HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, December 6, 2012

Some thoughts on the ACA and Women's Health

The ACA benefits women in insurance markets through such mechanisms as elimination of preexisting condition clauses, prohibitions on rescission, open access to ob/gyn services, and prohibiting lifetime caps on insurance coverage.  In addition, the Institute of Medicine recommended that contraception be covered as a preventive health service, making it so that millions of women can access key preventive care without cost-prohibitive co-payments (assuming ongoing litigation does not eliminate this essential health benefit.)  These access-enhancing elements of the ACA help women, who statistically are poorer, need more medical care, and live longer than men, to gain access to preventive and regular healthcare and to keep the insurance that they have.  On the other hand, the most common surgical procedure for women in the United States may become more unsafe (especially for poor women), because the ACA prevents insurance payment for abortions through both public and private insurance. 

The Hyde Amendment has attached as a rider to DHHS funding since 1977, and it limits Medicaid and the Children’s Health Insurance Program to paying for abortions when the woman's life (or girl's life) is in danger and in instances of incest and rape.  Thus, poor women have always had a three-front war in reproductive health: they have less access to contraceptives and therefore are more likely to have unintended pregnancies; they are less likely to be able to obtain an abortion because Medicaid almost never pays for the procedure; and few doctors participate in Medicaid, reducing poor women’s ability to find physicians to provide their healthcare.  The ACA helps to address the first problem, but the second and third are complicated by the ACA’s strictures.

State restrictions on private insurance coverage of abortion have existed for a number of years but have not been prevalent.  For example, some states have prevented private health insurers from providing abortion coverage through their general policies; enrollees have to pay separately for an abortion rider on their policies.  Other states refuse to allow abortion coverage for state employees.  And, federal law has facilitated opting out for reasons of conscience that have affected women with private insurance.  The ACA appears to take these private insurance restrictions farther by requiring riders on policies obtained through the health insurance exchanges regardless of whether the exchange is established by the federal government or the states.

The paradox of the ACA is that it creates new obstacles to reproductive health at the same moment that it attempts to improve women’s health.  Treating women’s medical care as a political trading card diminishes the status of women in the polity and has actual ramifications for their health.  This is especially true for the poor and low-income women who rely on Medicaid and who will be relying on the tax subsidies available for purchasing private insurance in the exchanges.   Thus, while the ACA addresses some of the payment problems that have plagued low-income women, it also exacerbates existing access problems.


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