Abortion and America’s Moral Consciousness: the Legal and Cultural Battle to Define Pregnancy

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On November 16th, the Institutes of Medicine (IOM) hosted a panel for the Committee on Preventative Services for Women, the first of a series of meetings which will ultimately result in official recommendations for the Obama Administration’s final rules on what will be included as mandatory “preventative care and screening” for women under ObamaCare.  The final rules will be issued no later than August 1, 2011.

Abortion-inducing drugs (Ella and Plan B)[1] and contraceptives are being considered for placement in this “preventative care” regimen.  If abortion drugs and contraceptives are included, this would mean that all health insurance plans would provide 100% coverage for abortion drugs and contraception.  Anyone in America who is enrolled in a health plan would be forced to pay for abortion drugs and contraception through their insurance premiums.

However, this is not just an issue of funding abortion.  This situation also presents serious cultural implications.  Abortion proponents, such as Planned Parenthood, hope to influence the public perception of the nature of abortion and contraception.  They aim to transform abortion and contraception from being considered “elective” to being considered “basic” and normal in the public eye.  If abortion becomes merely one of many on a laundry list of accepted medical procedures, their hope is that America might just get used to it.

Fraught with ethical, political and medical controversy, abortion and contraception need a total public “make-over” before they can be culturally accepted as regular, basic health care.  A first step in achieving this would be to re-define pregnancy as a disease, and present abortion and contraception as its cure.  ObamaCare’s “preventative care” categorization is being exploited as a prime opportunity to accomplish this.

Planned Parenthood’s National Campaign

Planned Parenthood recently launched a carefully planned national campaign to lobby the Obama Administration to include contraception and certain abortion drugs as “preventative care” under the new health care law.

Planned Parenthood delivered this message directly during the IOM panel meeting.  Although no pro-life organizations were officially invited to advise the IOM, Planned Parenthood and the pro-abortion National Women’s Law Center were given prime spots on the panel.  They advised the IOM to include all FDA-approved contraceptives as “preventative care.”  This would include the abortion-inducing drug, Ella, which has been mis-categorized by the FDA as emergency contraceptives.

Moreover, during the November 16th panel, Planned Parenthood’s spokesperson blatantly advised the IOM to categorize contraceptives and abortion drugs as cures for the supposed plight of pregnancy; her first words to the IOM were: “I’m just going to jump ahead, pregnancy is dangerous.”  Pregnancy is the natural result of a healthy female reproductive system. It is not, and has never been, considered a medical illness; nor has contraception or elective abortion been considered a practice of medicine.  However, in order for Planned Parenthood’s plan to re-define abortion as therapeutic to work, pregnancy needs to be presented as a disease, as something dangerous (rather than something natural) for women.

Lastly, persons speaking before a government agency or committee are usually expected to disclose any existing conflicts of interest.  Planned Parenthood, however, failed to disclose its major financial interest in the matter; if contraceptives and abortion drugs are categorized as “preventative care,” Planned Parenthood will reap in millions in federal funds.  Planned Parenthood’s disingenuous motives could not be more evident.

Legislative Intent and the Mikulski Amendment

The section of Obama’s Affordable Care Act which mandates full insurance coverage for “preventative care” is the Mikulski Amendment, section 2713(a)(4).  Importantly, the Amendment does not explicitly list abortion or contraception as preventative care.  In fact, the legislative history of the Mikulski Amendment reveals Congress’ clear intent not to include abortion as preventative care.

During the Senate floor debate on the Amendment, Sen. Mikulski herself stated: “this amendment does not cover abortion.  Abortion has never been defined as a preventative service…There is neither legislative intent nor legislative language that would cover abortion under this Amendment, nor would abortion coverage be mandated in any way by the Secretary of Health and Human Services.”[2]

Sen. Mikulski also stated that her amendment is “strictly” concerned with preventing “diseases particular to women such as breast cancer and cervical cancer.”  Procedures that are intended to be included are limited to those that that are “life saving.”[3]

With that said, it appears that contraception should not be covered, either.  Pregnancy is not one of those “diseases particular to women such as breast cancer or cervical cancer.”  Contraception is used electively, and is not categorized as medically necessary or “life saving.”

However, there’s a catch.

Sen. Mikulski stated that, while surgical abortion is not explicitly allowed under the Amendment, “family planning” may be included.  Since the FDA has classified the abortion drugs, Plan B and Ella, as an emergency contraceptive, it follows that contraceptives and drug-induced abortions could be fully covered via the Mikulski Amendment.  Sterilization, as a known method of “family planning,” could also be covered.

Although the Mikulski Amendment appears to be limited to screenings and treatment for life-threatening diseases, it has the potential to contradict its own purpose by opening a back door for elective contraception, abortion and sterilization.  This loophole was identified and brought to Congress’ attention by pro-life groups during the health care reform debates.  But even with that knowledge, the Obama Administration went ahead and passed the health care reform bill.

So, it’s not just Planned Parenthood, but the current Administration itself leading the efforts to redefine pregnancy and remove the abortion issue from America’s moral consciousness.

Rights of Conscience and the Medical Profession

By executive order, President Obama guaranteed that employers and health insurance providers shall continue to exercise freedom of conscience in regards to abortion coverage under the new health care law.  In addition, the Affordable Health Act contains a provision which protects health insurers’ rights of conscience.  These reflect the long-standing federal policy of protecting rights of conscience for health care professionals and insurers.[4]   Categorizing contraceptives and abortion drugs as “preventative care” would violate all of these.

There are also consequences for medical professionals and students.  If providing contraception and abortion are “life saving” measures that are considered as “basic health care,” would nurses and doctors eventually be required to provide them?  Similarly, will medical and nursing students be required to learn how to perform abortions as part of their basic school curriculum?  If so, would that drive away good students from pursing health care careers?

Conclusion

In short, the development of the final rules for ObamaCare’s mandatory preventative care provision brings back the question of abortion in health care reform.  It is important to recognize that these regulatory changes could also have an impact on the cultural acceptability of abortion and the medical definitions of pregnancy and health care.  However, with pro-life groups vigilantly sounding the alarm bell on these issues, it is doubtful that abortion could ever be completely eradicated from America’s moral consciousness.
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[1] When the FDA approved of Plan B, it acknowledged that it can also work as an abortifacient.  The FDA stated that Plan B “may also work by…preventing attachment to the uterus…”  There continues to be an on-going debate regarding the abortifacient qualities of Plan B, in both the medical and religious communities.

[2] Congressional Record S12274 (daily ed. Dec. 3, 2009), available at http://thomas.loc.gov.

[3] Id.  See also, Press Release, Senator Barbara Mikulski, “Mikulski Puts Women First in Health Care Debate” (November 30, 2009), available at http://mikulski.senate.gov/Newsroom/PressReleases/record.cfm?id=320304.

[4] E.g., The Church Amendment, 42 USC 300a-7, protecting the rights of conscience of those who conscientiously object to participate in abortion or other health services for programs the receive federal funds from the HHS.

Editor