SCHIP: Unborn Child Rule
Background: First enacted into law in 1997, the State Children’s Health Insurance Program (SCHIP) provides health insurance for low-income children. The authorization for SCHIP was set to expire September 30, 2007. At year’s end, funding at the then current level was extended to March 1, 2009.
Since 2002, a federal regulation has defined SCHIP coverage to include children from conception to birth, allowing states to provide prenatal care and other health services to the child and the child’s pregnant mother. The regulation is commonly called the “unborn child rule.” See: Federal Register, Vol. 67, No. 191 (Oct. 2, 2002) at: frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&docid=02-24856-filed.pdf. Fourteen states have chosen this coverage option: AR, CA, IL, LA, MA, MI, MN, OK, OR, RI, TN, TX, WA, WI.
It is common to include successful regulations or waivers in reauthorizations. However, no matter the purpose, pro-abortion forces did not want any provision in the bill that mentioned the “unborn child.”
Senate: On January 29, 2009, during consideration of a bill to reauthorize the State Children’s Health Insurance Program (SCHIP) (H.R. 2), the Senate voted, 39-yes, 59-no, to reject Senate Amendment 80 by Sen. Orrin Hatch (R-UT) and 26 cosponsors to codify the unborn child rule in law (Roll Call 26).
During the debate, Sen. Barbara Boxer (D-CA) referred to the 2002 unborn child rule as “the divisive Bush regulation” and stated that it “only covers the unborn child but not the mother” (Congressional Record, S1032, 1/29/09). Sen. Hatch, however, correctly described his amendment as codifying “the 2002 HHS regulation which gives States the option of providing CHIP coverage to children before as well as after birth” and of providing “health services to the mother for 60 days after the birth of her child” and “health coverage to pregnant women for issues not relating to the pregnancy” (Congressional Record, S1031, 1/29/09).
On January 28, 2009, Bishop William Murphy, Chairman of the USCCB’s Committee on Domestic Justice and Human Development, had sent to the Senate a letter with fact sheet in support of the Hatch Amendment. See:
www.nchla.org/datasource/idocuments/012809SenSCHIPLtr.pdf.
Law: On February 4, President Obama signed the SCHIP bill into law (Public Law 111-003).
The law leaves the unborn child regulation in place but explicitly stated that nothing should be inferred “regarding the legality or illegality” of the regulation (Sec. 111). As the fact sheet above states, “This leaves the unborn child option in an uncertain legal situation, subject to rescission by any President or HHS Secretary.” The prospect is raised that states may in the future have only one way to provide prenatal care, by providing coverage for the pregnant woman, with adverse consequences for the health care of children.
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