Michigan: Democrats Reproductive Health Act to finally repeal "rape insurance" & other ugly restrictions

Last Tuesday I noted that a package of bills designed to codify various ACA protections into state law here in Michigan (most of which are low-hanging fruit of my own healthcare wish list which I posted back in February) had managed to make it halfway through the legislative process: Five of them have passed the Michigan House, but not the Senate; the other three have passed the Michigan Senate...but not the House. I applauded the state legislature for pushing these bills halfway through and encouraged them to get the other half of the job done.

I was therefore highly amused and pleased to see MI Governor Gretchen Whitmer call for doing that the very next day in her "What's Next" address:

Lowering the Cost of Health Care: In 2013, Republicans and Democrats came together to establish Healthy Michigan thanks to the Affordable Care Act. It expanded care to over 1 million people, lowered costs, and improved health outcomes.

What’s next: Codify the commonsense, cost-saving measures of the Affordable Care Act including: protections for pre-existing conditions, permitting children to remain on their parent’s insurance until 26, banning annual or lifetime caps on care, and requiring insurance plans to cover essential services like ambulance services, birth control, mental health treatment, and preventative care.

"The ACA is one of the most consequential pieces of legislation I have seen passed in my lifetime," said Senator Kevin Hertel (D-St. Clair Shores). “While ongoing threats to the protections provided continue in federal court, I am grateful to play a part in ensuring Michigan residents will never have to worry about their ability to access affordable health coverage. I look forward to getting these bills across the governor's desk this fall."

“Ensuring safe, affordable, and equitable access to healthcare, is at the very least, the state can on behalf of our residents,” said Representative Matt Koleszar (D-Plymouth). “Essential benefits are necessary for every Michigan resident, and I look forward to working with the Governor to ensure these critical protections are enshrined in the Michigan law."

Since then, Gov. Whitmer and other top Michigan Democrats have been amplifying the call to action:

These ACA actions have already helped lower medical costs for Michiganders. Let's make them permanent.

• Protections for pre-existing conditions
• Allows kids to remain on parents' insurance until 26
• Bans annual and lifetime caps
• Requires coverage for essential services

I'll of course be very happy to see these scratched off my wish list, although again, these are mostly pretty low-hanging fruit; for the most part they don't actually change existing law or policies, they're mostly just insurance (no pun intended) if those policies are changed at the federal level.

I closed my posts in February and again last week by noting one interesting omission:

There's also a few items like the Actuarial Value bill which could probably use some enhancements/ clarification, and they don't even touch on the other items on my list. In particular, I'm very surprised not to see the GOP-passed "rape insurance rider" law repealed, although it's possible that this was already made moot via last year's Proposal 3 and/or the recent repeal of the state's abortion prohibition law from 1931.

Well, lo and behold, guess what? Via Paul Egan of the Detroit Free Press yesterday:

Dems to end 24-hour abortion waiting period, ban on Medicaid funding of procedure

LANSING — Michigan Democrats said Wednesday they will repeal laws that require a 24-hour waiting period to have an abortion performed, impose what they say are costly and unnecessary regulatory burdens on abortion clinics, prohibit abortions funded by Medicaid, and ban private health insurers from automatically covering abortions under standard policies.

The repeals, which will be grouped under a new Reproductive Health Act through an 11-bill package, are needed to ensure full implementation of Proposal 3, which voters approved last November to enshrine reproductive rights in the state constitution, said Rep. Laurie Pohutsky, D-Livonia.

...The only significant abortion restriction Pohutsky identified that is not targeted for repeal is a law requiring parental consent before abortions can be performed on minors under age 18. Democrats were concerned including that piece might delay approval of the rest of the package, she said.

...Under another law targeted for repeal, the state prohibits private insurers from automatically paying for abortions. Instead, people must purchase separate “riders” to obtain such coverage, despite the fact the need for an abortion may not be anticipated in advance.

That wording is a wee bit euphamistic. The only exceptions in the law are to save the woman's life, and the whole point of buying insurance is that you never know when you might need healthcare services in the future, which means that the most common scenario in which "the need for an abortion isn't anticipated in advance" would be a case of rape.

I'll obviously be pleased to see the entire Reproductive Health Act package pass both chambers and be signed into law, but it's the "rape insurance rider" one which I find the most disturbing. As I noted when it was first passed by the then-Republican controlled legislature in 2014:

Last December, the Michigan Republican Party passed a revolting law which legally prevents any health insurance plan sold in the state from covering abortion except in cases where the woman's life is in danger. Every single Republican in the state Senate and House voted for it, along with (I'm ashamed to say) 3 "Democrats":

The law, which takes effect in March, will force women and employers to purchase a separate abortion rider if they would like the procedure covered, even in cases of rape and incest.

This means, in effect, that since March 13, any woman who needs an abortion has to either pay for it herself or has to buy a separate "abortion rider" to cover the cost, even if she becomes pregnant from being raped.

As humiliating and degrading as the "rape insurance" law is, as Michigan political blog Eclectablog notes, it actually gets far worse, because:

Now we find out that Michigan women who purchase their health insurance on their own (not part of a group insurance plan) don’t have the option to purchase the extra abortion rider on their insurance. The reason? Because the bill passed by Republicans violates an Affordable Care Act provision that prohibits insurers from offering riders to standard insurance. In other words, their law makes it impossible for women not covered by a group policy to obtain the insurance rider that Republicans are forcing them to buy if they want that coverage.

That's right. As the Detroit News story explains:

the state “opt-out” rider law clashes with provisions of the Affordable Care Act, which outlaws both separate riders and any government subsidy of abortion. Under federal law, insurers cannot offer a rider to a standard, inclusive policy. And the new state law bars insurers from including elective abortion coverage in any policy, on or off the exchange.

It's also worth noting that this particular bit of ugliness in Michigan's legislative history has special meaning for Gov. Whitmer, who was the MI Senate Minority Leader at the time the bill passed:

Before her colleagues voted a controversial bill restricting abortion insurance into law, Michigan Senate Minority Leader Gretchen Whitmer (D- East Lansing) begged them to consider the rights of women. In her speech Wednesday, the lawmaker held back tears as she revealed something she'd never told most people: she was raped in college.

For several minutes Wednesday afternoon, Whitmer read from notes on the Senate floor, condemning her Republican colleagues who were expected to pass the measure and the group, Right to Life of Michigan, who pushed the measure through.

...But after more than six minutes of speaking, Whitmer put down her prepared remarks, saying she couldn't push a colleague to share a personal story if she wasn't brave enough to tell one of her own:

I'm about to tell you something that I've not shared with many people in my life. But over 20 years ago I was a victim of rape. And thank God it didn't result in a pregnancy, because I can't imagine going through what I went through and then having to consider what to do about an unwanted pregnancy from an attacker. And as a mother with two girls, the thought that they would ever go through something like I did keeps me up at night.

I thought this was all behind me. You know how tough I can be. The thought and the memory of that still haunts me. If this were law then and I had become pregnant I would not be able to have coverage because of this. How extreme, how extreme does this measure need to be? I'm not the only woman in our state that has faced that horrible circumstance.

I'm not 100% certain, but I think this is the official Reproductive Healthcare Act of 2023; the legislative text is remarkably short, likely because while most of it basically reiterates the existing state constitutional provisions included in last year's Proposal 3, the rest of it literally consists of simply repealing several existing laws:

HOUSE BILL NO. 4949

A bill to list certain constitutional rights related to reproductive freedom; to prohibit the violation of certain rights and provide remedies; to provide for the powers and duties of certain state and local governmental officers and entities; and to repeal acts and parts of acts.

...Sec. 3. (1) As provided in section 28 of article I of the state constitution of 1963, the following apply in this state:

(a) Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including, but not limited to, prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.

(b) An individual's right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means.

(c) Notwithstanding the above, the state may regulate the provision of abortion care after fetal viability, provided that in no circumstance shall the state prohibit an abortion that, in the professional judgment of an attending health care professional, is medically indicated to protect the life or physical or mental health of the pregnant individual.

(d) The state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived, or alleged pregnancy outcomes, including, but not limited to, miscarriage, stillbirth, or abortion. Nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.

(2) In determining whether an abortion is medically indicated to protect the life or physical or mental health of a pregnant individual under subsection (1)(c), the attending health care professional may consider any factor that the attending health care professional considers relevant to the well-being of the pregnant individual, including, but not limited to, the pregnant individual's age and physical, emotional, psychological, and familial considerations.

Sec. 5. (1) An individual or entity, or the individual's or entity's legal representative, who alleges a violation of the individual's or entity's rights under section 28 of article I of the state constitution of 1963 or section 3 by a governmental entity may bring a civil action for injunctive relief, damages, or any other appropriate remedy, in the appropriate state or federal court.

(2) The attorney general may enforce section 3 through a civil action for injunctive relief, damages, or any other appropriate remedy.

(3) A court shall award reasonable costs and attorney fees to a plaintiff who prevails in an action brought under this section.

Sec. 7. A governmental entity shall not violate section 28 of article I of the state constitution of 1963.

Enacting section 1. The following acts and parts of acts are repealed:

• (a) Sections 90h and 323 of the Michigan penal code, 1931 PA 328, MCL 750.90h and 750.323.
• (b) The legal birth definition act, 2004 PA 135, MCL 333.1081 to 333.1085.
• (c) 2002 PA 360, MCL 333.1091.
• (d) The Abortion Insurance Opt-Out Act, 2013 PA 182, MCL 550.541 to 550.551.

• Enacting section 2. This act does not take effect unless all of the following bills of the 102nd Legislature are enacted into law:
• (a) Senate Bill No.____ or House Bill No. 4950 (request no. 00312'23 a *).
• (b) Senate Bill No.____ or House Bill No. 4958 (request no. 03049'23 *).

I looked up the actual acts being repealed; from what I can tell:

• 750.90h had penalties for so-called "partial-birth abortions" which aren't actually a thing anyway
• 750.323 defined providing an abortion for a "quick child" as manslaughter ("quick child" apparently refers to a fetus past around 18 weeks, I think)
• 333.1081 - 1085 appear to essentially be "fetus = legally defined as people" definitions
• 333.1091 looks like the law prohibiting state funds to be used to pay for abortion via Medicaid (I think)
• 550.541 - 551 appear to be the "rape insurance rider" law

Sadly, Michigan is hardly the only state with such a law; 25 other states have some sort of restrictions on ACA exchange policies being able to include abortion coverage, and 11 states (including Michigan) also prohibit off-exchange policies from doing so. 22 states prohibit public employee insurance plans from covering abortion either.

Hopefully all three of these lists will drop by one (or more) in the near future.