Montanans at hearing: Changes to Medicaid abortions to be costly, harmful, illegal
Single proponent: Changes long overdue, thoughtfully proposed
Montana Department of Public Health and Human Services (Photo by Matt Volz | Kaiser Health News).
Just one person spoke in favor of new rules the Montana Department of Public Health and Human Services proposed for Medicaid patients seeking abortions.
The rules would in most cases require a patient who uses Medicaid to get prior approval for an abortion to prove it is “medically necessary,” among other changes.
Derek Oestreicher, director of government affairs for the Montana Family Foundation, said the proposed changes are long overdue, thoughtfully proposed, and follow a thorough and independent review of Medicaid abortions in Montana.
He also said they ensure financial stewardship because they mean tax dollars will only be used to pay for abortions that are, in fact, “medically necessary.”
“It serves as an important verification that general fund dollars are not being used to fund unnecessary medical procedures,” Oestreicher said.
The Health Department will accept comments until 5 p.m. Jan. 20, 2023. Email comments to [email protected].
Gov. Greg Gianforte’s charitable giving through the Gianforte Family Foundation includes contributions to the Montana Family Foundation.
All the other people who testified spoke against the changes proposed by the Montana Department of Public Health and Human Services. Opponents included women who have received abortions, doctors, abortion providers, nurse practitioners and concerned citizens.
In order to receive approval for an abortion, Medicaid patients would need to provide personal medical information, such as their last menstrual period, number of times pregnant, behavioral health issues, and other information.
At the sometimes emotional hearing held via video, opponents said the proposed changes run contrary to Montana’s strong privacy protections; would delay and compromise care for patients who need abortions; conflict with Gianforte’s initiative to reduce “red tape” and stance of fiscal conservation; and would especially hurt people who are already in financial straits.
Abortion is legal in Montana with some restrictions. The Montana Constitution protects privacy, and the 1999 Montana Supreme Court decision in Armstrong v. State protects “procreative autonomy,” including abortion, based on privacy.
As such, the ACLU of Montana said the Health Department was circumventing the law — in this case and others — by proposing a change in an administrative “rule” instead of statute.
Representing the American College of Obstetrics and Gynecology, Missoula physician Leah Miller said pregnancy already is a time of inherent risk to the mother and fetus. Then, they also may encounter crises.
Examples include a pregnant person getting into a vehicle accident when the fetus is 18 weeks; finding out a fetus has no kidneys, a lethal condition; and being diagnosed with cervical cancer when a fetus is at 16 weeks.
“I’ve had too many of these tragic experiences,” Miller said of her patients.
She said most doctors aren’t performing elective abortions but dealing with life-threatening medical complications. And she said a change that would delay care will harm patients.
“Requiring pre-authorization for medically necessary abortions will affect my ability to care for my patients and put their lives at risk,” Miller said.
Lori Morgan said she got pregnant in 2002 as a student at Montana State University and a Medicaid patient. Because she was over 30 years old, she underwent genetic testing, as advised.
In that procedure, she said the needle went the wrong way, and her baby died. But Morgan said she didn’t know until she went for a checkup at 20 weeks.
“There was no heartbeat, and they informed me that the baby had died,” Morgan said. “It was a very, very sad, shocking time.”
She said women and their doctors should be the ones making decisions, any barrier between them would be unethical, and they should not have delays.
She said she was grateful to be able to receive a late-term abortion.
“I can’t imagine carrying this fetus until I had to give birth to it,” Morgan said.
Safron Britz, offering testimony through a proxy with All Families Healthcare, said she made the difficult choice to have an abortion during a terrible time in her life.
At a very young age, she had a son, she said.
“It was an incredibly traumatic experience for me, feeling forced, violated, never given a choice about any part of it,” she said.
Later on she received a positive pregnancy test, and it was a trigger, she said. She was already in a deep depression and unemployed.
“To say the timing wasn’t right is an understatement,” Britz said. “In my current state, I was not fit to mother another child.”
She said she was grateful her abortion was covered by Medicaid. She might not have been able to find the funds herself, she said, and she believes the story would have played out differently without Medicaid coverage.
“I’m glad I didn’t have to choose between keeping the lights on or risk eviction over having an abortion,” Britz said.
On the other hand, she said if she hadn’t been able to get an abortion, she would have used Medicaid for prenatal care, birth and extensive therapy — at a much greater cost to the program.
“I do hope this continues to be an option and Montana continues to support women’s needs and rights,” Britz said.
Helen Weems, a nurse practitioner, abortion provider and owner of All Families Healthcare, said stories such as the one Britz shared are familiar.
If the Health Department changes the rules, she said pregnant people will be forced to bear and raise children they don’t have the physical, emotional or financial capacity to raise.
Weems said research shows abortion bans increase health and economic disparities, and denying an abortion results in worse outcomes for patients and children.
“Not only is forced pregnancy and childbirth cruel and inhumane, it goes against the mandate of Montana Medicaid to provide necessary medical services to those in need,” Weems said.
Under the proposed changes, abortion providers who are nurse practitioners, such as Weems, physician assistants, and nurse midwives would not receive reimbursement, only physicians would.
Charlotte Creekmore, a family nurse practitioner, said she was “shocked and alarmed” at the proposed restriction on providers such as herself. She isn’t supervised by a physician, she said.
She also said she believes people’s health care information is confidential to them, and the changes would be costly and unethical. She said she sniffed a political agenda when she read the rule.
“I saw immediate red flags that there seemed to be an agenda to limit access to women or women-bodied persons to be able to receive the health care that they need,” Creekmore said.
Akilah Deernose, with the ACLU of Montana, said the changes go against well-settled law in Montana, so the Health Department is pushing a costly and harmful agenda through rulemaking instead.
“An agency cannot do by rule what is otherwise unconstitutional or in violation of statutes,” Deernose said.
She said that in the Armstrong decision, the Montana Supreme Court held that Montanans have a constitutional right to obtain an abortion “from a qualified health provider of their choosing,” not just from a physician.
She also said it’s the second time in six months the Health Department has turned to rulemaking to circumvent the law to discriminate against marginalized groups. She said the agency clearly knows it’s asking for a legal fight — and the result will be more financial liability for the state.
“The proposed rulemaking notices raise serious concerns as to whether the department respects the three-party system of government and understands constitutional obligations,” Deernose said.
Wednesday, the Health Department declined to comment on the allegation it was using rulemaking to sidestep Montana law.
At least a couple of people said the proposed changes, which the department itself acknowledged would cost more money in document review, runs contrary to the governor’s initiative to reduce red tape.
“Don’t talk out of both sides of your mouth,” commenter Pat Mischel said.
Stephanie McDowell, executive director of Bridgercare in Bozeman, agreed. She said no one should be denied coverage because they are low-income and use public insurance, and the proposal improperly inserts government in private medical decisions.
“This is also contradictory to what the administrative goals have been around red tape and reducing government regulation,” McDowell said.
Several people cited statics to support their opposition.
Timothy Mitchell, a physician with board certification in obstetrics and gynecology, said Montana already has the sixth-highest rate of pregnancy-related deaths, 40.7 deaths for 100,000. He said the rates are seven times higher for Native American women in the state.
“This is unacceptable,” Mitchell said. “ … Delaying medically necessary abortions will only make this crisis worse.”
Kelsey Conophy, of Bozeman, said Montana already has a high suicide rate, the third highest in the country in 2020, and the changes would lead to more preventable deaths.
She pointed to a psychiatry study in the Journal of the American Medical Association, which reviewed deaths of younger women from 1974 to 2016 and found abortion restrictions may have had a negative effect on suicide rates.
“Not only is this directly at odds with the mission of the Department of (Public) Health and Human Services, but it also goes against the expected role of our state’s government, to support and protect its people,” Conophy said.
Nicole Smith, director of Blue Mountain Clinic in Missoula, said the idea is harmful, especially to low-income Montanans, and it’s politically unpalatable too. Just five months ago, she said 70 percent of Montanans said they do not support government interference in abortion access in the state.
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