How will access to contraception coverage fare in light of the ACA repeal?

With the uncertainty about continued contraception coverage, a number of states have either enacted or introduced legislation to ensure that individuals continue to have access to contraception coverage and the number of women inquiring about birth control has increased. Since the November election and, in the wake of the imminent repeal of Obamacare, requests for intrauterine devices (IUDs) have been increasing significantly. Cecile Richards, President of Planned Parenthood, told CNN on January 9, 2017, that the demand for IUDs, a form of long-term birth control, has shot up 900 percent at Planned Parenthood branches because women “are desperately concerned that they will lose their access to health care,” SFGate news reported.

A December 7, 2016, Kaiser Family Foundation report that addressed private insurance coverage of contraception stated that many states have mandated minimum benefits for decades, including contraceptive coverage. Moreover, since the passage of the Affordable Care Act (ACA) (P.L. 111-148), states have strengthened and expanded the federal contraceptive coverage requirement. Among those states that have recently adopted contraceptive laws expanding ACA mandates for contraceptive coverage are New York, California, Oregon, Illinois, and Vermont.

New York

On January 11, 2017,  New York Attorney General Eric T. Schneiderman introduced “The Comprehensive Contraception Coverage Act of 2017” (CCCA), legislation that would provide access to cost-free contraception for women and expand coverage to men to ensure the continuation of contraception coverage under state law in light of Republicans’ goal of repealing the ACA.  The CCCA would (1) statutorily require state-governed health insurance policies to provide cost-free coverage for all FDA-approved methods of birth control, including emergency contraception, (2) prohibit insurance companies from “medical management” review restrictions that can limit or delay contraceptive coverage; (3) cover men’s contraceptive methods and bring their insurance coverage in line with the benefits enjoyed by women; and (4) allow for the provision of a year’s worth of a contraceptive at a time.

Crain’s New York Business addressed a number of items that are at stake in terms of women’s access to health care in New York under Donald Trump’s presidency. Although New York’s contraception legislation “has taken on new urgency for advocates since Trump’s victory,” the bill faces opposition from insurers because the provisions go beyond the ACA mandates, Crain’s predicted. In addition, Crain’s pointed out that Republicans in Congress will renew their efforts to defund Planned Parenthood, noting that access to services such as breast exams, Pap tests, STD screenings and family planning are most likely at risk of elimination for female Medicaid enrollees. Finally, abortion rights in New York might be curtailed if President-elect Trump’s Supreme Court judge appointee provides the Court with a majority of votes to overturn Roe v. Wade, the case that affirmed a woman’s constitutional right to an abortion under the 14th amendment. New York state law allows an abortion after 24 weeks only if it’s a matter of life and death for the woman, while constitutional law allows a woman to get a late-stage abortion if an anomaly poses a serious risk to her health or makes the fetus unviable, Crain’s explained.

Other States

In 2014, California passed the Contraceptive Coverage Equity Act of 2014 that requires plans to cover prescribed FDA-approved contraceptives for women without cost-sharing. In April of 2016, under the law, girls and women are able to drop by their neighborhood pharmacy and pick up birth control such as pills, patches, and injections without a doctor’s prescription but must speak with a pharmacist and fill out a questionnaire. Starting in January 2016, health plans were required to provide access to the full range of contraceptive methods approved by the FDA, including a variety of IUDs, for all insured individuals without cost-sharing, delays, or denial of coverage.

In 2015, Oregon passed two laws in 2015  expanding women’s access to birth control that became effective January 1, 2015.  HR2879 permits pharmacists to prescribe hormonal contraceptive patches and self-administered oral hormonal contraceptives, while HR3343 requires insurers to pay for a three-month supply of contraceptives when first prescribed, followed by a 12 month supply of contraceptives regardless of whether the woman was insured by the same plan at the time of the first dispensing. This law applies to oral contraceptive pills, the patch, and the vaginal ring.

The State Journal Register reported that Illinois adopted House Bill 5576, which will take effect January 1, 2017. Under the law, all ACA options must be covered without co-payments or deductibles, at least for women covered through health plans regulated by the state and plans that cover state employees, retirees, and their dependents. In addition, insurance companies must allow women to get a 12 month supply all at once.

The Burlington Free Press reported that Vermont legislation includes mandates from the ACA in the state law, but also expands upon the mandates to include additional birth-control methods, such as vasectomies. The bill specifies the 12 contraceptive products and services that must be included in health insurance plans as well as restrictions on cost-sharing for contraceptive services. It directs the Department of Vermont Health Access to establish 15 value-based payments for the insertion and removal of long-acting reversible contraceptives comparable to those for oral contraceptives.

Conclusion

Whether Congress repeals the ACA mandates requiring health insurance plans to provide contraceptive coverage and defunds Planned Parenthood is not certain. As of this writing, Congress has already taken initial steps to repeal the law. It remains to be seen if the actions the states have taken to ensure that both men and women have access to contraception under state law will hold up, and whether states that have introduced bills to ensure coverage will progress to enactment in the face of strong opposition.

 

HHS finalizes regulations prohibiting state discrimination against abortion providers

Recipients of Title X Grants for Family Planning Services making subawards cannot restrict participating entities for any reason other than the entity’s ability to provide Title X services, under a new Final rule that will publish on December 19, 2016. The regulatory change was motivated by recent state-imposed restrictions and prohibitions against entities that provide abortions from receiving Title X funds. By statute, Title X funds cannot be used by programs that allow abortion as a method of family planning (42 U.S.C. §300a-6); such programs also cannot be required to perform or assist in the performance of an abortion, nor discriminate against an employee who performs or assists or refuses to perform or assist in the performance of an abortion (42 U.S.C. §300a-7). The regulations will be effective on January 18, 2017, two days before the inauguration of President-elect Donald Trump (R).

Title X

Title X of the Public Health Service Act (42 U.S.C. §§300–300a-8) created the Family Planning Program, which provides funding to nearly 4,000 community-based clinics that provide high quality, affordable, and cost-effective family planning and related preventive health services for women and men, with priority given to low-income patients. In 2015, more than 4 million individuals received services from Title X Family Planning Clinics.

Recipient restrictions

Section 2303 of 2010’s Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) expanded family planning services for certain Medicaid beneficiaries. Soon thereafter, however, family planning organizations began facing funding challenges. According to the Final rule, 13 states have taken action since 2011 to restrict funding to abortion providers, and entities which do not provide abortion services but are affiliated with organizations—such as Planned Parenthood—which provide abortions at some facilities. These restrictions have affected family planning clinics both as subrecipients of Title X grants and as Medicaid providers, leading to decreased access to providers and limitations in the geographic distribution of services.

These restrictions led to litigation (see, e.g., (see Court grants preliminary injunction reinstating Planned Parenthood’s provider agreement with Alabama, Health Law Daily, October 29, 2015; Medicaid termination denied because Planned Parenthood is qualified, Health Law Daily, November 4, 2015; Patients’ provider choice rights violated by exclusion without cause, Health Law Daily, April 19, 2016), and HHS action telling states to end such restrictions (see States warned not to exclude qualified providers, especially family planning, Health Law Daily, April 20, 2016; No limits on choice of provider, contraceptive method for Medicaid enrollees, Health Law Daily, June 16, 2016). HHS also began granting Title X funding directly to providers as sole source replacement grants following the imposition of state restrictions (see Direct award Title X grant documentation properly withheld by HHS, Health Law Daily, February 5, 2015).

Regulatory changes

Earlier this year, HHS’ Office of Population Affairs published a Notice of proposed rulemaking in the Federal Register, declaring its intent to amend current Title X regulations to preclude project recipients from using criteria in their selection of subrecipients that are unrelated to the ability to deliver services to program beneficiaries in an effective manner (81 FR 61639, September 7, 2016). Approximately 91 percent of the 145,000 comments the agency received on the proposed regulations were in favor of the amendment.

In response to negative comments, the Final rule explained that there is no evidence that certain Title X funding recipients—Planned Parenthood, specifically—have engaged in Medicaid fraud, and pointed to research finding that every grant dollar spent on family planning saves an average of $7.09 in Medicaid-related expenditures. The Final rule similarly responded to commenters concerned that Title X service providers would use Title X funding to fund abortion by reiterating the statutory and regulatory requirements that prevent Title X funds from being used for abortions, and said that family planning services help prevent abortions by preventing unintended pregnancies.

Will the change last?

The Final rule was promulgated in accordance with notice-and-comment requirements under the federal Administrative Procedure Act, and its changes were announced months ago, which may prevent it from being considered a “Midnight Rule.” According to the New York Times, repealing these regulations would require either a new comment-and-notice rulemaking process, or a joint resolution of disapproval by the House and Senate, with concurrence by the new president. Both supporters and opponents of family planning services are preparing to fight for or against the regulations, while President-elect Trump, who has promised to repeal many of the Obama Administration’s regulatory actions, offered contradictory messages on Planned Parenthood and abortion during his presidential campaign.

Next abortion legislation arguments will use mixed evidence on fetal pain

Reproductive health issues have long been controversial, and one law professor believes that the next wave of abortion restriction legislation and court cases will take a new approach by discussing the effects of abortion on the fetus. In an article published in the New England Journal of Medicine, Professor R. Alta Charo projects that, because the recent arguments supporting abortion restrictions focusing on women’s safety were shot down due to medical evidence, the focus will turn to the effects on the fetus.

New focus on evidence

The recent U.S. Supreme Court decision Whole Woman’s Health v. Hellerstedt shot down a Texas law requiring physicians performing abortions to have admitting privileges at local hospitals while reasoning that the procedures have become so safe that such a requirement is not necessary. This reasoning signals a shift in court thinking and a new willingness to dive into the medical evidence surrounding the issue rather than defer to the legislature on factual issues. Charo pointed out that in 2007, when the Supreme Court upheld a statute banning dilation and extraction based on the legislature’s findings that such a procedure is not necessary to protect a woman’s health, the Gonzales v. Carhart opinion accepted the legislature’s factual findings because of mixed evidence. Even so, the opinion indicated that the court had a duty to review the facts underlying decisions involving constitutional rights.

Next steps

Charo believes that a shift will occur because medical evidence does not support the argument that abortion is unsafe and presents significant health risks to women. This shift will involve claims that a fetus can feel pain about 20 weeks after conception, based on fetal movement and hormonal activity in response to stimuli and stress. Charo observed that there are growing efforts to require fetal anesthesia, outlaw second-trimester use of dilation and evacuation, and prevent abortion starting at 20 weeks following conception. The opportunity arises for a legislature to state that medical opinion is mixed in light of studies showing that a fetus cannot feel pain due to the development timeline until almost 30 weeks. Charo believes that the Gonzales decision prioritized fetal concerns over women’s health and that that the opportunity may arise again. However, Whole Woman’s Health presents the possibility that the court will consider further evidence rather than deferring to the legislature’s fact finding.

Zika’s potential impact on abortion legislation in Latin America

The Zika virus has been a hot topic in the news, with reactions varying from panic to dismissal. The biggest concern surrounding the disease is the potential for severe birth defects in children born to women who were infected while pregnant, which has stirred up the always-controversial topics of reproductive rights and decisions.

Virus

Like dengue and chikungunya, Zika is spread through mosquito bites. The virus symptoms themselves are surprisingly mild. The Centers for Disease Control and Prevention (CDC) reports that common symptoms are fever, rash, joint pain, and red eyes lasting up to a week. Only about one in five people who are infected with the virus actually develop Zika, and those that do are simply encouraged to get rest, take acetaminophen, and drink fluids.

Where is it?

Zika outbreaks were noted in Africa, Southeast Asia, and the Pacific Islands prior to 2015. The virus was first identified in Brazil in May 2015, and has been reported in many other South American countries. Although no locally transmitted cases have been noted in the U.S., it has been brought into the country by those infected elsewhere. Local cases in Puerto Rico, the Virgin Island, and American Samoa have been detected.

The particular species of mosquito known to carry Zika, Aedes aegypti, is not as prevalent in the U.S. as more southern countries because it prefers tropical and sub-tropical climates. However, some studies have found that the Aedes is common in Louisiana, Florida, some areas of Texas, and is sometimes seen as far north as New York in the summer.

Pregnancy

The major discussion surrounding Zika has stemmed from reports of a serious birth defect and “other poor pregnancy outcomes” in babies born to mothers who were infected while pregnant. Microcephaly, a condition in which a baby’s head size is significantly reduced, has been linked to the virus. According to the Mayo Clinic, microcephaly usually causes the brain to develop abnormally or fail to grow as expected, often causing developmental delays. As a result of these concerns, the CDC and other agencies recommend that women who are pregnant avoid traveling to areas where Zika is known. The first confirmed pregnancy case in Europe was recently found in Spain, where a woman recently returned from Colombia.

Controversy

The talk of Zika and potential serious birth defects has brought up a discussion regarding abortion laws, especially in heavily religious countries like Brazil where abortion is illegal in most cases. According to the New York Times, a case is already being prepared to fight for pregnant women to have the option for an abortion when microcephaly is discovered, and a judge has already expressed support for that side of the issue. Other groups are speaking up about keeping the restrictions as they currently are, or making abortions still harder to obtain. Some are recalling the legal battles in the U.S. surrounding abortions when it was discovered that contracting rubella during pregnancy would result in “damaged children”—an article published in the Wall Street Journal in 1966 sounds eerily similar to the discussion today. The Therapeutic Abortion Act, enacted during the rubella scares before a vaccine was developed, made California the first state to legalize abortion, with restrictions.

Those pushing for easier access to abortions note that contraception is particularly hard to obtain in Latin America. In addition, the culture often allows men to call the shots on how large a family becomes. Even though El Salvador’s government advised women to postpone pregnancy for two years, those studying family planning in the reason state that such actions are simply not feasible for many women—especially considering that clinics in five countries in the region exhausted their contraceptive supplies in 2015. Maternity and labor and delivery care are also hard to come by especially for the poor, resulting in many women giving birth outside of a medical facility. Sources have reported that millions of women have sought unsafe abortions in the region, often resulting in further health issues.