BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 794 A
Assembly Member Chu B
As Amended June 9, 2005
Hearing Date: June 14, 2005 7
Insurance Code; Welfare & Institutions Code 9
GMO:cjt 4
SUBJECT
Health Care Funding: Access for Infants and Mothers
Program (AIM)
DESCRIPTION
This bill would authorize the Department of Health Services
to accept or use funds allocated to the state under the
federal State Children's Health Insurance Program (SCHIP)
to fund the medically necessary pregnancy-related services
provided to immigrants under the Medi-Cal program, and to
accept and use these funds for women in the Access for
Infants and Mothers Program (AIM) only when, during the
period of coverage, the woman is the beneficiary.
The bill would affirm the State Supreme Court's holding in
People v. Belous and state that the bill is declaratory of
existing law.
BACKGROUND
Congress created the SCHIP federal health coverage program
in 1997 to provide health care services for low-income
children. [42 CFR 457.10.] Under 42 U.S.C. 1397jj(b)(1)
and (c)(1), the SCHIP service population is "targeted
low-income children," defined as minors who are
"individual(s) under 19 years of age." However, a recent
amendment to the SCHIP regulations regarding the target
population redefines "child" to read: "'Child' means an
individual under the age of 19 including the period from
(more)
AB 794 (Chu)
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conception to birth."
In light of this expanded definition of "child" in the
SCHIP regulations, the state's acceptance of federal SCHIP
funds may result in potential legal implications relating
to reproductive rights, religious liberty, and potential
medical liability.
In order to ensure that women have access to comprehensive
pregnancy-related services through the AIM and Medi-Cal
Prenatal Care Program, the California Health and Human
Services Agency cosponsors this bill, together with several
women's health groups.
CHANGES TO EXISTING LAW
1. Existing California case law has consistently
recognized, in a variety of contexts, such as
prosecutions for homicide and for "prenatal child abuse,"
that the fetus is not a human being until birth. [People
v. Belous (1969) 71 Cal. 2d 954, 968.] Belous stands for
the principle that women have a fundamental right to make
childbearing decisions, including abortion.
Existing federal case law , Roe v. Wade (1973) 410 US.
113, held that the word "person" as used in the
Fourteenth Amendment does not include the unborn. Since
Roe v. Wade, the Supreme Court has reaffirmed in many
cases a woman's right of reproductive choice, which is
based upon the principle that the fetus is not a person
with rights separate from and equivalent to those of the
pregnant woman.
This bill would state that California protects a woman's
right to reproductive privacy through its Constitution,
the courts, and statutes and that California reaffirms
these protections specifically as stated in People v.
Belous, supra.
2. Existing federal law requires the state to adopt a
plan for the provision of health services to low-income
children and pre-natal services to low-income women, for
the purpose of receiving and using funds allocated to the
state under the SCHIP program. Recent amendments to the
federal regulations define "child" for purposes of the
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SCHIP funds to mean an "individual under the age of 19
years including the period from conception to birth."
This bill would authorize the Department of Heath
Services and the Managed Risk Medical Insurance Board to
accept and use moneys under the SCHIP, as interpreted
under the federal regulations, only when, during the
period of coverage, the woman is the beneficiary. The
bill would require the state's SCHIP plan and any
amendments submitted to be consistent with this
limitation.
The bill would provide that the scope of services
provided to low-income children and low-income pregnant
women would not be altered by the bill or the state plan
or any amendments made to the state SCHIP plan.
COMMENT
1. Need for the bill
The recent change in the federal regulation governing the
allocation of SCHIP moneys has become a concern to
reproductive rights advocates, who see the redefinition
of "child" to include, in the 19 year age limit, the
period from conception to birth, as an effort to promote
the concept that fetuses are persons. In light of this
state's history relating to a woman's right of
reproductive choice, as established by both People v.
Belous and Roe v. Wade, the author and the proponents
believe it is important to ensure that no matter what
limitation the federal government places on the federal
funds that are to be allocated to the state, or expansion
into pre-natal care all the way back to conception, such
limitation or expansion does not erode a woman's right of
reproductive choice.
2. Legal liability issues presented by change in federal
regulations
Proponents are also concerned about the impact of the new
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regulation on the state's legal liability when, for
example, necessary medical services are provided to a
pregnant woman but the medical protocol presents an
appreciable risk to the fetus.
To illustrate, they cite Medical Complications of
Psychiatric Illness<1>: the "decision to use psychotropic
drugs should be reached by carefully weighing the risk of
prenatal exposure against the risks to the fetus and
mother posed by a relapse of the mother's psychiatric
illness if drugs are withheld." In analyzing the impact
of the SCHIP program covering the fetus under the new
regulation, the authors of that publication advise:
"since the fetus is the client, it appears that the
responsibility of the physician is strictly to the needs
of the fetus." The doctor, according to the publication,
would need answers to questions such as whether the
doctor should consult someone other than the pregnant
woman (since she would have a "conflict of interest" with
her fetus); who that person would be (the absent
father?); whether a legal guardian ought to be appointed
for the fetus; if it matters if the services are being
provided by a managed care organization that provides
SCHIP services extensively, or by a totally publicly
funded exclusive provider of services under the new SCHIP
regulations.
In order to avoid such legal liability questions, this
bill would simply allow the state to access and use these
SCHIP funds only when, during the period of coverage, the
woman is the beneficiary.
3. Is the language sufficient to pass federal muster?
The amendments to AB 794 were drafted in consultation
with the Department of Health Services and groups
concerned about the impact of the new regulation on a
woman's right of reproductive privacy in California.
Thus, it reflects a delicate balance that would allow the
state to continue to receive federal funds under the
SCHIP program while avoiding any potential erosion of a
woman's reproductive rights in California. The language
------------------------
<1> Claire Pomery, MD, James E. Mitchell, MD, James Roerig,
Pharm.D., BCPP, and Scott (American Psychiatric Publishing,
Inc. 2002).
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is not mandatory; the state may accept and use the
potentially restricted funds only when the woman is the
beneficiary. However, no reduction in pregnancy-related
services to low-income pregnant women is expected,
because the two programs that provide such services, the
Access for Infants and Mothers and Medi-Cal's pre-natal
care programs, are borne solely by state funds [General
Fund and Proposition 99 (tobacco funds)].
According to the Health and Human Services Agency, AB 794
provides the framework for California to access $288
million in new federal funds to support critical health
services. "This legislation clarifies that California
will accept and utilize the Federal funds for
comprehensive pregnancy-related services for women in a
manner that is consistent with its Constitution, case law
and statutes that protect a woman's right to reproductive
privacy." (Letter from Health and Human Services Agency,
dated June 9, 2005.)
4. Provision relating to woman's right to reproductive
choice is declaratory of existing law
To further guard a woman's right to reproductive choice
in California, the bill contains a provision affirming
the state's protection of that right through its
Constitution, its statutes, and case law. The provision
specifically affirms the California Supreme Court's
decision in People v. Belous (1969) 71 Cal. 2d 954, 958,
which preceded Roe v. Wade, supra. In Belous the Supreme
Court recognized that women have a fundamental right to
make childbearing decisions, including abortion,
rejecting the state's argument that California's criminal
abortion law was justified by a compelling state interest
in protecting the embryo or fetus, as demonstrated by
laws "which assertedly show that the embryo or fetus is
equivalent to an unborn child." The Court stated that
"all of the statutes and rules relied upon require a live
birth or reflect the interest of the parents." This
conclusion was central to the Court's protection of
women's reproductive choice. "By citing the Belous
decision in the legislation," proponents state,
"California reaffirms its legal tradition of protecting
women's reproductive freedom, while assuring it can
receive these funds without jeopardizing this freedom."
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Support: California Family Health Council (CFHC); Planned
Parenthood Affiliates of California Inc.; Maternal
and Child Health Access; American Civil Liberties
Union; American Association of University Women,
California; Maternal, Child, and Adolescent Health
(M.C.A.H.) Action
Opposition: None Known
HISTORY
Source: California Health and Human Services Agency; author
Related Pending Legislation: None Known
Prior Legislation: None Known
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