As States Seek to Limit Abortions, Montana Wants to Redefine What Is Medically Necessary
Medical professionals have said the term “elective abortions” can misrepresent the complex reasons someone may seek an abortion and constrain health providers from making their best clinical judgment. Laurie Sobel, associate director of Women’s Health Policy at KFF, said that appears to be the aim of the Montana proposal’s focus on defining medically necessary abortions.
“It looks like Montana’s trying to curtail abortion access under Medicaid and take the conversation of ‘medically necessary’ away from a physician and a patient,” Sobel said.
Democratic lawmakers and many health providers have said existing state rules ensure providers consider and document why an abortion is needed to protect a patient.
Democratic state Rep. Ed Stafman, who recently chaired the Children, Families, Health, and Human Services Interim Committee, said the proposed changes are unnecessary because the state already complies with federal Medicaid rules on abortion.
“It’s clear that this is part of the anti-abortion agenda,” Stafman said.
States are barred from using federal funds to pay for abortions except in cases of rape or incest, or when a woman’s life is at risk. However, states have the option of using their own money to allow reimbursements under the joint state-federal Medicaid program in other circumstances.
Montana is one of 16 states that allow the use of state Medicaid funds for abortions deemed medically necessary. A study published in 2017 in the journal Obstetrics & Gynecology found that states with Medicaid coverage of medically necessary abortions had a reduced risk of severe maternal morbidity for that population, 16% on average, compared with states without that coverage.
Montana’s proposed changes are more restrictive than the rules in many of the other states that allow medically necessary Medicaid abortions. At least nine states that use state funds to pay for Medicaid abortions don’t require health providers to report the circumstances for an abortion, according to a 2019 U.S. Government Accountability Office report on state compliance with abortion coverage rules. For example, California’s Medi-Cal program does not require any medical justification for abortions, and requires preauthorization only when the patient needs to be hospitalized.
Most of the states that permit medically necessary Medicaid abortions, including Montana, are under court orders to fund the procedure as they would other general health services for low-income people.
Montana’s coverage is tethered to a 1995 court case that determined the state’s Medicaid program was established to provide “necessary medical services” and the state can’t exclude specific services. The state’s existing eligibility rules governing when a Medicaid-funded service is medically necessary include when a pregnancy would cause suffering, pain, or a physical deformity; result in illness or infirmity; or threaten to cause or aggravate a disability.
Under the health department’s new proposal, abortions would be determined to be medically necessary only when a physician — not another type of provider — certifies a patient suffers from an illness, condition, or injury that threatens their life or has a physical or psychological condition that would be “significantly aggravated” by pregnancy.
Elsewhere, courts have rejected some states’ attempts to create a definition for medically necessary abortions apart from existing Medicaid standards as constitutional violations of equal protection. The Alaska Supreme Court struck down a 2013 state law changing 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 section. And New Mexico’s high court said in 1999 that a state rule limiting Medicaid-funded abortions applied different standards of medical necessity to men and women.
Montana opponents of the proposed changes have threatened to sue if the regulations are adopted.
The state’s Medicaid program covers more than 153,900 women. From 2011 through 2021, the program paid for 5,614 abortion procedures, which typically represents nearly a third of all abortions in the state, according to state data.