Commentary on Final Rule : Including “Unborn Children” – “Excluding Pregnant Women.”

On November 1, 2002, the Bush Administration will put into effect its redefinition of the word "child" under the State Children's Health Insurance Program (SCHIP) to include "unborn children," ruling that a "Child means an individual under the age of 19 including the period from conception to birth."

Commentary on 42 C.F.R. Part 457
Including "unborn children" - Excluding pregnant women

On November 1, 2002, the Bush Administration will put into effect its redefinition of the word "child" under the State Children's Health Insurance Program (SCHIP) to include "unborn children," ruling that a "Child means an individual under the age of 19 including the period from conception to birth."⁽¹⁾

This change in the regulation and the interpretation of the SCHIP law was accompanied by 16 pages of text summarizing and responding to 7,783 "comments".⁽²⁾ Overall, the regulations and subsequent actions of the United States Department of Health and Human Services reflects a fundamental contempt for pregnant women and provides a powerful example of duplicitous political action.

As discussed in detail below, the final rule promulgated and adopted by the Department of Health and Human Services, Centers for Medicare and Medicaid Services (hereinafter DHHS) reveals that in key circumstances women's lives and health are a secondary consideration to those of the fetus, or are simply non-existent. Moreover, the new rule has been used successfully as a smokescreen for the health issues the administration should be focusing on. Real concern for public health would require the administration to address the fact that approximately 43 million Americans, including approximately 10 million children, lack health insurance, that only 3.3 million (approximately 57%) of the eligible children (the ones born already) are enrolled in the CHIP program, nationwide, and that the program does not cover pregnant women at all, unless they are under 18.

Bush Administration to Pregnant Women: Only Your fetus is Entitled to Full Health Care Coverage -- You Are Not.

In response to comments expressing concerns that health problems pregnant women may experience, such as skin melanoma, broken bones, mental illness, and other medical diseases or emergencies that do not directly affect the fetus, would not be covered under the new regulation. DHHS explained that this concern was not only justified, but that it was also correct:

Services related to conditions that could complicate the pregnancy include those for diagnosis or treatment of illnesses or medical conditions that might threaten the carrying of the unborn child to full term or the safe delivery of the unborn child. Within these parameters, States have discretion in the services for which coverage can be provided. However, SCHIP eligibility is limited by statute to targeted low-income children and there must be a connection between the benefits provided and the health of the unborn child.⁽³⁾

The Secretary, however, offers this consolation: "We would point out that the regulation is intended to reach individuals who are currently uninsured and who therefore lack access to any services." ⁽⁴⁾ In other words, even if a pregnant woman can't get her fractured leg treated she should feel grateful that she get can get any treatment at all - specifically treatment that values the fetus' health primarily and completely and hers only secondarily and partially.

Bush Administration to New Mothers: Once You Have Delivered That Baby -- You're on Your Own.

Commenters raised the concern that expansion of SCHIP coverage to the unborn child would mean that health care for the pregnant woman after delivery would not be covered. This would leave women without financial coverage for postpartum health problems, such as hemorrhage, infection, episiotomy repair, C-section repair, treatment of other complications after delivery, and counseling for postpartum depression, as well as for family planning.

The Administration quite candidly concedes that:

Commenters are correct that care after delivery, such as postpartum services could not be covered as part of the title XXI State Plan, [SCHIP] (unless the mother is under age 19 and eligible for SCHIP in her own right), because they are not services for an eligible child.⁽⁵⁾

Bush Administration to Pregnant Women: Your Pain is of no Concern to Us

Commenters raised the question of whether analgesia and pain relievers for pregnant women in labor would be covered by the SCHIP expansion to include unborn children.⁽⁶⁾ The answer disturbingly clarifies that such medications would be available but solely because the failure to provide them might result in harm to the fetus.⁽⁷⁾ Moreover, the commentary is equivocal, stating in the passive voice: "we would expect that this coverage would be provided."⁽⁸⁾

Regarding the specific question asked by the commenter, while analgesia given as an epidural and/or intramuscular intravenous injections of pain relievers, and/or anesthesia given as regional or general anesthesia is primarily provided during labor and delivery to relieve the mother's pain from uterine contractions or to perform surgery, that is, C-section, if a woman's pain during labor and delivery is not reduced or properly relieved, adverse and sometimes disastrous effects can occur for the unborn child. There is no question that analgesia/anesthesia is required in order to perform a C-section and such a procedure cannot even be considered if some form of pain relief is not provided. In terms of vaginal deliveries, without relieving the mother's pain from uterine contractions, the progress and labor may be interrupted and not efficient, which in turn can cause fetal complications, such as fetal distress and infection from prolonged labor and prolonged rupture of membranes and other complications. Therefore, we would expect that this coverage would be provided.⁽⁹⁾

This limited coverage for what many consider to be basic, if not essential, treatment for women experiencing childbirth may put health care providers in the untenable position of having to decide whether to deny pain medication to pregnant women whose "unborn children" have nothing to gain from it, or to invent a fraudulent fetal health rationale to justify provision of palliative care to the woman. Separating the justification for treatment necessary for pregnant women from treatment that is necessary for the fetus during childbirth is not only counterproductive to the provision of appropriate medical care, it expresses a fundamental disregard for pregnant women and new mothers.

Secretary Thompson to Pregnant Women: I Was Only Kidding When I Said I Supported Expanded Coverage For you.

Secretary Thompson has repeatedly indicated that he supported proposed legislation that would give the states the option of covering pregnant women in the State Children's Health Insurance Program for the full range of pre-and post partum care.⁽¹⁰⁾ He and the Bush Administration asserted that the redefinition of child to include "unborn children" was not a substitute for such legislation⁽¹¹⁾. Rather, it was an effective administrative strategy that enabled the government, through a relatively simple and speedy regulatory change, to expand prenatal care coverage under the program while more time consuming legislative reform efforts or state waiver applications worked their way through the system.⁽¹²⁾

Now that the regulation has been adopted, Secretary Thomson has done an about face, asserting that there is no longer any need for such legislation. Even though the regulation omits any and all coverage for pregnant women's post-partum care, something he concedes but apparently finds to be of no real consequence,⁽¹³⁾ Secretary Thompson now asserts that legislation that would actually cover pregnant women, including their post-partum care, is unnecessary because it would "duplicate what we have already established as administration policy."⁽¹⁴⁾ Indeed, Secretary Thompson asserts that the regulation that provides coverage for all the health needs of the "unborn child", but for only a fraction of the needs of pregnant women, "is a more effective and comprehensive solution to the issue." "Therefore" he concludes, "there is no need for the Senate to pursue this legislation now."⁽¹⁵⁾

Indeed, the Secretary also concedes that it is likely that only 13 states will in fact take advantage of the new rule.⁽¹⁶⁾ Only 5 states have obtained waivers that will allow them to cover pregnant women under existing Medicaid and SCHIP provisions.⁽¹⁷⁾ This leaves 32 states without expanded coverage for pregnant women. The proposed legislation would enable expansion of coverage to pregnant women in all states.⁽¹⁸⁾ Mr. Thompson, nevertheless, now opposes the legislation.

Additional Disturbing Responses from DHHS

Commenters argued that DHHS was required to interpret and apply the SCHIP legislation consistent with Congress's plain language and clear intent that explicitly applied the statute to children, not embryos and fetuses. The Secretary's response suggests that unless Congress explicitly excludes unborn children, he is free to include them.⁽¹⁹⁾ This, however is not consistent with general rules of statutory interpretation and may herald a new era in which DHHS uses its regulatory power to re-write unborn children into a wide array of federal law.

Commenters also took issue with language in the original announcement and proposal of rule change that lauded fetal surgery as an established and successful medical intervention that would save the government money in the long run.⁽²⁰⁾The commenters, among them Pregnancy Justice, noted that fetal surgery is experimental, has very little proven efficacy, and that there is no evidence that it saves costs.⁽²¹⁾

The Secretary admitted: "We do not have data that fetal surgery can ultimately lower postpartum medical care costs and did not make this assertion."⁽²²⁾ However, in the proposed rule DHHS stated:

Once detected, such conditions can often be surgically or medically treated in utero, with beneficial consequences ... and ultimately lower post-partum medical care costs for the child and therefore the SCHIP plan. The Secretary would like to permit the States the flexibility to pay for the medical expenses related to unborn children because the Secretary has determined that provision of such services before birth should result in healthier infants, better long-term child growth and development and ultimate cost savings to the SCHIP plans (and the federal government through the SCHIP contribution process) through reduced expenditures for high cost neo-natal care.⁽²³⁾

The Secretary failed to address why it is that the country's leading health agency would make unsupported claims regarding the benefits of procedures that not only do not have proven efficacy, but which, as they now concede, would be covered only at the discretion of the States which do not, as a general rule, cover experimental procedures.⁽²⁴⁾

Commenters also noted that low-income women would be forced to apply for benefits that effectively require them to prioritize fetal health over their own and that for some this may be experienced as adopting a particular religious view of when life begins.⁽²⁵⁾ DHHS takes the position that whether or not a woman applies for these benefits is simply a choice left up to the individual woman. This response suggests little sensitivity to the real life experiences of low-income women and families in America today, ignoring the fact that government decision-making that directly affects access to income and health care in this country leaves many women without any choice at all.⁽²⁶⁾

Application for SCHIP benefits is voluntary, and there is nothing in the SCHIP statute that forces a mother to accept SCHIP benefits. While it is certainly possible that acceptance of SCHIP benefits for an unborn child may be contrary to some women's religious beliefs, we do not believe this should preclude States from offering such benefits. If a woman has a religious objection, she simply would not accept SCHIP benefits.⁽²⁷⁾

Women's and children's health advocates might take comfort in is the fact that the Federal Register repeatedly reassures us that the regulation will not alter the relationship between the pregnant women and her doctor. ⁽²⁸⁾ In at least five different places in the final regulations, the commentary to the final rule states:

...Nothing in this rule is intended to affect the traditional relationship between the pregnant mother and the physician. Questions of medical treatment for the pregnant woman and/or her unborn are a decision between the pregnant woman and her physician and nothing in this rule would circumvent or alter that relationship.⁽²⁹⁾

Presumably this means DHHS does not intend to set a precedent that will allow the government, the potential father of the fetus, or anyone else to interfere with a pregnant woman's right to make her own medical decisions - this includes the decision to accept treatment that could potentially harm the fetus, such as various cancer treatments, to decline tests designed to assess the health of the pregnant woman or fetus (including drug and alcohol tests), or to refuse medical procedures that are presumed to be beneficial to the fetus. Nevertheless, by limiting funding to only those things that will benefit fetal health - the regulation does necessarily "interfere with women's autonomy to make medical care decisions."

Footnotes

1. State Children's Health Insurance Program; Eligibility for Prenatal Care and Other Health Services for Unborn Children; Final Rule, 67 Fed. Reg. 61955-61974 (2002) (to be codified at 42 C.F.R. pt. 457)
2. See Id. at 61957 - 61973. According to the Secretary a majority of these comments were "form letters that were part of write-in campaigns." Final Rule, 67 Fed. Reg. 61957. The Federal Register does not state whether these form letters supported or opposed the proposed change in the regulation.

3. Final Rule, 67 Fed. Reg. 61968.
4. Id.
5. Final Rule, 67 Fed. Reg. 61969.
6. See Final Rule, 67 Fed. Reg. 61968.
7. See id.
8. Id.
9. Final Rule, 67 Fed. Reg. 61968
10. See e.g. 148 Cong. Rec. S9825-6 (daily ed. Oct. 2 2002) (statement of Mr. Bingaman)

    ...Secretary Thompson is in very strong support of the passage of S. 724, and he has said so publicly. ... [A letter from Secretary Thompson was printed in the record where the Secretary stated] "[a]s I testified recently at a hearing held by the Health Subcommittee of the House Energy and Commerce Committee, I also support legislation to expand SCHIP to cover pregnant women. However, because legislation has not moved and because of the importance of prenatal care, I felt it was important to take this action..."

    See also Mark up a substitute for: I. A substitute for S. 321, the Family Opportunity Act of 2002, II. A substitute for S. 724, the Mothers and Newborns Health Insurance Act of 2002, III. A substitute for S. 1971, the National Employee Savings and Trust Equity Guarantee Act; Before the Senate Comm. on Finance, 107th Congress, 2nd Sess. 2 (2002) (statement of Senator Max Baucus, Chairman).

    The administration has recognized the need to cover pregnant women whose children will be eligible for CHIP. In January, the Department of Health and Human Services issued a proposed rule that would change the definition of "child" to include fetuses. This rule would allow low-income pregnant women to receive prenatal services through CHIP. But Secretary Thompson has made it clear that this was intended only as a temporary, second-best approach. He has repeatedly testified that the Administration supports legislation to expand CHIP to cover pregnant women.

11. See e.g. S.724, 107th Cong., 1st Sess. (2001); Start S.1016, 107th Cong., 1st Sess. (2001).
12. HHS Press Office, United States Department of Health and Human Services, "States May Provide SCHIP Coverage for Prenatal Care: New Rule to Expand Healthcare for Babies, Mothers," September 27, 2002.

    "With this new regulation, states can offer prenatal coverage immediately -- without waiting for HHS to consider and approve a waiver," Secretary Thompson said. "It represents a speedy new option for states that want to do more to ensure that women get critical prenatal care that will increase the chances that their children are born healthy."

    https://www.hhs.gov/news/press/2002pres/20020927a.html (Visited October 27, 2002) Even the commentary that accompanies the new regulation creates the impression that the redefinition of child is not a substitute for legislation designed to ensure that pregnant women themselves are covered:

    This regulation bridges a gap in eligibility between the Medicaid and the SCHIP programs that has now existed for five years. Members of the Congress have also recognized this gap and have introduced various pieces of legislation over the years to address this gap. The opportunity to expand vital health insurance coverage during a critical time is at handŠ. Our regulation is simply an option to make it faster and easier for States that want to use SCHIP funds to expand prenatal services for low-income women and to do so without having to go through the 1115 process or wait for the passage of legislation.

    Final Rule, 67 Fed. Reg. 61958.

13. In a Letter to Senator Jeff Bingaman, Secretary Thompson states; "A great deal of thought went into the regulation, and, with the exception of postpartum care after hospitalization, we were able to give the states the same flexibility they would have under the proposed legislation to provide prenatal and delivery care to unborn children and their mothers." Letter from Secretary Tommy G. Thompson, U.S. Department of Health and Human Services to the Honorable Jeff Bingaman, United States Senate (October 15, 2002) (on file with Pregnancy Justice).
14. Letter from Secretary Tommy G. Thompson, U.S. Department of Health and Human Services to the Honorable Don Nickels, United States Senate (October 8, 2002) (on file with Pregnancy Justice).
15. Id.
16. "We estimate that 13 States will elect to include this definition in their State plans." 67 Fed. Reg. 61974.
17. See Final Rule, 67 Fed. Reg. 61958.
18. See S. 724, supra; S.1016, supra.

19. "[B]ecause while Congress did not expressly include unborn children, Congress did not exclude them either." See Final Rule, 67 Fed. Reg. 61962.
20. See Final Rule, 67 Fed. Reg. 61970.
21. See id.
22. Id.
23. State Children's Health Insurance Program; Eligibility for Prenatal Care for Unborn Children, 67 Fed. Reg. 9936-9939 (2002) (to be codified at 42 C.F.R. pt. 457) (proposed. Mar. 5 2002).
24. Proposed Rule 67 Fed. Reg. 9937; Final Rule 67 Fed. Reg. 61967-70.
25. See State Children's Health Insurance Program; Eligibility for Prenatal Care and Other Health Services for Unborn Children, Final Rule, 67 Fed. Reg. 61963 (2002) (to be codified at 42 C.F.R. part. 457).
26. See e.g., Paul Krugman, The End of the Middle-Class, N.Y. Times Magazine (October 20, 2002) at 62; Ricki Solinger, Beggars and Choosers: How the Politics of Choice Shapes Adoption, Abortion, and Welfare in the United States (2001); Cf. Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980). See also Beal v. Doe, 432 U.S. 438 (1977) (concluding that excluding coverage for abortion services from otherwise comprehensive medical programs for low income people does not violate the Constitution in part because the government did not create the financial obstacles that poor women face in seeking this form of health care.)
27. See Final Rule, 67 Fed. Reg. 61963.

28. See Final Rule, 67 Fed. Reg. 61968, 61970.
29. Id.