play in reproductive health. Part II will provide an overview of the ACA to explain the spending elements of the ACA that magnify greatly the limits on access to abortion in both public and private health insurance programs. Part III will summarize the jurisprudential changes resulting from National Federation of Independent Business v. Sebelius (26) and analyze three ways in which NFIB affects women's health under the ACA.

1. HISTORICAL ANACHRONISMS

   The ACA's reliance on existing fractured finance and delivery systems facilitated the separation of reproductive care from the remainder of the law. This Part will consider the role of historical paths in American healthcare to contextualize how healthcare reform could exclude a commonly performed, non-experimental medical procedure from its otherwise patient-protective approach to healthcare access. It will then review the underlying rights that should protect women from the ACA's segregation of reproductive care. Studying these structural elements of American healthcare helps to clarify how pre-existing systemic deficiencies facilitated the amplification of the Hyde Amendment, which will be explored in Part II.

   1. Abortion Is Healthcare

      Women's sexual health is a beacon for political controversy, and the ACA has been no exception. Therefore, it is important to highlight this fact: abortion is a form of medical care for women. (27) Pregnancies may be terminated either surgically or by oral medication; both situations require medically trained personnel. (28) The medical assistance necessary for abortion both helps to define it as healthcare for women and increases the complexity of its regulation, as healthcare providers are licensed by each state in which they provide medical services and are subject to the special rules that often attend abortion. (29) Abortion may be performed for a number of medical reasons, such as ectopic pregnancy, fetal abnormality, life-and health-threatening pregnancy-related complications (such as blood clots), or incomplete spontaneous miscarriage. (30) This recognition was a foundational element of the initial push for decriminalizing abortion in the 1960s, which came not only from women's rights organizations but also from the medical profession. (31) Over time, the narrative of women's medical need for abortion has been lost both in the law and in the public conversation. (32) But the fact that abortion is a medical procedure, and thus part of the constellation of women's healthcare, remains.

      Abortion's medical status is reflected in widespread private insurance coverage of abortion, relevant here because of the changes that the ACA has wrought. Prior to the ACA, an estimated eighty-seven percent of private insurance plans covered abortion. (33) This coverage is consistent with insurers' predilection for covering non-experimental, medically necessary procedures. (34) Though Medicaid generally follows the same pattern, it long has been subject to political pressures that alter its otherwise comprehensive coverage of medically necessary care. (35) Thus, as will be discussed further below, Medicaid long has restricted federal funds from being directed to abortion services. (36) This coverage disparity contributes to the ever widening gap in care between poor women and women with financial resources.

      The federal Medicaid payment restriction has pushed many state courts to consider the place of abortion under state constitutions. Thus, thirteen states have recognized, as a matter of state constitutional law, that abortion is a medically necessary procedure requiring funding for poor women. (37) Presented with challenges to restrictions on Medicaid funding of abortions, the courts generally have held that poor women cannot be forced to suffer health-jeopardizing pregnancies by virtue of the state's interest in life. (38) These decisions often emphasize the medical nature of abortion that underlies the impermissible distinctions being drawn for poor women in Medicaid. (39)

      This is not to say that the medical nature of abortion should leave the decision to have an abortion in a doctor's hands, or that health plan coverage of abortion should be limited to so-called...