As states try to limit abortions, Montana wants to redefine what’s medically necessary

Montana’s conservative leaders, barred by the courts from passing legislation imposing significant statewide abortion restrictions, are trying to tighten the state’s Medicaid rules to make it harder for low-income women to obtain abortions.

The Montana Department of Public Health and Human Services proposes defining when an abortion is medically necessary, restricting who can provide such services, and requiring prior authorization for most cases.

The drive to change the rules is driven by Republican Gov. Greg Gianforte’s administration’s belief that health care providers should apply existing rules that allow Medicaid reimbursements to cover abortions that are not medically necessary.

“Taxpayers shouldn’t foot the bill for voluntary abortions,” said Gianforte spokeswoman Brooke Stroyke.

Medical professionals have said that the term “elective abortions” can misrepresent the complex reasons someone can request an abortion and prevent health care providers from making their best clinical judgment. Laurie Sobel, associate director for women’s health policy at KFF, said that appears to be the goal of the Montana proposal, which focuses on defining medically necessary abortions.

“It looks like Montana is trying to restrict access to abortion under Medicaid and take away the ‘medically necessary’ conversation between a doctor and a patient,” Sobel said.

Democratic lawmakers and many health care providers have said existing state regulations ensure providers check and document why an abortion is needed to protect a patient.

Democratic state Rep. Ed Stafman, who recently chaired the Interim Committee on Children, Families, Health and Human Services, said the proposed changes were unnecessary because the state already complies with federal Medicaid regulations on abortion.

“It’s clear that this is part of the anti-abortion agenda,” Stafman said.

States may not use federal funds to pay for abortions except in cases of rape or incest, or when a woman’s life is in danger. However, states have the option to use their own money to provide reimbursements under the joint state-state Medicaid program in other circumstances.

Montana is one of 16 states that allow state Medicaid funds to be used for medically necessary abortions. A 2017 study published in the journal Obstetrics & Gynecology found that states with Medicaid coverage for medically necessary abortions had an average 16% lower risk of severe maternal morbidity for this population than states without such coverage.

Montana’s proposed changes are more restrictive than rules in many other states that allow medically necessary Medicaid abortions. According to a 2019 report by the US Government Accountability Office on state compliance with abortion coverage rules, at least nine states that use state funds to pay for Medicaid abortions do not require health care providers to report the circumstances of an abortion. For example, California’s Medi-Cal program does not require medical justification for abortions and requires pre-approval only if the patient requires hospitalization.

Most states that allow medically necessary Medicaid abortions, including Montana, are court-ordered to fund the procedure as they would other public health services for low-income people.

Montana’s reporting is tied to a 1995 court case that found the state’s Medicaid program was established to provide “necessary medical services” and that the state cannot exclude certain services. Existing state eligibility rules governing when a Medicaid-funded service is medically necessary include when pregnancy would cause distress, pain, or a physical deformity; lead to illness or infirmity; or threaten to cause or aggravate disability.

Under the Health Department’s new proposal, abortions would only be considered medically necessary if a doctor — not some other type of provider — certifies that a patient has an illness, condition or injury that threatens her life, or a physical one or mental condition that means it would be “significantly aggravated” by pregnancy.

Elsewhere, courts have dismissed attempts by some states to create a definition of medically necessary abortion outside of existing Medicaid standards as constitutional violations of equal protections. The Alaskan Supreme Court overturned a 2013 state law that changed the definition of a medically necessary abortion because it treated Medicaid beneficiaries who wanted an abortion differently than those seeking pregnancy-related procedures like a cesarean. And the New Mexico Supreme Court ruled in 1999 that a state rule restricting Medicaid-funded abortions had different standards of medical necessity for men and women.

Montana opponents of the proposed changes have threatened a lawsuit if the regulations are passed.

The state Medicaid program includes more than 153,900 women. From 2011 to 2021, the program paid for 5,614 abortion procedures, which typically accounts for nearly a third of all abortions in the state, according to state data.

Currently, Montana allows physicians, physician assistants, and advanced nurses to perform abortions. At least one Montana clinic that offers abortions to Medicaid beneficiaries is run by a nurse, Helen Weems of All Families Healthcare, who is suing the state for trying to prevent nurses from performing abortions.

Medical service providers decide whether an abortion is medically necessary and then submit a form to the state health department.

The proposed change would require providers to obtain government approval before performing an abortion, except in emergencies, and provide supporting evidence to justify medical necessity. This pre-approval process would involve the provision by state officials of details of the patient’s medical history, e.g. For example, how many pregnancies a person has had, the date of their last menstrual cycle, whether they smoke, the results of pregnancy tests, and whether they have ever had behavioral problems or substance use disorders.

Martha Fuller, president and CEO of Planned Parenthood of Montana, said providers already collect this information but don’t send it to the state. Prompting them, she said, will have a deterrent effect that could discourage people from seeking help or make them pay for it out of their own pocket if they can.

“Patients might feel, ‘Oh, and everything I tell you is going to be shared with my insurer now so they can make a decision about whether or not I can have an abortion?'” Fuller said.

In Montana, a patient who desires a medical abortion usually has it through a nurse or physician assistant, rather than going through one of the few doctors who offer this type of care through Medicaid, Fuller said. She said Medicaid patients would face longer waits if the new rules were implemented while waiting to see a doctor. And waiting for prior approval would increase the time in limbo.

Telemedicine helps provide access to scattered resources in the large, rural state, but Montana’s proposed changes would require a physical exam.

“Patients may need to have a more invasive procedure. They may have to travel. They need to take more time off work,” Fuller said. “There will be patients who choose not to have an abortion because they cannot afford it.”

Of the 1,418 abortions covered by Montana Medicaid in 2020 and 2021, one was performed because a person’s life was in danger, according to state records. The rest was done under the broader medically necessary justification, with documentation on these cases including a brief explanation of why the procedure was necessary.

According to the state’s proposed rules, the lack of evidence supporting the procedures “leads the department to reasonably believe that the Medicaid program pays for abortions that are not actually medically necessary.”

In 2021, state lawmakers passed and Gianforte signed three laws restricting abortion, which a court temporarily blocked. The Montana Supreme Court upheld the injunction, arguing that the state constitution’s right to privacy extends to abortion.

Gianforte and the attorney general have asked the Montana Supreme Court to overturn the two-decade-old ruling linking abortion to the right to privacy. The Republican legislature also introduced a number of abortion-related bills during the legislature, including a proposal to exclude abortion from the state’s right to privacy.

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