BILL ANALYSIS Ó
AB 1254
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON HEALTH
Rob Bonta, Chair
AB 1254
(Grove) - As Amended April 6, 2015
SUBJECT: Health care service plans: abortion coverage.
SUMMARY: Provides that a health care service plan (plan) is not
required to include abortion as a covered benefit, and would
prohibit the Director of the Department of Managed Health Care
(DMHC) from denying, suspending, or revoking a plan's license,
or from otherwise imposing discipline on a plan, if the plan
excludes coverage for abortions.
EXISTING LAW:
1)Establishes the Knox-Keene Health Care Service Plan Act of
1975 (Knox-Keene Act), which provides for the licensure and
regulation of health care service plans by DMHC.
2)Requires a health plan contract to provide to enrollees "basic
health care services" defined as:
a) Physician services;
b) Hospital inpatient services and ambulatory care
services;
c) Diagnostic laboratory and diagnostic and therapeutic
radiologic services;
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d) Home health services;
e) Preventive health services;
f) Emergency health care services, as specified; and,
g) Hospice care.
3)Provides that the Director of the DMHC may, for good cause, by
rule or order, exempt a plan contract or any class of plan
contracts from the requirement to provide basic health care
service either unconditionally, upon specified terms and
conditions, or for specified periods of time, if the Director
finds the action to be in the public interest and not
detrimental to the protection of enrollees, and that the
regulation of the plan contracts is not essential to the
purposes of Knox-Keene Act.
4)Establishes the California Reproductive Privacy Act, which
provides that the state shall not deny or interfere with a
women's right to choose or obtain an abortion prior to
viability of the fetus, or when the abortion is necessary to
protect the life or health of the woman, and makes legislative
findings and declarations that every individual possesses a
fundamental right of privacy with respect to personal
reproductive decisions, and that every woman has the
fundamental right to choose to bear a child or to choose and
to obtain an abortion, as specified.
FISCAL EFFECT: This bill has not yet been analyzed by a fiscal
committee.
COMMENTS:
1)PURPOSE OF THIS BILL. According to the author, no one,
especially religious organizations with moral objections,
should be forced to pay for abortions in their health care
plans. The author states that, not only is this an
unconscionable assault on our most fundamental freedoms, it
flagrantly violates federal law. The author argues that
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unelected state officials knew about this federal requirement,
but decided to break the law instead, and as a result,
California could lose tens of billions in federal health care
dollars for this violation hurting people throughout the state
who depend on that money. The author argues that California
exempts certain religious employers from requirements to
include contraception coverage in their health plans, but this
exemption does not exist for abortions. The author concludes
that this bill will ensure that a health plan is not required
to include abortion as a covered benefit, and prohibit DMHC
from taking disciplinary action on, or denying a license to, a
plan that excludes coverage for abortion.
2)BACKGROUND.
a) Knox-Keene Act coverage requirements. The Knox-Keene
Act requires coverage of basic health care services, which
include physician services, inpatient hospital services,
ambulatory care services, outpatient hospital services, and
preventive services. Plans are required to provide these
basic health care services to its enrollees where medically
necessary. Existing regulations further define basic
health care services, and specify that they must include a
variety of family planning services. Applying the American
Medical Association's definition of "medical necessity,"
any legal abortion clearly qualifies, as the procedure is a
clinically appropriate health care service provided by a
prudent physician to treat pregnancy.
b) Relevant case law. Over four different terms, beginning
in 1978, California's Budget Act changed provisions in the
California Constitution that limited Medi-Cal coverage for
abortion, yet still covered the medical expenses of
indigent women who carried their child to term. The
Committee to Defend Reproductive Rights filed suit in 1978,
arguing that the denial of this coverage was a violation of
California's constitutional right to privacy. The Superior
Court agreed, ruling in Committee to Defend Reproductive
Rights v. Myers, 29 Cal.3d 252 (1981) (CDRR v. Myers), "By
virtue of the explicit protection afforded an individual's
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inalienable right of privacy by Article I, Section 1 of the
California Constitution?the decision whether to bear a
child or to have an abortion is so private and so intimate
that each woman in this state - rich or poor - is
guaranteed the constitutional right to make that decision
as an individual, uncoerced by governmental intrusion."
The court held that the abortion funding restrictions in
the Medi-Cal program, which resulted in the funding of
childbirth but not abortion, infringed the woman's exercise
of her right of procreative choice. There is nothing to
suggest that the state's regulatory authority for health
care service plans is not subject to the same
constitutional principle as its funding authority.
c) Federal law. The Federal Hyde Amendment is a
legislative provision barring the use of certain federal
funds to pay for abortions except if a pregnancy arises
from incest or rape. The requirement is renewed annually as
a "rider" that, in various forms, has been routinely
attached to annual appropriations bills since 1976. The
Hyde Amendment applies only to funds allocated by the
annual appropriations bill for the Department of Health and
Human Services and primarily affects Medicaid. The cutoff
of federal Medicaid funds prompted some states to provide
public funding for abortion services from their own
budgets, without federal funding. Over time the number of
states doing so has gradually expanded, either through
legislation or consequent to judicial rulings mandating
equal access to health care for low-income women. As of
2007, 17 of the 50 states provide such funding; four of
these states provide such funds voluntarily and 13 of these
states do so pursuant to a court order. California is one
of the 13 states that does so by court order, per CDRR v.
Myers.
d) Recent DMHC actions. In August 2014, DMHC sent letters
to seven plans it determined had language in their
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contracts that may discriminate against women by limiting
or excluding coverage for termination of pregnancies. The
letters were issued after it became known that two
California universities limited employee coverage for
abortions only to those necessary to protect a woman's
health.
In the letter, DMHC stated that it had erroneously approved
or failed to object to the discriminatory language in the
plans' evidence of coverage filings. DMHC reminded plans
that the Knox-Keene Act "requires the provision of basic
health care services, and that the California Constitution
prohibits health plans from discriminating against women
who choose to terminate a pregnancy." DMHC also stated,
"?all health plans must treat maternity services and legal
abortion neutrally." Additionally, DMHC stated that
exclusions and limitations on abortion coverage are
incompatible with the California Reproductive Privacy Act
and multiple court rulings that have "unambiguously
established under the California Constitution that every
pregnant woman has the fundamental right to choose to
either bear a child or to have a legal abortion." DMHC
also clarified that a plan is not required to cover
abortions that would be considered unlawful.
DMHC directed the plans to review all current plan
documents to ensure they are compliant with the Knox-Keene
Act with regard to legal abortion, including any plan
documents previously approved or not rejected by the
department. DMHC also required plans to amend health plan
documents to remove discriminatory coverage exclusions and
limitations, including but not limited to, any exclusion of
coverage for "voluntary" or "elective" abortions and/or any
limitation of coverage to only "therapeutic" or "medically
necessary" abortions.
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3)SUPPORT. The California Right to Life Committee, Inc. (CRLC)
states that this bill recognizes that under the Patient
Protection and Affordable Care Act, a licensee does not have
to provide abortion as essential benefit coverage. Further,
the CRLC states that this bill offers a choice to a licensee
who may choose to exclude or restrict abortion coverage, but
would not prohibit any health insurance companies from
offering this coverage. CRLC argues that California citizens
should have the opportunity to select health care service
plans in keeping with their medical needs and ethical values,
and insurance companies should not be discriminated against
for not including abortion coverage.
4)OPPOSITION. Opponents state that abortion is a health
condition requiring medical care, and abortion, like
childbirth, is an individual decision that a woman may make
about how to treat her pregnancy. Opponents argue that
abortion is a legally and constitutionally protected medical
option: under the California Constitution, the government
cannot weigh a woman's decision to carry a pregnancy to term
or obtain an abortion, and under state law the state may not
interfere with a woman's right to choose or obtain an
abortion. Opponents assert that if the state required plans
to cover childbirth, but not abortion, it would weight a
woman's individual decision about how to treat her pregnancy,
and interfere with her right to choose any legally available
and medically necessary treatment for pregnancy. Opponents
contend that the state must treat abortion and childbirth
neutrally, and cannot require insurance coverage of the
medical expenses for women who decided to continue a
pregnancy, while excluding coverage for abortion. Further,
opponents cite CDRR v. Myers which disallows Medi-Cal program
from excluding coverage for abortions defined as not medically
necessary while subsidizing all other prenatal and delivery
expenses, and argues that DMHC is subject to the same
constitutional principle. Opponents argue that plans are
required to cover basic health care services, which includes a
"variety of voluntary family planning services" which
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encompasses abortion, and that any legal abortion qualifies
under Knox-Keene's medical necessity criteria, which triggers
coverage, because the procedure is a clinically appropriate
service provided by a physician to treat pregnancy.
5)PREVIOUS LEGISLATION.
a) AB 2336 (Grove) of 2014, would have prohibited a person
from performing, or attempting to perform an abortion if
they know the pregnant woman is seeking the abortion on
account of the gender of the unborn child. AB 2336 failed
passage in the Assembly Health Committee.
b) ACA 5 (Grove), of 2014, would have prohibited, except in
the case of an emergency, a physician from performing an
abortion on an unemancipated minor unless the physician has
notified one of her parents, or a judge has granted the
unemancipated minor a waiver of the notification
requirement. ACA 5 failed passage in the Assembly Health
Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Right to Life Committee, Inc.
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Capitol Resource Institute
Faith and Public Policy
Opposition
American Civil Liberties Union of California
National Health Law Program
Planned Parenthood Advocacy Project Los Angeles
Planned Parenthood Affiliates of California
Planned Parenthood Mar Monte
Planned Parenthood Northern California Action Fund
Planned Parenthood of Orange and San Bernardino Counties
Planned Parenthood Pasadena and San Gabriel Valley
Planned Parenthood of Santa Barbara, Ventura & San Luis Obispo
Counties
Analysis Prepared by:Paula Villescaz/Kelly Green / HEALTH /
(916) 319-2097
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