Editor’s note: This post is a bit longer than our normal blogs, but well worth the read.
Responding to a 2016 request from Congressmembers Diana DeGette and Jan Schakowsky, the U.S. Government Accountability Office (GAO) released a report at the beginning of this year on the status of Medicaid coverage of abortion. Even in the context of federal restrictions on Medicaid coverage of abortion, the report found that actual coverage is worse than it should be. GAO’s main finding was that fifteen states were not complying with federal requirements.
According to a 2018 report by the National Academies of Science, Engineering, and Medicine, abortions are safe and effective health services, including medication abortions. When individuals decide to end their pregnancies, the panel found, they should be able to choose the type of care that will best meet their health needs and situation. Another recent study concluded that restrictions on Medicaid coverage of abortion are an insurmountable barrier to obtaining abortion care. The restrictions fall hardest on low-income people, young individuals, and communities of color, who are disproportionately represented in Medicaid programs.
How does Medicaid cover abortions?
Not too long after the Supreme Court decision in Roe v. Wade in 1973, anti-abortion politicians sought to find ways to restrict abortion as much as possible. Illinois Congressmember Henry Hyde admitted during a floor debate, “I would certainly like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle class woman, or a poor woman. Unfortunately, the only vehicle available is the…Medicaid bill.” Since 1976, an appropriations bill rider known as the Hyde Amendment has restricted federal funding for abortion services except in the narrow circumstances of rape, incest, or life endangerment. The current version of the Hyde Amendment only allows Medicaid coverage when a patient “suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.” Four years after its first passage, the U.S. Supreme Court in Harris v. McRae upheld the Hyde Amendment’s restrictions on federal funding.
“I would certainly like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle class woman, or a poor woman. Unfortunately, the only vehicle available is the…Medicaid bill.”
While the Hyde Amendment has been approved in every Appropriations Act, states may use their own funding to cover abortions past the Hyde Amendment circumstances. Only seventeen states have chosen to use their own state monies to fund abortions in their Medicaid programs. With thirty-three states and the District of Columbia restricting access to Medicaid-covered abortions, more than half of Medicaid-enrolled women– i.e. seven million women of reproductive age–do not have abortion coverage.
How states were violating Medicaid law
The U.S. Government Accountability Office is the non-partisan research arm of Congress. The GAO is important because it supports Congress in meeting its constitutional responsibilities and because it helps to improve the performance and accountability of the federal government. It is therefore noteworthy that the GAO concluded that various states were not complying with Medicaid law and policy by limiting access to abortion coverage.
The report cited multiple violations of federal policy. One state, South Dakota, does not cover abortions in cases of rape or incest, forcing survivors to carry these pregnancies to term. This is nothing new. We knew that South Dakota has been legally and morally liable for at least 26 years. In fact, a South Dakota statute clearly establishes that coverage is only provided to those whose lives are in danger. The Centers for Medicare and Medicaid Services (CMS) sent two letters to South Dakota—one in 1994 and another one in 1998—asking South Dakota to cover abortions under the rape and incest circumstances. In 2014, NHeLP and other advocates reminded CMS of its duty to issue updated guidance reiterating states’ obligation to cover abortion in all the Hyde Amendment exceptions. No such guidance has been issued.
The GAO report also confirmed what advocates have always known: that abortion patients一 including Medicaid enrollees一face an insurmountable number of state legal barriers that prevent abortion access like gestational limits, mandatory counseling, parental involvement, provider availability, stigma and harassment, ultrasound viewing requirements, and waiting periods. These restrictions disproportionately impact people who are already at a disadvantage when it comes to accessing health care, particularly people of color, LGTBQ individuals, and young people.
For the first time, however, the GAO report published concrete evidence that the District of Columbia and thirteen states were failing to cover medication abortion under the circumstances required by federal law and policy. These states were: Alabama, Arkansas, Colorado, the District of Columbia, Florida, Idaho, Kentucky, Missouri, North Carolina, Oklahoma, Rhode Island, South Carolina, Utah, and Texas. Failing to cover medication abortion means that patients lack access to a medical intervention that accounts for more than one-third (39 percent) of all abortions in the United States. Medication abortion use is increasing even when abortion rates are declining because it provides autonomy and privacy for people, including those who are survivors of sexual violence. It also offers an alternative for individuals living in underserved communities, like rural areas. Like all types of abortion care, medication abortion is overwhelmingly safe; the rate of complications is exceedingly low – lower, in fact, than many commonly used medications, including those available without a prescription, such as Tylenol.
Medicaid requires states to cover abortion services for which federal funding is available. The failure to cover medication abortion violates federal law since state Medicaid programs that opt to cover prescription drugs (i.e. all states) must cover all outpatient drugs from any manufacturer participating in the Medicaid Drug Rebate Program. Mifeprex, the drug used to administer medication abortions, has been approved by the FDA; and its manufacturer, Danco Laboratories, has a rebate agreement in place with HHS.
Enforcing the Law
Starting in May of this year, we sent letters to all states that were out of compliance. Texas, Florida, the District of Columbia, Colorado, and Idaho, sent us letters confirming that they are covering or will cover medication abortion in their Medicaid programs. South Carolina also assured our state partner that they were covering medication abortion. During the course of our advocacy, we learned that other states were starting to cover abortions, including Alabama, North Carolina, Kentucky, Rhode Island, and Utah. The following states never responded, nor have we seen any evidence that they committed to changing their practices: Arkansas, Missouri, Oklahoma, and South Dakota.
In our letters to state Medicaid agencies, we expressed that as long as the Hyde Amendment is in place, states must cover abortions for which federal funding is available and Medicaid enrollees should be able to access abortion care like any other covered type of health service. Failure to offer medication abortion not only violates the Medicaid Act, it forces patients to undergo a procedure that may not be the best option for them or to pay out-of-pocket for services that they are entitled to receive.
NHeLP consulted with abortion providers and partnered with reproductive health, rights, and justice advocates, abortion funds, legal organizations, and other state advocates to hold their state Medicaid agencies accountable. Our partner organizations on these efforts are the Colorado Center for Law and Policy, South Carolina Appleseed, Legal Voice, the National Latina Institute for Reproductive Health, Unite for Reproductive and Gender Equity, Charlotte Center for Legal Advocacy, the Arkansas Coalition for Reproductive Justice, the Florida Health Justice Project, the District of Columbia Abortion Fund, the Arkansas Abortion Fund, and the North Carolina Justice Center.
Restrictions on abortion access hinder a person’s ability to access quality care. NHeLP and our partners are committed to ensuring that individuals who are low-income and underserved have access to the full spectrum of reproductive health care, including abortions. We are pleased to report our success in securing Medicaid coverage of abortion but also know that our work is far from done. The next step is making sure that states are complying with the policies. We will continue to work with abortion providers and advocates to ensure swift implementation; for instance, by tracking claims from Medicaid offices. If you know about your state’s failure to comply to Medicaid law, please contact Fabiola Carrión at [email protected].