March 17, 2010
STATE PAYMENT FOR ABORTIONS
By: Robin K. Cohen, Principal Analyst
You asked if the state pays for abortions. If it does, you believe that it may be due to a court case.
The Department of Social Services (DSS) pays for abortions that physicians certify as “medically necessary” and “medically appropriate.” A federal law, commonly referred to as “The Hyde Amendment,” limits federal Medicaid reimbursement the state receives for these procedures to those (1) needed to save the mother's life or (2) involving rape or incest. The state's more liberal coverage policy for abortion is the result of a 1986 case, in which the state court ruled that a DSS regulation that restricted abortion coverage to those needed because the mother's life was endangered was unconstitutional. The state assumes 100% of the costs of abortions that do not pass the Hyde test.
According to David Dearborn, DSS communications director, state “medical coverage programs” are guided by the court ruling and a 1998 attorney general opinion that concluded that the case applied to the HUSKY B program.
At least partly in response to the landmark abortion rights U.S. Supreme Court decision, Roe v. Wade, Congress enacted restrictions on public funding for the abortion in 1976. The legislation (called the Hyde Amendment after its chief proponent, Rep. Henry Hyde), limited federal funding for abortions to those cases in which they were necessary to save the mother's life. For a brief period, Congress added coverage to include cases of rape, incest, and physical health damage to the women, but these were repealed by 1981. Since 1983, the exceptions for rape and incest were re-inserted and these, along with life endangerment, remain the three exceptions today.
DOE V. MAHER (40 CONN. SUPP. 394, 1986)
In 1986, a Medicaid recipient and her physician brought a class action suit against the Department of Income Maintenance (predecessor agency to DSS) challenging the legality and constitutionality of the state regulation that restricted DSS payment for abortion to that necessary because the woman's life would be endangered if the pregnancy were carried to term. The court held in that case that such a restriction violated the due process, equal protection, and equal rights amendments of the state constitution.
ATTORNEY GENERAL OPINION AS TO APPLYING DOE TO HUSKY B
In 1998, DSS requested a formal opinion from the attorney general as to whether childbearing girls in the HUSKY B program had the same rights to abortion as those available to young women in the HUSKY A (Medicaid for children and their caretaker adults) program. DSS believed that since the Doe case applied only to Medicaid, it had no bearing on HUSKY B, which is a separate, federal program (State Children's Health Insurance Program or SCHIP). DSS' drafted HUSKY B regulations would have limited the coverage to that allowed by the current Hyde language.
The attorney general concluded that the differences between HUSKY A and B were not legally sufficient to render Doe inapplicable to HUSKY B. He said that he believed that application of the regulation would violate the state constitution and concluded that DSS had to provide medically necessary abortions in HUSKY B to the same extent as provided in the HUSKY A program.
CURRENT DSS POLICY
DSS regulations state that DSS will pay physicians for all abortions that a physician certifies as medically necessary and medically appropriate, regardless of whether (1) the woman's life would be endangered by carrying the fetus to term or (2) the pregnancy is a result of rape or incest (Conn. Agency Regs., §§ 17b-262-348).
The physician alone determines medical necessity, which is defined as “ health care provided to correct or diminish the adverse effects of a medical condition or mental illness; to assist an individual in attaining or maintaining an optimal level of health; to diagnose a condition; or to prevent a medical condition from occurring.” “Medically appropriate” is defined as “health care that is provided in a timely manner and meets professionally recognized standards of acceptable medical care; is delivered in the appropriate setting; and is the least costly of multiple, equally effective alternative treatments of diagnostic modalities” (Conn. Agency Regs. §§ 17b-262-338).
The regulations also provide that the procedure is available for clients of childbearing age, including minors who can be considered sexually active and who want the services (Conn. Agency Regs. § 17b-262-341).
DSS' Dearborn indicated this policy applies to all “state medical coverage.” We believe this means that it applies to all of the medical assistance programs that DSS administers that offer physician coverage, including Medicaid (which includes both HUSKY A and fee-for-service Medicaid), HUSKY B, Charter Oak, State-Administered General Assistance, and State-Funded Medical Assistance for Noncitizens.