p. 150What does the federal health care reform act of 2010 say about pregnancy, contraception, abortion, and reproductive health care generally?

The United States has the most expensive health care system of any country in the world. Medical costs per person and the percentage of the gross national product spent on health care are higher than in other wealthy country including Australia, Canada, Germany, the Netherlands, New Zealand, and the United Kingdom. Yet by many measures—access to health care; degree of disparities in care for better-off and less-well-off people; existence of national policies that promote primary, preventive care; and use of information technology—the US health care system has lagged behind the systems in other Western countries.

The US health care system has had particular gaps in the areas of reproductive health services for girls and women. One measure of this is that our teen pregnancy rate is higher than rates in other wealthy, industrialized countries, with long-term negative consequences for many young women when it comes to education and employment opportunities. In addition, in the era before health care reform, approximately 14 million women of childbearing age have lacked p. 151↵health care insurance, or about 22 percent of women in that age group.¹

Most provisions of the 2010 federal act do not come into effect until 2014, and there is still a complicated set of fundamental challenges for the act to survive before that date. The Supreme Court’s June 2012 affirmation of the constitutionality of the Affordable Care Act generally, including the penalty for those who do not meet its requirement that everyone must purchase health care insurance, was an important first step. Still, Republicans holding national office are determined to overturn the act, and many Republican governors have announced that they will not implement the Medicaid expansion designed to increase the number of low-income persons covered. In the meantime, the act’s provisions are a good guide to the reproductive health services that Congress has defined as crucial for all women. The health reform act and the debates that preceded and followed its passage are also a good guide to where the political lines are drawn across women’s bodies, marking which services are approved and which are not, at this time.

As noted, the federal health reform act has expanded the Medicaid program, allowing more very low income families to have health insurance, but this provision has an uncertain future. The new health exchanges will also allow slightly better-off Americans to purchase subsidized insurance. These expansions could together extend basic coverage to millions of women of childbearing age. In addition, several provisions will address women’s sexual and reproductive health before 2014. Adult children under the age of twenty-six, among whom rates of unintended pregnancy and sexually transmitted infections are especially high, can now be covered by their parents’ health plans. Upon the bill’s passage as well, a larger number of lower income women and men than previously became eligible for Medicaid coverage specifically for family planning.

Other provisions of the act require insurance plans to offer a set of essential health benefits, including maternity care. p. 152↵This feature will vastly expand the number of women covered during pregnancy. Commencing August 2012, a number of reproduction-related preventative services were covered without copayment, coinsurance, or deductible when a woman uses a plan network provider. This coverage includes preconception and prenatal care; screening for gestational diabetes; counseling and screening for STDs; prenatal and postpartum lactation education and support; subsidy for rental of breast pumps; screening and counseling for interpersonal and domestic violence; and all FDA-approved contraceptive methods, sterilization, and counseling.

Moreover, another group of benefits that are especially important to women has been included in the act. Women will no longer need to obtain a physician’s referral to make an appointment for gynecological or obstetric care. Additionally, as I noted earlier, the provision that forbids exclusions based on a “prior condition” means that a woman who has undergone a caesarean delivery cannot subsequently be denied maternity coverage for that reason. Likewise, insurance companies can no longer practice “gender rating,” or charging women higher premiums than they charge men.

Economists and other experts have affirmed that these aspects of the health reform act will make pregnancy, family planning, and other female-related health services more accessible and affordable for millions of girls and women, and will contribute to the project of reducing health care costs in general. Yet political opposition to the act remains fierce, and its future is unclear.

The issue of abortion was treated as a toxic element throughout the health care reform debates. In the last stages, the entire bill’s passage seemed to depend on a vote to express allegiance to an amendment guaranteeing anti-abortion provisions that had already been in force, via the Hyde Amendment, since 1978. In the end, the act lays out rules that segregate insurance premiums so that no federal funds can fund abortion. States are still free to enact their own funding prohibitions. In 2010, p. 153↵Arizona, Louisiana, Mississippi, Missouri, and Tennessee passed laws prohibiting abortion coverage in plans purchased through the exchanges. A number of other states have passed variants of these laws.

Why did abortion become so controversial during congressional health care debates?

In 2009, Representative Bart Stupak (D-MI) introduced an anti-abortion amendment to the House health care reform bill, barring public and private health insurers from covering abortion if the plans accepted subscribers who received public subsidies to help pay for their insurance. The amendment was approved by a bi-partisan majority.

The Stupak amendment was consistent with a number of pre- and post-Roe v. Wade political strategies that have used women’s reproductive capacities to achieve political goals that have little or nothing to do with women’s interests. Severe restrictions on abortion funding would not, for example, lead to a more effective or streamlined health care system for anyone in the United States. Nor would these provisions serve women in particular whose health and capacity to earn a ­living may be compromised by pregnancy, childbirth, and child rearing. While some representatives who oppose abortion on religious grounds may have had no larger agenda than securing religious dicta, others turned women’s reproductive needs into a weapon against health care reform. In addition, the Hyde Amendment had long forbidden the use of federal funds for abortion.

In 2009, Representative Stupak and his supporters were not so constrained. Stupak’s amendment curtailed the reproductive rights of poor women and middle-class women who depend on their health insurance. In this way, the supporters of the Stupak Amendment transformed abortion into a national issue in an entirely new way. No longer only a “women’s issue,” or even, after the Stupak Amendment, simply for some a religious p. 154↵issue, abortion became the linchpin that the rise or fall of health care reform depended on. Everyone’s life in America, via health care legislation, was now connected to abortion.

Even after the passage of the Health Care and Education Reconciliation Act of 2010, anti-abortion members of Congress, stimulated by the success of the Stupak Amendment, continued to attempt to eliminate access to and coverage for abortion. Congress passed H.R. 3 in 2011, which aimed to create mandates and tax penalties for families, military personnel, and small businesses that use private funds to buy insurance plans that include abortion coverage. H.R. 3 would also have limited coverage of abortions for rape victims to only those who could prove forcible rape, among other provisions.