The Center for Reproductive Rights commends the Committee for underscoring the rights of pregnant women to safe pregnancy through this hearing and through the "Mothers and Newborns Health Insurance Act" (S. 724). The Center is a non-profit legal advocacy organization dedicated to protecting and defending women's reproductive rights, including the rights of pregnant women to safe pregnancy. The Center submits this testimony to support efforts to expand access to pregnancy-related care through legislation such as the "Mothers and Newborns Health Insurance Act." This bill not only addresses a significant gap in our nation's healthcare system, but also mitigates the negative effects of misguided amendments to the State Children's Health Insurance Program (SCHIP) recently adopted by the Department of Health and Human Services.

I. "Mothers and Newborns Health Insurance Act" Addresses a Significant Healthcare Gap

Currently, the United States ranks twenty-first in the world in rates of maternal mortality and twenty-eighth in the world in rates of infant mortality. It is estimated that every week, 8,500 children in the United States are born to mothers who lack access to prenatal care. Furthermore, it is likely that half of all maternal deaths in the United States could be prevented through early diagnosis and appropriate medical treatment of pregnancy complications. This is shocking given the availability of unsurpassed medical care and technology in the United States and widespread knowledge of the importance of early and ongoing prenatal care to help ensure a healthy pregnancy and optimal birth outcome.

A primary barrier to timely prenatal care, and thus to improving the health of pregnant women and newborns in the United States, is a lack of health insurance coverage. Despite the Medicaid expansions implemented in the late 1980s and early 1990s, recently released figures from the March of Dimes indicated that nearly one in five women of childbearing age (ages 15-44 years) in the United States were still uninsured in 1999. See Kenneth E. Thorpe et al., The Distribution of Health Insurance Coverage Among Pregnant Women, 1999, prepared for the March of Dimes (Apr. 2001), available at http://www.modimes.org/files/2001FinalThorpeReport.pdf (last visited Apr. 16, 2002). Thus, further expansions are necessary to reach the uninsured.

Moreover, as this Committee and the Administration have recognized, there is a troubling disparity in access to prenatal care between white women and minority women. Rates of maternal mortality and morbidity and infant mortality - which are highest among non-white populations - reflect this disparity. While research suggests that racial and ethnic inequalities in medical treatment would persist in some measure even if access to health insurance were equalized, see Key Facts: Race, Ethnicity, and Medical Care, The Henry J. Kaiser Family Foundation (October 1999), it also appears that increased access to health insurance coverage would reduce these disparities based on race and ethnicity. Id.

Therefore, increasing access to health insurance coverage for pregnant women is vital for two reasons. First, insuring access to early and ongoing pregnancy-related care for women in all ethnic and racial groups must be the first step in any efforts to reduce overall rates of maternal mortality and morbidity, and to erase the disparity between the quality of care received by women of color and white women. Second, increased access to prenatal care will improve the health of newborns throughout the country and similarly work to erase disparities in infant mortality rates between racial and ethnic groups.

The "Mothers and Newborns Health Insurance Act" serves these goals by increasing access to insurance coverage. The legislation provides insurance coverage for prenatal care, delivery and post-partum care to targeted, low-income pregnant women. The legislation also provides coverage for newborns for their first year of life. Through these provisions, S. 724 ensures better birth outcomes and healthier mothers and children.

II. The "Mothers and Newborns Health Insurance Act" is Far Superior to the New SCHIP Regulation Amendments.

Unlike S. 724, the recent amendments to the State Children's Health Insurance Program (SCHIP), promulgated by the Department of Health and Human Services (HHS), fail to adequately address the overwhelming need for healthcare coverage for pregnant women. Instead of extending benefits to pregnant women, the new regulation classifies the fetus as an "unborn child" and expands coverage to "an individual in the period between conception and birth up to age 19." 67 FR 61956-01 (Oct. 2, 2002). It is greatly disturbing that HHS has promoted amendments to the SCHIP regulations to extend the plan to cover fetuses, while patently ignoring the health needs of pregnant women. This new policy is fraught with legal and practical problems:

• The regulation could place the health of pregnant women at risk and threatens a woman's integral right to control her own healthcare.
• By defining a fetus as a "child" from the moment of conception for purposes of SCHIP, the regulation is in clear tension with fundamental principles of constitutional law.
• Low-income pregnant women deserve actual, not merely incidental, health insurance coverage that covers all of their pregnancy-related needs.
• There are superior means of ensuring prenatal care for women whose incomes fall within the SCHIP-eligibility criteria in their state, such as the "Mothers and Newborns Health Insurance Act."

The Center for Reproductive has significant concerns with the new amendments, as outlined below. The Center urges Congress to enact the "Mothers and Newborns Health Insurance Act" to address and remedy the significant gaps left by the SCHIP program.

A. By Covering the Zygote, Embryo or Fetus and Not the Woman Herself, the Regulation Could Place the Health of Pregnant Women at Risk.

Although the Administration claims that the goal of the new regulation is to provide for comprehensive prenatal care in order to improve the pregnant woman's health, the mechanism chosen could actually place the woman herself at risk. The regulation does not provide any insurance coverage for pregnant women in the post-partum period, nor does it provide for comprehensive care for pregnant women during either pregnancy, or labor and delivery.

First, the standard of care for pregnant women requires continuity of medical treatment from prenatal care through post-partum care. The American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP) recommend that the physical and psychosocial status of the mother be assessed on an ongoing basis following hospital discharge. They further recommend that four to six weeks after delivery the mother should receive a post-partum review and examination. American Academy of Pediatrics & American College of Obstetricians and Gynecologists, Guidelines for Perinatal Care (4th ed. 1997).

Unfortunately, the regulation does not allow states to provide SCHIP coverage to pregnant women for any post-partum care. This is because under the regulation, SCHIP would cover only the "child" in utero, not the pregnant woman. While the pregnant woman would incidentally receive some covered care as a result of carrying the "child" within her uterus, that covered care would be available only during "the period from conception to birth." The moment after the birth of her child, a woman who may have been covered for any incidental care as a result of having an SCHIP-covered fetus in utero, would appear to lose insurance coverage. The woman would therefore not be eligible for any covered care during the post-partum period, including for the post-delivery hospital stay, care for her incision received during a Cesarean section delivery, for an episiotomy or any other post-delivery complications. This result flies in the face of sound medical and public health policy, not to mention the regulation's stated goals.

In contrast, S. 724 provides coverage to pregnant women for post-partum care, thus remedying this troubling omission.

Second, by insuring only the fetus, it is unclear whether the regulation authorizes insurance coverage for pregnant women for medical treatments that do not have a direct impact on the well-being of the fetus. Thus, for example, if an epidural is needed during delivery, would that be covered even though it would benefit only the woman, and not the fetus? If the woman broke her leg during the pregnancy, would treatment be covered? And, since eligibility for benefits only exists in relation to a living fetus, it is unclear whether any benefits would be available to the mother for complications following a miscarriage - technically, since the beneficiary is no longer alive, such benefits would not be available. While we agree with the statement made by Secretary Thompson regarding the importance of prenatal services as "a vital, life-long determinant of health" for the fetus, HHS to Allow States to Provide SCHIP Coverage for Prenatal Care, HHS News Release, January 31, 2002, we believe that ensuring meaningful health benefits for the pregnant woman is an equally important goal, and one that this regulation fails to meet - but that S. 724 directly addresses.

Third, targeting coverage to the fetus also appears to create serious conflicts over health care decision making, all of which threaten a woman's integral right to control her own healthcare. It is unclear under the regulation how the interests of the fetus and the pregnant woman should be balanced when their health care needs diverge, or where treatments needed by the pregnant woman could actually be harmful to the fetus. For example, a woman with mental illness may require medications, such as lithium, that are contraindicated for the fetus. See, e.g., Jennifer R. Niebyl, M.D., Drugs in Pregnancy and Lactation, in Steven G. Gabbe, M.D., Jennifer R. Niebyl, M.D., Joe Leigh Simpson, M.D., eds., Obstetrics: Normal and Problem Pregnancies at 249, 255 (3d ed. 1996). Similarly, a woman diagnosed with breast cancer may not be covered for radiation treatments needed to save her life. Would the treatments in these cases be covered? Could the state intervene on behalf of the fetus? What would happen if the life-saving treatment was for the fetus, but it endangered the mother - could the mother be compelled to undergo the treatment? Who would decide these types of coverage questions - the state, the federal government, the doctor, or the pregnant woman herself? Could the state or the other parent's health care decisions trump the pregnant woman's, even where her own health could be adversely affected? These are all troubling questions that are raised by the regulation - but that would not be implicated by S. 724 since the legislation recognizes the pregnant woman's right to healthcare.

B. This Regulation Seeks to Chip Away at Fundamental Principles of Constitutional Law.

By defining a fetus as a "child" from the moment of conception for purposes of SCHIP, the regulation is in clear tension with fundamental principles of constitutional law. The Supreme Court clearly stated in Roe v. Wade that "[T]he word 'person,' as used in the Fourteenth Amendment, does not include the unborn," 410 U.S. 113,158 (1973). The Administration's impractical attempt to force the definition of a child to include a fetus results in bizarre outcomes and administrative confusion, revealing the Administration's true goal of chipping away at fundamental rights. For instance, under current law, states track eligibility for public benefits using Social Security numbers, which all Americans receive when they are born. Since fetuses are not eligible for Social Security numbers, it is unclear how states will track their eligibility for benefits until they are born. Will they create a whole new individual identifier just for fetuses? There will be further implications for tax rules as well. Generally, an American citizen is only counted for taxation purposes after they are born. Does the granting of legal personhood under the regulation mean that fetuses could be taxed inside the womb? Alternatively, could they be claimed as a deduction before they are born? These examples demonstrate the irrationality of this policy and the confusing results it would generate.

Other Supreme Court cases, such as Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) and Stenberg v. Carhart, 530 U.S. 914 (2000) have emphasized the importance of protecting women's health in the face of laws restricting access to abortion. Because the regulation elevates the fetus' health to the potential detriment of the woman's health, this conflict places the regulation in further tension with Supreme Court precedent by potentially jeopardizing the woman's health.

The regulation indicates that the Administration cares more about promoting the "rights" of a fertilized egg with an eye to building the legal foundation to overturn the Supreme Court decision in Roe v. Wade, than it does about women's health. The best way to improve women's health is to recognize their right and ability to make private, medical decisions about their own bodies.

C. The Regulation Denigrates Women Without Achieving Its Purported Goal.

Low-income pregnant women deserve actual, not merely incidental, health insurance coverage that covers all of their pregnancy-related needs, including those that extend into the critical post-partum period. By providing insurance for the fertilized egg or fetus, but not for the woman herself, this regulation denigrates women - treating them as mere vessels for a fetus, undeserving of health care in their own right. Given the superiority of these alternative means of achieving improved birth outcomes (see below), the Administration's decision to promulgate the regulation -- and inexplicably withdraw support for other measures -- must be seen as a political gambit, unrelated to improved pregnancy-related care. It can only be seen as an ideologically-based attempt to redefine a fetus as a "person," in conflict with the Supreme Court's ruling in Roe v. Wade, 410 U.S. 113 (1973) - without regard to whether health care coverage is actually increased.

D. There Are Superior Means of Ensuring Prenatal Care for Women Whose Incomes Fall Within the SCHIP-Eligibility Criteria in Their State, Including the "Mothers and Newborns Health Insurance Act."

The regulation is all the more unacceptable because it is not necessary to ensure prenatal care for women whose incomes fall within the SCHIP-eligibility criteria in their state. There are at least two superior means of achieving this goal: 1) the "Mothers and Newborns Health Insurance Act," which has been proposed with bipartisan support to expand SCHIP to include pregnant women; and, 2) until federal legislation is in place, a streamlined process for obtaining § 1115 waivers to add pregnant women to a state's SCHIP program (as New Jersey and Rhode Island have done).

The Center supports the regulation's stated goal of expanding access to early and regular prenatal care in order to ensure the health of both pregnant women and newborns, but questions SCHIPS' approach of allowing health insurance coverage for a zygote, embryo and fetus in utero. Because there are other less controversial and more effective ways of achieving the stated goal, the Administration's choice of this strategy is curious at best.

III. Conclusion

It now falls to Congress to stand up for the healthcare needs of pregnant women through the "Mothers and Newborns Health Insurance Act." The Center for Reproductive Rights urges the Senate to quickly enact this legislation to expand healthcare coverage to uninsured pregnant women. Once enacted, this legislation would allow states to go beyond the current framework of the SCHIP program and provide insurance to pregnant women in addition to their children.

Thank you.