Thomas A. Scully
Administrator
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attn: CMS-2127-P
Hubert H. Humphrey Building, Room 443-G
200 Independence Avenue, S.W.
Washington, D.C. 20201
Comments on State Children's Health Program: Eligibility for Prenatal Care for Unborn Children (File Code: CMS-2127P)
Dear Mr. Scully:
On behalf of the American Civil Liberties (ACLU), we respectfully submit these comments in opposition to the proposed amendment to regulations under the State Children's Health Insurance Program (SCHIP), published at 67 Federal Register 9936 (March 5, 2002), that would permit states to cover "unborn children" in the program. The ACLU is a nationwide, non-partisan organization with nearly 300,000 members dedicated to protecting the individual liberties and freedoms guaranteed by the Constitution and laws of the United States,
As explained more fully below, the ACLU strongly supports federal financing of prenatal care for all low-income women in this country. The proposed regulation is an inappropriate means of providing such coverage, however, because it would unnecessarily and dangerously undermine the foundation of the right to choose abortion; it would come at the expense of needy children; it is unauthorized by the SCHIP statute; and, because in a legal sense it separates the fetus from the woman, it fails even to provide adequate prenatal care. Prenatal coverage should not threaten reproductive freedom or deprive needy children of health care.
The ACLU urges the Administration (1) to withdraw the proposed regulation; (2) to work with Congress to pass new legislation that would permit states to provide prenatal coverage to all needy pregnant women in this country and would appropriate additional funds for this critical care; and (3) to adopt an expedited process for states to receive § 1115 waivers to allow expanded SCHIP coverage to pregnant women until the new comprehensive federal legislation takes effect. If the Administration is determined to press forward with this unauthorized and ill-advised regulation, we urge it not to alter the regulation to deny prenatal coverage to the fetuses of immigrant women.
I. Background
When Congress created SCHIP, which was enacted as part of the Balanced Budget Act of 1997, 42 U.S.C. § 1397aa et seq., it appropriated $40 billion in federal funds over ten years (fiscal years 1998 through 2007) to cover the health care of low-income children. See U.S. General Accounting Office (GAO), Children's Health Insurance: SCHIP Enrollment and Expenditure Information at 1 (July 2001), available at http://www.gao.gov/new.items/d01993r.pdf [hereinafter GAO Report]. SCHIP provides federal grants to states for the provision of health insurance coverage to "targeted low-income child[ren]." 42 U.S.C. § 1397jj(a). Under the SCHIP statute, a "targeted low-income child" is defined as "a child" who is not insured, who meets certain state eligibility requirements, and who is "an individual under 19 years of age." 42 U.S.C. § 1397jj(b)(1), (c)(1). Current regulations echo the statutory definition of child, stating that "[c]hild means an individual under the age of 19." 42 C.F.R. § 457.10.
The proposed regulation would amend the SCHIP implementing regulations in 42 C.F.R. § 457.10. Instead of employing the definition contained in the SCHIP statute, the regulation would provide that "[c]hild means an individual under the age of 19 including the period from conception to birth." (proposed new language designated in italics.)
II. Comprehensive Prenatal Care Is Critical To Promoting Healthy Children and Healthy Mothers.
The ACLU strongly supports federal financing of prenatal care for all low-income women in this country, including those who are currently ineligible for such care as a result of their immigration status. Access to early and regular prenatal care is essential to promoting both maternal and child health. Women who do not receive appropriate prenatal care are more likely to give birth to preterm and low-birth-weight infants. See American College of Obstetricians & Gynecologists, Facts About Uninsured Pregnant Women at 2 (January 2002) [hereinafter ACOG Facts]. Preterm births and low birth weight are a factor in 60% of infant deaths. See March of Dimes, Fact Sheet: Low Birth Weight (2000). Comprehensive prenatal care also promotes maternal health and well-being. It is estimated that half of all maternal deaths in the United States could be prevented through early diagnosis and appropriate treatment of pregnancy complications. See ACOG Facts at 1.
Lack of insurance coverage is the most significant barrier to prenatal care for women in this country. As of 1999, nearly one in five women of childbearing age (ages 15-44 years) were uninsured. See Kenneth E. Thorpe et al., The Distribution of Health Insurance Coverage Among Pregnant Women, 1999, prepared for the March of Dimes (Apr. 2001), available at http://www.modimes.org/files/2001FinalThorpeReport.pdf. Coverage for prenatal care is also money well-spent. Low birth weight accounts for 10% of all health care costs for children, and the average lifetime medical costs for a premature infant are conservatively estimated at $500,000. See ACOG Facts at 2.
Expanded insurance coverage is thus critical to improving health outcomes for both women and children. The ACLU fully supports the worthy goal of expanding such coverage.
III. The Proposed Regulation Unnecessarily and Dangerously Undermines Reproductive Choice.
The proposed regulation is an inappropriate means of providing such prenatal coverage because it undermines reproductive freedom by equating the term "child" for purposes of the SCHIP program with a fetus. No regulation or federal law currently on the books treats the fetus as the equivalent of a person and no federal regulation should do so.
Treating the fetus as a person under federal law creates fundamental tension with the right to choose abortion. The right of reproductive choice established in Roe v. Wade and affirmed in many cases in the nearly thirty years since that landmark decision, depends upon the principle that the fetus is not a person with rights separate from and equivalent to the pregnant woman. The proposed regulation subverts this important principle.
What makes the proposed regulation all the more troublesome is that the tension it creates with reproductive rights was not inevitable. The Administration could easily have accomplished its stated goal of expanding prenatal coverage without undermining reproductive freedom. Providing prenatal coverage by expanding SCHIP eligibility to pregnant women (and not merely to their fetuses) would have achieved the same purpose without compromising the right to choose abortion. Such expanded eligibility for pregnant women in the SCHIP program can be accomplished through the existing waiver process, which the Administration controls. (Two states -- New Jersey and Rhode Island -- have already been granted waivers to provide such coverage.) It could also be accomplished even more comprehensively through legislation that would extend prenatal coverage to all low-income women, regardless of their immigration status.
IV. The Proposed Regulation Forces an Unnecessary and Unacceptable Trade-Off Between Fetal Health and Children's Health.
The risks that the proposed regulation poses for the right to choose are especially intolerable in light of the current fiscal realities of the SCHIP program. The proposed regulation does not change the amount of money appropriated for SCHIP and the Administration has not sought additional funding for the program. Thus, although the proposed regulation would expand eligibility for SCHIP, it does not come with added funds to pay for the newly eligible fetuses.
According to all reports, states are increasingly spending their full SCHIP allotment. And those states that have not spent their full allocation thus far are likely to expend all available funds in the near future as a result of the dip in funding (by approximately 25%) that was enacted for fiscal years 2002 to 2004 just as the demand for SCHIP funding increases. See GAO Report at 10. Both the Office of Management and Budget and the Office of the Actuary at the Center for Medicaid and Medicaid Services at the Department of Health and Human Services expect that there will be a shortfall in federal funding available for children's health care coverage. See Kaiser Commission on Medicaid and the Uninsured, Policy Brief: Issues Related to Unspent S-CHIP Money at 5 (Oct. 2001), available at http://www.kff.org/content/2001/4023/4023.
Indeed, a growing number of states are already freezing enrollments in their SCHIP programs in anticipation of a funding shortage. See Charles Ornstein, States Cut Back Coverage for Poor, L.A. TIMES (Feb. 25, 2002). Other states have cut services for enrolled children or have been on the verge of disenrolling children who are currently enrolled. See id. States face these tough choices even though their SCHIP programs do not currently cover all children who are eligible for care. See id. Any plan to expand the eligibility for SCHIP will only compound this problem.
This funding shortfall will increasingly make SCHIP a zero sum game. In many states, any benefits for fetuses that may come from the proposed regulation will come at the expense of low-income children who are already eligible for the program. For this reason, the proposed regulation cannot be seen as a serious attempt to expand health care. Rather, it appears merely to be a cynical, ideological attack on reproductive rights.
To ensure that essential prenatal coverage does not come at the expense of needy children, additional funds must be appropriated. Without such funds, the proposed regulation provides very little benefit at serious cost to reproductive rights.
V. The Proposed Regulation Undermines Its Stated Goal of Promoting Healthy Children Because It Fails To Provide Coverage to Pregnant Women.
By extending SCHIP coverage only to fetuses and not to women for comprehensive care during pregnancy, the proposed regulation will undercut its own stated goal of producing the healthiest possible babies. The proposed regulation does not provide for comprehensive care for pregnant women during pregnancy, labor, or delivery nor does it permit any insurance coverage for pregnant women in the post-partum period.
By making the fetus and not the pregnant women eligible for SCHIP, the proposed regulation would exclude from covered services care that may be critical to a pregnant woman's health, but which is not addressed directly to her developing fetus. For example, if a woman broke her leg during pregnancy, would the proposed regulation permit coverage for treatment of that injury? While such treatment does not directly affect the fetus (which, after all, would be the covered entity under the proposed regulation), it is certainly treatment that would indirectly benefit the fetus by improving the woman's health. Would a woman have coverage for dental care or treatment of back problems or any number of other problems caused or aggravated by her pregnancy that do not directly affect the fetus? What if she had a miscarriage? Would she be covered for the necessary care? Unlike the misguided approach of the proposed regulation, which covers only fetuses, a policy that provides pregnancy-related care for women avoids these problems.
The proposed regulation also would not allow states to provide SCHIP coverage for any post-partum care. Under the proposed regulation, the covered care would be available only during "the period from conception to birth." As soon as the fetus is born, any incidental coverage that the woman had as a result of carrying a covered fetus would cease. Major medical organizations agree that post-partum medical care is crucial for maternal health. See American Academy of Pediatrics & American College of Obstetricians and Gynecologists, Guidelines for Perinatal Care (4th ed. 1997). Recognizing the importance of post-partum care, under the Medicaid program, the woman is covered for 60 days after delivery. See 42 C.F.R. § 440.210, 220; 447.53. It hardly serves the cause of promoting healthy children to cease care abruptly for the women who care for those children.
VI. The Proposed Regulation Exceeds HHS's Authority Because It Is Not Authorized by the SCHIP Statute.
The proposed regulation should be withdrawn not only because it undermines reproductive rights and women's health, but also because it exceeds HHS's authority. The SCHIP statute simply does not authorize redefining "child" for purposes of the regulations to include "unborn children." The SCHIP statute itself nowhere states or suggests that "child" as used in the statute includes a fetus. Defining a "child" to include a fetus is inconsistent with the plain and ordinary meaning of the term.
Courts have consistently held that the plain meaning of the term "child" does not include a fetus. In Burns v. Alcala, 420 U.S. 575 (1975), for example, the Supreme Court held that the term "dependent child" does not include an "unborn child" for purposes of the Aid to Families with Dependent Children (AFDC) program. Id. at 577-78. In reaching the conclusion that only a born individual is considered a "child," the Court looked first to the language of the AFDC statute itself, noting that the statutory definition of child made no mention of an "unborn child." Id. at 578-79. The Court explained:
Our analysis of the Social Security Act does not support a conclusion that the legislative definition of "dependent child" includes unborn children. Following the axiom that words used in a statute are to be given their ordinary meaning in the absence of persuasive reasons to the contrary, . . . and reading the definition of "dependent child"in its statutory context, we conclude that Congress used the word "child" to refer to an individual already born, with an existence separate from its mother. Id. at 580-81 (internal citations omitted).
Similarly, in Lewis v. Grinker, 794 F. Supp. 1193 (E.D.N.Y. 1991), aff'd on other grounds, 965 F.2d 1206 (2d Cir. 1992), the court concluded that a fetus is not eligible for Medicaid benefits because the ordinary meaning of the statutory term "child" does not include a fetus. In concluding that Congress did not intend that fetuses would be considered "individuals under the age of 21" for purposes of Medicaid, the court reasoned:
In all events, the phrase "individuals under the age of 21" does not easily apply to unborn children under ordinary usage. The unborn are not "persons" under the Constitution. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed.2d 147 (1973). In addition, the "age" of any individual is normally computed from birth. While the statute does not require calculation of the precise age "under 21" of "individuals under the age of 21," it is apparent that any construction of the phrase "individuals under the age of 21" which will accommodate the unborn is not ordinary usage. Accordingly, I conclude that Congress did not intend the phrase "individuals under the age of 21" to include the unborn. 794 F. Supp. at 1198.
Moreover, in numerous other cases, courts have held that the term "child" contained in a state's child abuse statutes does not include "unborn children." See, e.g., In re Unborn Child, 18 P.3d 342 (Okla. 2001) (holding fetus is not a "child" for purposes of state children's code); State v. Dunn, 916 P.2d 952 (Wash. Ct. App. 1996) (dismissing child mistreatment charges, finding that the legislature did not intent to include fetuses within the scope of the term "child," which was defined as a "person under eighteen years of age"); Reinesto v. Superior Court, 894 P.2d 733, 735 (Ariz. Ct. App. 1995) (ordinary meaning of "child" does not include "activity that affects fetuses"); State v. Gray, 584 N.E.2d 710, 711, 713 (Ohio 1992) (same).
Furthermore, the Balanced Budget Act of 1997, which created the SCHIP program, contains other sections that explicitly use the term "unborn child." Title IV of that Act amended sections of the Medicare and Medicaid statutes to define the term "emergency medical condition" as a medical condition which "plac[es] the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy." Balanced Budget Act of 1997, Pub. L. No. 105-33, §§ 4001, 4704, 111 Stat. 251, 290, 496 (1997) (codified as amended at 42 U.S.C. § 1395w-22(d)(3)(B)(i) and 42 U.S.C. § 1396u-2(b)(2)(C)(i)) (emphasis added). If Congress intended to include a fetus as a "child" eligible for SCHIP, it would have explicitly used the term "unborn child" in this section of the Act as it did in the Medicare and Medicaid sections of the same statute. The proposed amendment to the SCHIP regulations is therefore unauthorized.
VII. If the Proposed Regulation Becomes Final, HHS Cannot Exclude from SCHIP Eligibility Fetuses Carried by Women Who Are Not Eligible for Benefits by Reason of Their Immigration Status.
For the reasons set forth above, we oppose this unauthorized regulation and urge that it be withdrawn. But if the Administration is nonetheless determined to press forward with the regulation despite our serious concerns, it should in no event "clarify" the regulation to deny coverage to the fetuses of immigrant women merely because the women would themselves be ineligible to receive benefits under federal law. If the proposed regulation is to be "clarified" with respect to this issue, any clarification should make explicit what is already in the text of the regulation -- that the woman's immigration status is irrelevant to the provision of CHIP benefits.
Immigrants come to the United States to work, to join close family members, and to escape persecution in their home countries, not for the purpose of receiving federal benefits. Nevertheless, because of persistent myths concerning non-citizens' supposed greater use of benefits, punitive restrictions were enacted in 1996 that exclude both legal and undocumented immigrants from a host of federal benefits. See The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codifed at 8 U.S.C. § 1611(a)). These restrictions have resulted in severe hardship to both citizens and immigrants in many new American communities.
If the proposed regulation is adopted, there is no principled basis on which to distinguish the fetuses of immigrant women from the fetuses of citizen women. Since the proposed regulation establishes SCHIP eligibility for the fetus and not the woman, the woman's immigration status is simply irrelevant. Although federal law provides that "an alien who is not a qualified alien . . . is not eligible for any federal public benefit . . . .," 8 U.S.C. § 1611(a), a fetus has no citizenship or immigration status whatsoever, and is therefore not made ineligible for coverage by reason of 8 U.S.C. § 1611(a) or any other immigration-related eligibility restriction.
Any exclusion of the fetuses of ineligible immigrant women would thus have to be accomplished by altering the proposed regulation to exclude such fetuses explicitly. Such a change would be contrary to the avowed purpose of the proposed regulation and would have no basis in logic, given that the regulation is premised entirely on the fetus's status and not the woman's. In fact, any change to exclude the fetuses of immigrant women would be irrational. See Plyler v. Doe, 457 U.S. 202, 220 (1982) (invalidating state law denying public schooling to the children of undocumented immigrants because the denial "directed the onus of a parent's misconduct against his children").
VIII. Conclusion
The ACLU urges the Administration to withdraw the proposed regulation and to develop a legislative proposal that would provide prenatal care to all women, regardless of their immigration status, without undermining reproductive freedom. Moreover, if this important goal is to be accomplished without undercutting the initial and worthy purpose of SCHIP, to provide coverage for needy children, the Administration must work to secure additional funds for this critical care. The women and children of America deserve no less.
Sincerely,
Laura W. Murphy, Director
Washington National Office - ACLU
Louise Melling, Associate Director
Reproductive Freedom Project - ACLU
Tim Edgar, Legislative Counsel for Immigrants' Rights
Washington National Office - ACLU
LaShawn Warren, Legislative Counsel for Women's Rights
Washington National Office - ACLU
Lenora Lapidus, Director
Women's Rights Project - ACLU