Wednesday, February 9, 2011

Women Rights in Health Care Reform: the unfinished business of civil right?

Keywords or Terms: Women Rights; Abortion; Opposing Viewpoints; Funding Health Care

You’ll imagine that the debate over a woman’s right to her body has been settled in the badly fought civil right litigation on abortion in the fifties and sixties. Many of the recent issues that have arisen over whether the Affordable Health Care Reform Law provides for funding of abortion were debated in the passing of the 2010 Affordable Health Care Reform Law. While there is no disputation over whether federal funds could be used for abortion, since existing federal laws have vehemently said No, women now worry that the new movement in congress over what are in the health care reform law, may deprive them of legitimate abortion. The issue: can a woman seek the termination of a pregnancy under a privately funded insurance policy within the health care reform provision of the Affordable Health Care Reform Law? The new grandstanding regarding defunding or underfunding health care for women whose health may be in jeopardy due to unwanted pregnancies or associated risks of challenging pregnancies, is now threading on the issue of women rights. The blog tonight looks at some opposing views over whether the affordable health care reform law denies health insurance for the coverage of abortion, even when there is no government funds or subsidy of any sort.


For full disclosure purposes: I am neither in any camp nor affiliated with any feminist group. I am neutral and will inform my readers that, apart for two sisters, two daughters and my wife who is still in the child bearing age, my mother is the only other woman I have an avowed allegiance to on the issue of women’s right. However, I am neither holding brief for anyone of them tonight, nor for any woman at that, because I believe they all can stand up for their rights on issues that affect their bodies and welfare. Many women, if not all, can hold their own in the face of antagonism or aggression from immodest lawmakers or what have you.

On any controversial issue, it is very necessary to understand the argument of those who disagree with you. It is probably also safe to assume that those who completely disagree with your point of view have neither reached the Plato of understanding of where you are on the issue or, where you are coming from when you advance passionate and emotional position on the issue. A persuasive argument may then be essential for you to bring everybody, supporters and opponents together; especially, when the issue is funding legitimate abortion as part of the intended reform in the new health care system.

The definition of legitimate abortion here is strictly defined as: Non-gender selective abortion. It is already the law in about three states, including Illinois (1975), Pennsylvania (1989) and the 2009 Law in the state of Oklahoma, prohibiting the performance of abortion solely on the account of sex of the unborn child (House Bill 1595). Legislators in the three states were mindful and concerned about the number of pregnancies, reason and method of abortion, and the nature of the mother’s relationship with the child's father, when a woman seeks abortion services. The issue of possible complications in pregnancies, denial of care of female whose lives may be in danger were rather paramount and none of these states contemplated the issue of private insurance covering the termination of pregnancies.

The Debate

In the heat of the debate over the impending patient protection and affordable care act, the President issued an executive order on March 24, 2010, the body of which is appended below:


By the authority vested in me as President by the Constitution and the laws of the United States of America, including the "Patient Protection and Affordable Care Act" (Public Law 111-148), I hereby order as follows:

Section. 1. Policy. Following the recent enactment of the Patient Protection and Affordable Care Act (the "Act"), it is necessary to establish an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment. The purpose of this order is to establish a comprehensive, Government-wide set of policies and procedures to achieve this goal and to make certain that all relevant actors -- Federal officials, State officials (including insurance regulators) and health care providers -- are aware of their responsibilities, new and old.

The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly created health insurance exchanges. Under the Act, longstanding Federal laws to protect conscience (such as the Church Amendment, 42 U.S.C. 300a-7, and the Weldon Amendment, section 508(d)(1) of Public Law 111-8) remain intact and new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.

Numerous executive agencies have a role in ensuring that these restrictions are enforced, including the Department of Health and Human Services (HHS), the Office of Management and Budget (OMB), and the Office of Personnel Management.

Sec. 2. Strict Compliance with Prohibitions on Abortion Funding in Health Insurance Exchanges. The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014. The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered) and requires State health insurance commissioners to ensure that exchange plan funds are segregated by insurance companies in accordance with generally accepted accounting principles, OMB funds management circulars, and accounting guidance provided by the Government Accountability Office.

I hereby direct the Director of the OMB and the Secretary of HHS to develop, within 180 days of the date of this order, a model set of segregation guidelines for State health insurance commissioners to use when determining whether exchange plans are complying with the Act's segregation requirements, established in section 1303 of the Act, for enrollees receiving Federal financial assistance. The guidelines shall also offer technical information that States should follow to conduct independent regular audits of insurance companies that participate in the health insurance exchanges. In developing these model guidelines, the Director of the OMB and the Secretary of HHS shall consult with executive agencies and offices that have relevant expertise in accounting principles, including, but not limited to, the Department of the Treasury, and with the Government Accountability Office. Upon completion of those model guidelines, the Secretary of HHS should promptly initiate a rule making to issue regulations, which will have the force of law, to interpret the Act's segregation requirements, and shall provide guidance to State health insurance commissioners on how to comply with the model guidelines.

Sec. 3. Community Health Center Program. The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program. Existing law prohibits these centers from using Federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language. Under the Act, the Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers under section 10503 and all other relevant provisions. I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law. Such actions should include, but are not limited to, updating Grant Policy Statements that accompany CHC grants and issuing new interpretive rules.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) authority granted by law or Presidential directive to an agency, or the head thereof; or (ii) functions of the Director of the OMB relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees or agents, or any other person(White House Press Release).

The executive order was issued to ensure that everyone understand where the federal law stands and to re-assure concerned citizens or doubters that the affordable health care reform law was going to provide federal funds for abortion. However, none of the content of this executive order or provisions of the health care reform law specifically denies a woman’s right to abortion covered with private funds. If there were specific provisions regarding a woman’s choice to obtain health insurance that will cover abortion in the soon to be introduced insurance exchanges, the law is ambivalent. In order words, as long as the money used for buying the health insurance comes strictly from private funds, no federal law has been contravened. Can a woman seek health insurance coverage that will afford her opportunity to seek abortion in the course of a complicated and challenging pregnancy? My understanding is, yes. The new movement to deny funding of the provisions of the health care law, just because of suspicion that federal funds may go into procuring abortion or protecting a woman’s right to procure abortion in a situation where her life is in jeopardy, is probably out of order, as it abridges the women’s right to choice, which is probably a civil rights issue.

Critics of the last position could argue that government–controlled programs cannot afford funding of abortion of any kind. A response to which would be: the affordable health care reform law is not a government controlled program as the health insurance coverage or services is still being provided by private health insurance companies. The new reform is designed to reduce government share of funding of the nation’s health care. The reform is designed to make some rather structural and economic deficits in the way health care services were being delivered to Americans. The increased savings from reform to the Medicare and Medicaid programs for the government, as envisaged in the affordable health care reform law passed, is a first step in ensuring that these programs survive for a longer time than is possible under our previous health care system. It is absolutely disingenuous therefore, if anyone classify the new law as a government program or a government take-over of the health care system as is being advanced by Republicans.

When opponents of woman's right to legal abortion advance argument that the affordable health care reform law does not accommodate women choice to seek health insurance coverage for abortion purposes, one begin to wonder whether other selfish considerations are not being interjected. We have had heated debates on woman's right and have often gone away disagreeing on what is good or bad for women with respect to their bodies. The strategy of opponents of women right to abortion is to label any argument in support of women choice, as tantamount to being unchristian, un-Jewish, un-Islamic or caving in to pressure from feminist groups. Many of us in the neutral camp are not in agreement with this strategy and probably see it as a way to deny legitimate rights of women. Our position, the neutral camp, is to allow for all interest groups to contemplate the maitre: do unto others as you want them to do unto you!

Women deserve all the credit for the way they have been pulling together to assert their right under the oppression of a patriarchal ideological movement in congress. Opponents of woman’s right to choice, including the right to obtain health insurance that serves their needs, in the face of possible male aggression, introduces a difficult but justifiable claim, that the issue of denial of woman’s right to obtain health insurance covering abortion, is a civil rights issue. Seeking a rationale to deny women their inalienable right will be tantamount to discrimination on the basis of sex; which the civil rights law of 1964 and subsequent amendments of 1972 and thousands of litigation, have long settled. Using the protestant pedagogy and bourgeois Victorian injunctions, endemic of the far right Pentecostal values that are driving the new call from Republicans to deny women their right to purchase health insurance that serves their needs, is bordering once again on discrimination. Hello?..

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