Abortion ban defies Medicaid protection for victims
Texas’ new abortion ban makes no exceptions for pregnancies that result from rape or incest. Nearly a month after it was enacted, state health officials still won’t say whether that includes Texans on Medicaid, a small but critical population that they are required to help access the procedure.
Under federal Medicaid rules, states are obligated to cover abortions in rare circumstances, including for victims of sexual abuse. The new Texas law prohibits abortions after six weeks of pregnancy and allows nearly anyone to sue those who defy the restrictions. It is at least temporarily in place while state and federal courts review whether it is constitutional.
The law appears to have forced the Texas Health and Human Services Commission into a predicament: either it flouts the state ban or it violates the long-standing federal guidelines.
The agency has not said how it is complying with either directive; a spokeswoman declined to comment, citing the pending litigation. In its Medicaid handbook, the agency still provides instructions for submitting abortion claims for reimbursement.
The Department of Justice pointed to the Medicaid impact in a lawsuit it filed earlier this month against the Texas ban. A hearing on that suit is scheduled for Friday.
“The statute arbitrarily denies Medicaid beneficiaries coverage of a procedure for which Medicaid coverage is mandatory,” lawyers for the department wrote in their complaint.
Abortion providers say they have not received clarification since the law took effect on Sept. 1. Some said the reimbursement process was already so cumbersome that they had taken to finding other funding sources for eligible abortions or writing off the procedures as charity care. Earli
er this year, a federal appeals court allowed state leaders to kick Planned Parenthood out of the Medicaid program altogether.
There is no hard data on the number of Medicaid recipients in Texas who obtained abortions. The safety net program covers more than 4 million low-income Texans, most of them under age 21. The state is one of a dozen that have not expanded Medicaid under the Affordable Care Act.
As of June, there were 324,000 pregnant women enrolled in Medicaid, more than double the number before the start of the coronavirus pandemic. The federal government has temporarily prohibited states from kicking Medicaid recipients from their rosters as part of its public health response.
Groups that support abortion access say the ban will most directly harm low-income and minority Texans, many of whom lack the time and resources to travel to a state where the procedure is still legal. Abortion clinics in Oklahoma and other surrounding states have reported huge increases in demand from Texans this month.
Nicole Huberfeld, a law professor who specializes in Medicaid at Boston University, said even if the state is no longer complying, the federal government may choose not to intervene.
“The biggest tool, obviously, is withholding funding,” she said. “And the law allows the federal government to withhold all Medicaid funding if a state is noncompliant. But that has never happened because, as you might imagine, that actually would be harmful to Medicaid beneficiaries.”
But Huberfeld said the Biden administration has arguably bigger battles to wage with Texas, including over the state’s refusal to expand Medicaid. The White House also wants to roll back the 1977 provision that bans federal funding for most abortions, known as the Hyde Amendment.
A spokesman for the Biden administration did not respond to a request for comment.
South Dakota is the one state that openly violates Medicaid’s rape and incest provisions. A 2019 report by the U.S. Government Accountability Office found it had not been complying with the rules for 25 years, and that federal health officials had been unaware. Neither the Trump nor the Biden administrations have taken steps to bring South Dakota into compliance.
In Texas, most of the Medicaid claims are handled by private companies known as managed care organizations. Under Senate Bill 8, the abortion ban, they could be liable to private litigation if they were to reimburse providers for a covered Medicaid abortion. Several of the biggest companies either did not respond to requests for comment on how they’re proceeding or referred questions to the state health agency.