With Liberty and Access for Some: The ACA’s Disconnect for Women’s Health

Introduction I. Historical Anachronisms A. Abortion Is Healthcare B. The Fragmenting Effect of Stakeholder-Oriented, Rights-Absent Healthcare C. Non Woman-Centric Liberties II. The Spending Amplification A. A Quick Tour of the ACA B. Public Insurance C. Private Insurance III. The Impact of NFIB v. Sebelius Conclusion "And we have now just enshrined, as soon as I sign this bill, the core principle that everybody should have some basic security when it comes to their health care." INTRODUCTION If healthcare reform had excluded from its "basic security" cardiac catheterizations, Caesarian section deliveries, or knee replacement surgeries from the services to be covered by either public or private health insurance, the public likely would have been both bewildered and outraged. It would have been bewildered because the goal of healthcare reform was to create near-universal insurance coverage to facilitate equal access to healthcare, and outraged because these procedures are some of the most frequently performed inpatient surgical procedures in the United States. (2) If access to care was the goal, then covering the procedures most often performed would seem to ensure that various populations receive equitable access to care. Nevertheless, Congress explicitly excluded (3) a procedure that current statistics indicate one in three women of childbearing age will need: abortion. (4) Not even medically necessary abortions, where the fetus is not viable, or where the pregnant woman's health is endangered, are rescued from the pariah designation imposed by the Patient Protection and Affordable Care Act (ACA). (5) Trading healthcare reform for women's reproductive health was not an unexpected occurrence. In 2010, I predicted that Congress was likely to exclude poor women from the sweeping access to care that the nascent health reform bill appeared poised to provide. (6) The ACA was an expansive legislative effort that attempted to level the playing field for healthcare access in the United States; in many areas, the ACA is likely to succeed. (7) But by excluding one of the most common surgical procedures from its sweep, the ACA has traded women's reproductive rights for everyone else's gain in medical care. (8) Despite this compromise, the ACA contains many provisions that will better women's health by improving their access to consistent care and their status in insurance markets? Such provisions include the elimination of preexisting condition clauses, (10) prohibitions on rescission, (11) open access to obstetric and gynecologic services, (12) required maternity and newborn care, (13) and the prohibition of lifetime caps on insurance coverage. (14) These private insurance strictures will improve the health of women regardless of their marital, employment, socioeconomic, or other statuses, but especially women of low economic means who historically have had trouble accessing consistent healthcare of any kind. (15) The irony is that these same women are the most likely to suffer unintended pregnancies and to seek abortions to terminate such pregnancies, which neither public nor private insurance will cover under the ACA, except in extremely limited circumstances. (16) This limitation may be mitigated by the regulatory determination as to which preventive services should be covered free of copayment requirements by insurers. (17) The ACA commands that private insurers must provide coverage of "essential health benefits," which were to include certain women's health services, (18) with no required copayment. (19) Working at the Secretary of the Department of Health and Human Services' behest, the Institute of Medicine (IOM) found that contraception is an essential health benefit, extending the reach of the ACA's access goals to millions of women for whom contraception was prohibitively expensive. (20) Thus, the ACA may significantly expand coverage for, and use of, contraceptives, thereby lowering the number of abortions that women of any background will seek, but especially those for whom rates of abortion have been rising (the poor, African-Americans, and Latinas). …