Legal Landscape: Women's Health Funding
Fundamental disagreements over abortion and contraceptive services cause controversy in women’s health policy. Some religious groups strongly oppose abortion and contraception and believe the government should outlaw or restrict the services. And in the opposing camp, “pro-choice” women’s rights advocates believe a woman should be able to control her healthcare choices — including the option to have an abortion or to use contraception.
The government funds women’s healthcare through Medicaid or by giving grants to private organizations to provide health services ("Title X Grants"). Under the Affordable Care Act, the government also requires insurance companies to provide certain women's health services to individuals.
This report takes a closer look at federal guidelines on women’s health funding. What funding is guaranteed and what standards apply? Are religious-minded attempts to restrict abortion access legal?
The following Constitutional provisions relate to government funding of healthcare.
Congress has the Power to Spend Federal Funds to Provide for “General Welfare”:
Article I of the Constitution states the powers of the Legislative Branch (Congress). Specifically, the Spending Power (Section 8, Clause 1 of Article I) gives Congress the power to spend federal funds. The clause says Congress can provide for the “general Welfare of the United States.” That means Congress can pass legislation defining how it will use federal funds, such as choosing to spend funds on citizens’ health care.
Limitations on Congress’ Spending Power:
Other parts of the Constitution limit Congressional power. The Bill of Rights, for example, ensures that citizens are protected against government power. The following citizen protections are relevant to the actions Congress has taken regarding its funding of women’s health services.
The 5th Amendment and the 14th Amendment guarantee Equal Protection by the federal and state governments. That means the federal and state governments cannot discriminate on the basis of certain “disadvantaged classes” (race, ethnicity, religion, national origin, and sex). In the context of women’s health funding, people have used Equal Protection (discrimination) arguments to challenge government policies that ban funding for abortion, but they have been largely unsuccessful. See Maher v. Roe in the Judicial section to see how the Equal Protection argument failed in trying to argue that Medicaid should cover abortions. In that case, equal protection would have been more relevant if it guaranteed that governments cannot discriminate on the basis of income level. But income level is not a disadvantaged class.
The First Amendment, which prohibits the government from interfering with free speech or from discriminating on the basis of viewpoint has been applied in the context of funding for women’s health. Critics of government attempts to defund women’s health programs so that they can indirectly decrease abortion services have sued the federal government and state governments on First Amendment grounds (calling it viewpoint discrimination). Note - abortion itself does not receive federal funds, a legislative decision that has withstood this argument. Litigants against defunding policies have had better success with a legislative provision relating to Medicaid in the Social Security Act of 1965. See “Free Choice of Provider” provision in the Legislative section for more information.
Legislative Branch (congress)
The Medicaid Act (Social Security Amendments of 1965) established the Medicaid program. The Medicaid program allows states to receive federal funding to cover healthcare services of certain categories of individuals (generally people with low-incomes, their children, and individuals with disabilities). Each state determines whether it will participate and to what extent. The federal government sets some rules on the Medicaid program, and the states have broad control over who qualifies for Medicaid, what services are provided, and at what rates.
Federal requirements in the Social Security Amendments relating to women’s health:
Medicaid does not cover abortion. This rule was passed in 1976 (Hyde Amendment) prohibiting Medicaid funds from being used for abortion. Currently, however, Medicaid must pay for abortion in cases of rape or incest, or when a woman’s life is in danger.
Medicaid ensures that individuals can choose their own provider. This “Free Choice of Provider” provision has been used to challenge attempts to defund Planned Parenthood. For example, if a state passes legislation that any group affiliated with abortion providers (e.g. Planned Parenthood) cannot receive Medicaid funds, a woman can argue she is unable to choose the provider of her choice. See e.g. Planned Parenthood of Indiana v. Indiana Department of Health in the Judicial column.
The Affordable Care Act (ACA) requires insurance companies to cover (without co-pay, deductibles, or co-insurance) certain women’s health preventative care services (such as mammograms, screenings for cervical cancer, prenatal care, and other services). The ACA gave the federal agency Department of Health and Human Services (HHS) the responsibility to define exactly what preventative care services must be covered, and HHS has issued guidance on this through its sub-agency, Health Resources and Services Administration (HRSA) (see Executive column).
The Public Health Service Act of 1970 authorizes grants to private organizations to provide family planning (women’s health) services. They are called Title X Grants. The Act gives the federal agency, Health and Human Services, responsibility for determining what organizations receive a grant. The Act contains a provision excluding the use of Title X grants from “programs where abortion is a method of family planning.”
The Balanced Budget Act of 1997 allows some health insurance plans (HMOs) serving Medicaid to refuse to cover counseling or referral for abortion services, if that HMO is objecting on moral or religious grounds.
Other relevant federal legislation:
The Congressional Review Act (1996) created a fast-track for the repeal of a federal agency rule. Under the Act, Congress can vote (each of the House and the Senate must agree) to disapprove of an agency rule. That resolution would then be sent to the President, who may sign and formally repeal the rule.
The Administrative Procedure Act (APA) is always relevant when there is a federal agency involved (in this case, the Department of Health and Human Services and Centers for Medicare and Medicaid Services, see Executive column). The Administrative Procedure Act limits federal agencies (executive branch) from abuse of power. It makes sure that agencies act fairly. For example, agencies must follow proper procedures when they make rules or decisions, and they cannot overstep the boundaries of their power. This means the HHS is limited by provisions of the Social Security Act or the Public Health Service Act. When HHS makes rules, it must follow certain procedures (e.g. provide notice to the public that it plans to make rules and allow the public an opportunity to comment). When it makes decisions, it must meet certain standards of fairness. The Administrative Procedure Act also gives citizens, companies, or other groups the right to sue if the procedures are not followed causing that citizen (or entity) harm. This is called a “private right of action” (right to sue).
Executive Branch (president and agencies)
The President influences federal policies by leading the executive branch. Because he leads the federal agencies, he controls their rule-making policies and priorities. The President can issue executive guidance or orders, commanding his agencies how to act (as long as the instructions do not conflict with legislative acts (created by Congress) or the Constitution). The President also might issue guidance to state governments. For example:
In 2016, Obama issued executive guidance to all 50 states warning that state attempts to cut Planned Parenthood from receiving Medicaid funding was “likely out of compliance with federal law.” He emphasized that funding decisions can only relate to the provider’s ability to cover the relevant medical services and to bill for those services.
Federal agencies issue rules (“regulations”) that help federal legislation get implemented. These rules are binding on all actors (including state governments), as long as they do not conflict with federal legislation or the Constitution (see Rust v. Sullivan in Judicial column).
The Department of Health and Human Services (HHS) is the main federal agency responsible for health policy. HHS is involved with most issues relating to women’s health coverage and support of women’s health services. HHS delegates many of its responsibilities to sub-agencies (e.g. Centers for Medicare and Medicaid Services (CMS) and Health Resources and Services Administration (HRSA)). The following are just a few examples of HHS actions:
Title X Grants. HHS determines how it will give out Title X Grants by publishing specific rules, and it makes decisions on grant recipients. HHS must follow strict procedures when it makes rules and decisions (see Administrative Procedure Act in the Legislative column), and it must stick to the boundaries of the legislation as well as the Constitution. Title X regulations that HHS issued under Obama’s presidency required giving money for women’s health services (excluding abortions), regardless of whether the provider also performs abortions.
Updated February 25, 2019:
Under the Trump administration, HHS published a final rule providing that family planning clinics receiving federal money cannot provide abortion referrals. The rule also requires a "physical separation" between family planning clinics (receiving federal money) and abortion clinics, explaining that the two may not share the same entrance and reception area. Planned Parenthood, a recipient of federal money, maintains a financial separation between its family planning services and its abortion services and argues the physical separation would be "all but impossible" to implement. The rule is expected to face legal challenges.
ACA Preventive Services. HHS commissioned a medical study to review what preventive services are necessary for women’s health and well-being, as required under the Affordable Care Act. HHS, through a sub-agency (Health Resources and Services Administration), issued guidelines to help ensure that women receive a comprehensive set of preventive services without having to pay a co-payment, co-insurance or a deductible. Types of preventative care required to be covered are listed here.
Judicial Branch (federal courts)
The issue of funding women’s health services is politically charged because of the controversy over abortion. Lawsuits trying to open federal funding for abortion have been unsuccessful:
States need not use Medicaid funds for abortions.
In 1977, the Supreme Court decided in Maher v. Roe that the government does not have to fund abortions just because it funds childbirth. The court said “when the Government appropriates public funds to establish a program it is entitled to define the limits of that program.” The government can “ “make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds.” In the case, a Medicaid participant had sued the state of Connecticut for passing state regulations that ban paying for abortion under Medicaid.
States cannot take Medicaid funds away from providers like Planned Parenthood.
Some state policies have attacked the entities that support pro-choice viewpoints (like Planned Parenthood), even if the entity is not using the money for abortions. Lawsuits against state policies that trying to defund based on the entity (or entity’s viewpoint) rather than the practice have been successful. For example:
Planned Parenthood of Indiana v. Indiana Department of Health (2012). Indiana passed a law prohibiting clinics from receiving Medicaid funding if the clinic provided abortion services, even if the clinic would not use the Medicaid funding for abortion services. Planned Parenthood sued (along with a doctor and two patients), arguing that the law violated the Medicaid Social Security Amendments. The Medicaid Amendments require that Medicaid participants get to choose their own provider, as long as the provider is qualified (see “Free Choice of Provider” provision under Medicaid Act in Legislative column). The federal appeals court (7th Circuit) agreed with Planned Parenthood, saying that excluding providers based on reasons unrelated to their qualifications violates the individual’s right to choose her own provider.
Federal judges in Mississippi and Arkansas made the same ruling in similar cases (that prohibiting providers from receiving Medicaid funding because of their affiliation with abortion services is illegal).
In late 2016, Texas sent notice to Planned Parenthood of its intent to block the entity from Medicaid funds. Texas claimed it had authority to do this because of allegations that Planned Parenthood was engaged in wrongdoing. Texas said these charges (that were not held up in court) were evidence that Planned Parenthood was not qualified to provide health services. Planned Parenthood immediately filed a lawsuit against Texas, to pre-empt the cuts (an “injunction” to stop Texas from blocking funding). On February 21, 2017, a federal judge (Western District of Texas) ruled that Texas had not presented credible evidence, was not likely to win, and would have to hold off on the funding cuts until a full trial. The case is named Planned Parenthood of Greater Texas Family Planning and Preventative Health Services Inc. et al. v. Traylor et al.
States can provide funding for family planning and reproductive rights through their own portion of Medicaid funds. As mentioned above, federal Medicaid dollars cover many preventive women’s health care services but not abortion except in cases of rape, incest or life endangerment. Most states (32 plus the District of Columbia) fund abortion based on this federal rule. 17 other states cover slightly more cases, covering “medically necessary” abortions. And one state (South Dakota) only funds abortions in cases of life endangerment, which apparently conflicts with federal law by not covering cases of rape or incest. See here for more information on the state break-down.
Some states have tried to keep Medicaid funds away from clinics with a pro-choice viewpoint, even if the clinic is not providing abortions. See the Judicial column for lawsuits on this issue. These lawsuits challenging state actions are usually brought in federal court (instead of state court) because (1) Medicaid is a federal issue and thus bringing it in federal court is allowed; and (2) federal judges are less likely to side with the state than are state judges.