Giving Birth Under the Aca: Analyzing the Use of Law as a Tool to Improve Health Care

• Publication year: 2021

94 Nebraska L. Rev. 799. Giving Birth Under the ACA: Analyzing the Use of Law as a Tool to Improve Health Care

Giving Birth Under the ACA: Analyzing the Use of Law as a Tool to Improve Health Care

Elizabeth Kukura(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 800

II. Overview of Maternity Care in the United States ...... 803
A. High Costs and Poor Outcomes: Demonstrating the Urgent Need for Maternity Care Reform ........... 803
B. Understanding the Landscape of Childbirth ........ 808

III. The ACA and Maternity Care ......................... 814
A. The ACA's Significant Expansion of Access to Maternity Coverage ............................... 816
1. ACA Reforms that Apply Regardless of Coverage Source ......................................... 817
2. ACA Reforms that Apply to Particular Modes of Coverage ...................................... 821
a. Individual Market ......................... 821
b. Medicaid ................................... 824

B. The ACA's Improvement of Maternity Care
Benefits ........................................... 826
1. ACA Reforms that Apply Regardless of Coverage Source ......................................... 827
2. ACA Reforms that Apply to Particular Modes of Coverage ...................................... 829
a. Individual Market ......................... 829
b. Private Insurance (Individual and Employer-Sponsored)................................. 832
c. Medicaid (and Medicare)................... 833

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C. The ACA's Investments in Better Care Through Programmatic and Policy Initiatives ............... 835

IV. Assessing the ACA's Impact on Maternity Care: Enhancing Coverage Without Shifting Culture ......... 838
A. The Need for Payment Reform in Maternity Care . . 840
B. Improving Outcomes Requires Practicing Evidence-Based Maternity Care ............................. 846
C. Transforming Birth by Elevating Midwives as Primary Maternity Care Providers ................. 851

V. Conclusion: Reflections on Law as a Tool to Improve Health Care .......................................... 856

I. INTRODUCTION

Confronting a host of shortcomings in the health care system related to access, quality, and cost, Congress passed the landmark Patient Protection and Affordable Care Act (ACA) in 2010.(fn1) Contained within over 900 pages of legislation are numerous provisions that impact maternity care in beneficial ways. But although much ink has been spilled exploring the ACA's impact on reproductive health in the form of the contraceptive coverage mandate and the exclusion of coverage for abortion care, scholars have directed little attention to the Act's impact on maternity care either as an essential matter of reproductive health or a vital component of the country's health care delivery system. Childbirth is big business in the U.S., constituting the most common reason for hospitalization and the source of more hospital charges than any other condition. With 85% of women giving birth during their lives, the vast majority of people encounter the maternity care system and rely on maternity care providers to tend to the health of women and their babies. How maternity care is delivered matters tremendously, not only because childbirth is transformational, but also because the steep cost of having a baby makes high-quality maternity care an issue of financial security for American women and their families.

This Article helps fill a gap in the scholarly discussion of the ACA with a comprehensive analysis of how the Act impacts health care for childbearing women,(fn2) looking not only to provisions that have ex-

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panded access to care but also to reforms and investments directed at long-term change. This analysis provides a springboard for considering further legal and structural reforms necessary to build a maternity care system that uses resources more efficiently and effectively. Researchers and advocates concerned with childbirth in the U.S. have identified a crisis in the maternity care system.(fn3) With nearly one-third of babies born by cesarean,(fn4) a maternal mortality rate in the U.S. that ranks sixtieth in the world,(fn5) and an infant mortality rate higher than those of twenty-six other countries,(fn6) there are various economic, legal, political, and social factors contributing to the inadequate performance of the nation's maternity care delivery system. While the ACA's expansion of maternity coverage to millions more women is a significant development in the quest for better outcomes, greater insurance coverage and access to medical care are not necessarily sufficient for improving health. The kind of care provided and who delivers it shape the course of pregnancy and birth. Furthermore, the way maternity care is paid for influences what care is available and the manner of its delivery by establishing background norms about the value of particular forms of care and creating incentives that privilege certain approaches over others.

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In identifying the need for systemic maternity care reform beyond the ACA, this Article argues that achieving optimal maternity care requires several related shifts in the culture surrounding childbirth- both within the medical community and in society at large. Typical twenty-first-century childbirth in the U.S. reflects a socially constructed understanding of birth as a medical event, fraught with risk and fear of complications, rather than a normal, physiologic process female bodies are well-constructed to perform. The notion of childbirth as pathological-understood as an illness or condition to be con-trolled-originated with physicians in the nineteenth and early-twentieth centuries who, in organizing as a professional class of obstetricians, sought to distinguish themselves from midwives, who traditionally served as birth attendants, and convince patients they needed physician care during childbirth.(fn7) A medicalized conception of childbirth seeped into the larger culture and has become a self-reinforcing norm. Medical tinkering with the birthing process necessitates further technological intervention, and fewer people-whether physicians or pregnant women-are exposed to normal birth; unmediated, physiologic birth has become the exception, rather than the rule. Economic pressures associated with hospital management, the cost of malpractice insurance, and the time-intensive nature of attending births reinforce and exacerbate the medicalization of childbirth by incentivizing the use of labor and delivery practices that increase medical management and intervention.

Thus, while expanding access to maternity care at a reasonable cost will undoubtedly improve health outcomes, a truly health-affirming (and cost-effective) maternity care system requires a fundamental shift in how care is delivered. This Article identifies three areas where structural reform is imperative: (1) revamping payment systems to eliminate misaligned incentives; (2) adopting evidence-based medicine in maternity services; and (3) promoting the midwifery model of care-highlighting how the ACA makes modest commitments in each context, while leaving much work left undone. First, maternity care reimbursement policies should be reformed to reduce the risk that financial incentives will lead to unnecessary medical intervention in labor and delivery. Payment systems should also be adjusted to encourage collaboration between midwives and physicians. Second, health care providers, policymakers, and other stake-

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holders should prioritize the identification and adoption of evidence-based maternity care practices in order to eliminate the use of ineffective and harmful practices that increase costs and create unnecessary complications. Third, midwifery should be fully accepted as a safe, cost-effective option for women with low-risk pregnancies, and barriers to midwives' participation in mainstream maternity care should be eliminated through legal and policy reform. Though certainly not exhaustive, these initiatives suggest a roadmap for creating the cultural shifts required to achieve an optimally functioning maternity care system. Each area of focus requires the reshaping of norms through legal and non-legal methods, raising questions about the type of change law can effect in the way medicine is practiced and health care is delivered. With these questions in mind, the Article concludes by reflecting on law as a vehicle for influencing social and cultural norms in the health care context.

Part II provides an overview of maternity care in the U.S., highlighting the degree to which childbirth is a significant component of the health care economy, and illustrating where and how birth occurs in twenty-first-century America. Part III turns to the ACA, examining the major contributions the Act makes to improving maternity care through expanded access to coverage, improved insurance benefits, and various programmatic and policy investments. Part IV explores the limitations of the ACA in producing structural changes to maternity care and identifies three areas where advocacy has the potential to change the social norms and values that shape the childbirth experience, resulting in better care for women and babies and more cost-effective use of maternity care resources. The Article concludes by suggesting that maternity care presents a useful case study for theorizing the utility of law as...