March 2014 Bar Bulletin
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March 2014 Bar Bulletin


Protecting Meaningful Reproductive Healthcare Access through Insurance Coverage

By Janet Chung


In the 41 years since Roe v. Wade, which legalized abortion, abortion has become safer, and women no longer face the same risks to their health and well-being as in the pre-Roe, "coat-hanger abortion" days.

But despite the legal protection afforded by Roe, in practical terms the right to abortion remains under constant attack. Over the last three years, more than 200 measures in 30 states imposed restrictions on abortion, including bans on abortions past 20 weeks, doctor and clinic regulations, limits on medication abortions, and bans on insurance coverage.1 In 2013 alone, 22 states adopted 70 different abortion restrictions.2 And due in no small part to this ever-broadening patchwork of restrictions across the country, 87 percent of U.S. counties lack an abortion provider and 35 percent of women live in those counties.3

In addition to geographic barriers to access, access varies widely based on a woman's income and race or ethnicity. Unintended pregnancies among women ages 15 to 44, which can result from lack of access to contraceptive care as well as failed contraception, occur at much higher rates for black and Hispanic women (91/1,000 and 82/1,000) compared to the rate for white women (36/1,000). Likewise, the unplanned pregnancy rates for the same population are 18/1,000 for white women, compared to 37/1,000 for black women and 45/1,000 for Hispanic women.4 These racial and ethnic disparities in reproductive health reflect broader social and economic disparities.

The federal Affordable Care Act (ACA) expanded access to health insurance coverage in many respects, but also included specific restrictions regarding abortion coverage that have had the effect of limiting the already-limited abortion coverage even further.5

While the ACA did not ban insurers from covering abortion, it allowed states to do so. Further, it created practical barriers for insurers that do offer abortion coverage, including requiring separate collection of and accounting for premiums for abortion coverage; minimum premium payments; and even forbidding calculations of the actuarial value of abortion coverage and from taking into account any cost reduction estimated to result from such coverage, including the absence of prenatal or postnatal care or delivery costs.

These restrictions have already had an impact on Washington's insurance market. While, prior to the ACA, every insurance carrier in Washington offered plans that covered abortion, the newly operational healthcare exchange now includes plans that do not include abortion coverage.6

Washington has a long history of placing our trust in women to make reproductive healthcare decisions that are right for them. Women in Washington are fortunate to have the protections of the Reproductive Privacy Act, passed by voter initiative in 1991 and codified as RCW ch. 9.02. Among other things, this law states that "every individual possesses a fundamental right of privacy with respect to personal reproductive decisions."

Of course, this law does not ensure that all Washington women have access to abortion coverage through insurance. Without insurance coverage, many women still lack affordable access to comprehensive reproductive healthcare. As a result, the ability to fully exercise the rights protected by RCW ch. 9.02 is compromised.

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