Hyde’s Restrictions on Abortion Are Unacceptable
Hyde’s Restrictions on Abortion Are Unacceptable
As Efforts Continue To Eliminate the Amendment, We Must Work To Blunt Its Negative Impacts
While it is critical that Congress works to codify the promise of Roe v. Wade and ensure equitable access to abortion care, the federal government must take what steps it can now under the scope of the Hyde Amendment to increase access to care and protect patients.
[The Hyde Amendment is] designed to deprive poor and minority women of the constitutional right to choose abortion.U.S. Supreme Court Justice Thurgood Marshall
The appropriations rider known as the Hyde Amendment, originally enacted in 1976 and passed annually ever since, has dramatically limited insurance coverage of abortion care in America for decades. The current incarnation of the amendment prohibits the use of federal funds to cover abortion except in cases of life endangerment or if the pregnancy was the result of rape or incest. In those circumstances, coverage is required as a medically necessary health service.
Even so, states have acted to try to make care inaccessible even in those circumstances, as detailed by the U.S. Government Accountability Office. South Dakota, for example, refuses to comply with federal standards, and many more states require burdensome process steps prior to covering this medically necessary care, severely constraining access. Complicating matters, only 16 states use state funds to cover abortion more broadly, despite such funding being fully permissible.
In America’s post-Roe reality, states loom large in determining abortion legality and access, while the federal government currently has limited options for improving access to care. To rectify this state of affairs, it is imperative that Congress act to codify the promise of Roe v. Wade and ensure that abortion coverage is available to everyone, as reflected in bills such as the Women’s Health Protection Act and the Equal Access to Abortion Coverage in Health Insurance Act.
But even as Congress considers this codification legislation, the federal government has some scope to improve access now—as demonstrated by a series of executive orders and administrative guidance, some of which are noted below. In regard to Hyde, it should also take the following actions:
- Enforce current federal requirements that are being flouted by some states.
- Ensure that all patients eligible for care under Hyde, both for abortion and other critical reproductive health services, can access abortion.
- Ensure that access to care can be extended to everyone who enters a state where abortion is legal, in an attempt to limit wait times at abortion clinics in these states as they absorb patients fleeing states hostile to abortion care.
In this moment, all available means to increase access to care and protect patients must be promulgated as permissible within existing law, regardless of the extent of disagreement with current restraints on federal funds.
More than a dozen states require broadly that an act of rape or incest that results in pregnancy be reported to law enforcement or another government agency before abortion care is allowed, despite a lack of such mandates under Hyde’s rape and incest exceptions. Rape is the most underreported crime, and while some mandatory reporting requirements under state laws can serve an important purpose, Hyde’s additional, broad reporting requirements can serve to deny or delay care and complicate an already tragic situation.
Hyde mandates that for abortion care provided to protect the life of a patient, providers must certify that the abortion is necessary. The specifics are left to the states, with some requiring the submission of detailed information to justify the physician’s decision. Such burdensome reporting requirements can lead to delays in care, as providers know that, unlike with other circumstances in which emergency care is needed, the state can be empowered to question the doctor’s judgment as a matter of course even when all medical professionals—and the patient—feel a proper standard of care has been followed.
Finally, it is important to note that fear of running afoul of Hyde can also have a chilling effect on providers’ willingness to offer other types of reproductive care, either before or after an abortion, despite the permissibility of such care.
Hyde has exacerbated health and economic inequities
Hyde has compounded health and economic inequities across the country. This is particularly true for the 7.8 million women of reproductive age, half of whom are women of color, enrolled in Medicaid in the 34 states (as well as the District of Columbia) that do not provide comprehensive coverage of abortion. As a result, approximately 1 in 4 women on Medicaid who seek abortion are instead forced to give birth.
The Hyde Amendment’s prohibition of federal funds for abortion except in limited circumstances was first applied to the Medicaid program, targeting the poorest Americans from the beginning. Congress eventually acted to expand the reach of the prohibition to others insured under federal government programs, including federal employees, Peace Corps volunteers, and members of the military. The restrictions also apply to the more than 900,000 women of reproductive age enrolled in Medicare. The majority of these women are “dual eligible” individuals, in that they are eligible for both Medicare and Medicaid. For women of reproductive age, this population can include those with end-stage renal disease or disabilities.
Research has shown that those who are denied a desired abortion are more likely to fall into poverty, face unemployment, and have worse health outcomes, magnifying Hyde’s harms. These repercussions can have an intergenerational impact, as the majority of those who seek abortion care are already mothers.
Ensure availability and coverage of all Hyde-permissible abortion care
Even when care should be allowed under Hyde, it can be difficult—if not impossible—to access. Guidance to help streamline billing processes and best practices could help bolster the availability of abortion to those who qualify for it even in states hostile to abortion.
For example, the administration could take the following steps:
- Clarify processes for states’ coverage of abortion costs under Hyde: This should include guidance on how to interpret, as clearly as possible, the life exception to Hyde so that patients’ lives are not unnecessarily put at risk. Any efforts could be taken in partnership with independent medical experts, such as the Society of Maternal Fetal Medicine. The government should also issue guidance that would ensure the standardization of information physicians need to report when an abortion is considered medically necessary, so that such reports are not overly burdensome. In addition, the government should align the standards for allowing exceptions for rape and incest survivors to those under the “life of the patient” exception and also allow a provider’s certification to suffice for coverage for purposes of satisfying Hyde’s standards.
- Address so-called “dual eligible payment” issues: Dual-eligible individuals receive health coverage through Medicare and Medicaid. When these women receive care, federal law requires Medicare to pay first. And despite the existence of a Medicare rate for abortion, advocates and providers too often report an inability to receive payment or even a denial for dual-eligible patients. While generally considered a program for older adults, Medicare also covers younger individuals with severe disabilities. Yet too often, these individuals face multiple hurdles to obtaining abortion care; figuring out how to cover abortion costs compounds their challenges immeasurably. Additionally, in states where state Medicaid funds can be used to cover the cost of the abortion, billing institutions still need to obtain a Medicare denial in order to bill the state. Providers report being unable to obtain those denials quickly. Guidance would help to streamline this process and improve access to care.
- Explore how to reimburse providers that serve patients with Hyde exceptions who are seen for abortion care in a state other than their home state (i.e., where they have Medicaid): This is common practice for Medicaid patients who cannot obtain a needed health care service in their home state and must seek care out of state. It also occurs in places where the closest clinic is on the other side of a state border. Because states banning abortion are unlikely to pay for this care if sought elsewhere, federal action is needed to ensure that the routine practice of cross-state reimbursement is applied in the case of abortion care.
Recent guidance on the Emergency Medical Treatment and Labor Act
The Biden administration recently released a memo to remind hospitals that, under the federal law known as the Emergency Medical Treatment and Labor Act (EMTALA), providers still must administer abortion care when necessary to stabilize a patient experiencing a medical emergency. The memo was issued after reports began to emerge from states that providers were declining to offer care in emergency circumstances—afraid of criminal prosecution under state law due to ambiguous exceptions to save the health or life of a patient.
Texas sued the administration for its guidance, arguing it impermissibly preempted the state’s ability to set its own criminal code despite reports of providers denying or even refusing needed care within the state. Even so, these federal standards remain good law.
- Ensure best practices are in place to protect safety and privacy for rape and incest survivors who cannot travel on their own to access care: Under Medicaid, nonemergency medical transportation is a covered benefit for those who qualify. Standards to protect the safety and privacy of patients facing a pregnancy after rape or incest would be beneficial for those who need transportation assistance.
- Ensure patients in emergency situations can be quickly transported to receive care when necessary: Patients in need of emergency abortion care who require transport should also have that covered. However, this transport of patients must be deemed medically necessary in order to not run afoul of EMTALA. Such situations are most likely to occur in rural locations where a hospital lacks a physician capable of managing a severely sick person whose condition necessitates ending the pregnancy, which would require specialty care. To complement the Biden administration’s recent memo on EMTALA, it would also be helpful to further elaborate on how these transfers should be most effectively carried out.
Strengthen the availability of other reproductive health care
While the Hyde Amendment’s prohibitions focus on abortion, the far-ranging nature of Hyde can also create disincentives to provide other types of reproductive care.
To address these concerns, the administration should take the following steps:
- Help ensure clear payment guidelines for post-abortion contraception for Medicaid patients under Hyde: Ensuring access to contraception at the time of abortion could better meet patients’ fertility preferences. Extensive research demonstrates the safety of initiating contraception—including the placement of an intrauterine device (IUD) or implant—immediately following an abortion. Lack of clarity about how to bill for contraception after an abortion when that abortion is not covered by Medicaid due to Hyde restrictions significantly limits access to contraception since paying out of pocket for contraception is often impossible given the financial difficulties experienced by those who need to pay out of pocket for an abortion. The administration should also clarify how to legally bill a patient’s home state Medicaid for provision of post-abortion contraception that may be given in another state as well as facilitate state-to-state payment for such services.
- Better enable payment for prenatal care for patients with state Medicaid that does not cover abortion: Whether a pregnant patient subsequently obtains an abortion in or out of state, she is entitled to bloodwork, an ultrasound, and other medical care through state Medicaid coverage. If that care is provided in state, the Centers for Medicare and Medicaid Services (CMS) should clarify that coverage of that care is required regardless of whether the woman subsequently obtains an abortion. If that care is provided out of state, where an abortion is ultimately obtained, CMS should similarly clarify that state Medicaid is still responsible for that pregnancy-related medical care and facilitate state-to-state payment for such services.
I certainly would 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.Former Rep. Henry Hyde (R-IL)
Expand sites and types of care available in states with supportive abortion policies
Many women living in states with restrictive abortion laws, regardless of their insurance coverage, will seek to travel to other states to access care. President Biden, recognizing this, directed the U.S. Department of Health and Human Services, in his most recent executive order on abortion, to examine how to support states that seek to provide travel assistance to those who need it. In concert with such efforts, it is important to recognize that, already, many clinics in states supportive of abortion are at capacity with long waitlists. Helping to expand the places where and ways in which women can access care in those states will be important to helping ease capacity issues, preserving access to both in-state and out-of-state patients.
To assist in this goal, the Biden administration can take the following steps:
- Ensure that federally qualified health centers (FQHCs) have the guidance necessary to enable them to provide legally complaint abortion care: FQHCs, a major primary health care access point in communities, must also be able to encourage states supportive of abortion to use strategies such as state-based malpractice coverage alternatives to provide coverage for clinicians in FQHCs seeking to provide abortion care. Some providers working in FQHCs fear that they are violating federal law if they provide abortion because their malpractice insurance is supplied by the federal government. Currently, 95 percent of all abortion occur in specialty abortion clinics or Planned Parenthood family planning clinics. Abortion care, however, can safely and effectively be provided in primary care settings.
- Support the widespread prescription of early abortion medication through telehealth: Early abortion medication—otherwise known as “medication abortion”—is a Food and Drug Administration (FDA)-approved, two-step regime that can be completed entirely within the privacy of one’s own home. This type of abortion care provided through telehealth is one way to significantly reduce demand on existing facilities. In late 2021, the FDA lifted portions of the medically unnecessary restrictions on the use of early medication abortion—known as the Risk Evaluation and Mitigation Strategy (REMS)—but some needless restrictions remain that should be evaluated and removed.
- Offer clarity on eligible telehealth coverage to encourage providers to accept insurance, thus expanding access: Data suggest that video, audio, and written telehealth care, whether done synchronously or asynchronously, is safe. Yet currently, expansion of these services is constrained by confusion around reimbursement. As a result, telehealth providers of abortion care do not accept insurance because there is doubt about whether they will be reimbursed for provided services. This means that women who are seeking abortion care that Medicaid would cover cannot obtain that care through telehealth.
5 Key Facts About Medication Abortion
The United States must act to ensure that those who are most vulnerable can access every type of health care, including abortion for which they are eligible. Fully leveraging the implementation of current law toward these ends cannot preclude simultaneously moving to enact new nationwide protections to ensure equitable access to abortion for every person, regardless of income or ZIP code. Until Congress codifies the premise of Roe v. Wade, however, the federal government must work within existing law to protect the health and well-being of the nearly 34 million women living in states hostile to abortion care.
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Maggie Jo Buchanan
Senior Director and Senior Legal Fellow, Women’s Initiative
Senior Fellow, Women\'s Initiative
The Women’s Initiative develops robust, progressive policies and solutions to ensure all women can participate in the economy and live healthy, productive lives.