Comments on Proposed HHS Regulations on Eligibility for Prenatal Care for Unborn Children

U.S. Department of Health and Human Services
Room 443-G
Hubert H. Humphrey Building
200 Independence Avenue, S.W.
Washington, DC 20201

Dear Sir or Madam:

On behalf of the United States Conference of Catholic Bishops, we write in support of the Department of Health and Human Services' Proposed Rule on Eligibility for Prenatal Care for Unborn Children under the State Children's Health Insurance Program (hereinafter "Proposed Rule"), published at 67 Fed. Reg. 9936 (March 5, 2002).

Our support for the Proposed Rule is based on the importance of ensuring adequate health care for children, both before and after birth, and their mothers. The Proposed Rule serves this important goal, reflects the medical reality that the life of a child begins before birth at conception, and is thoroughly consistent with precedent according legal significance to, and protecting, the life of the unborn child. We also urge HHS to further clarify in the Final Rule that the unborn children of immigrant women would be eligible for coverage under SCHIP.
I. The Proposed Rule Recognizes the Importance of Prenatal Care

The State Children's Health Insurance Program (SCHIP) was created in 1997 to expand access to health care for low income children under 19 years of age. Ensuring a child's health and well-being is an undertaking that begins before birth – the health of a fetus in utero directly impacts that same child's health once he or she is born.

Recognizing that fact, over the past decade states and the federal government have sought ways to extend health coverage for prenatal services for low-income pregnant women and their unborn children, through both the Medicaid and SCHIP programs.1/ Several bills to amend SCHIP to include pregnant women have been introduced in Congress and are awaiting action. To accomplish the same end in the absence of legislative change, the Administration has proposed using its rulemaking authority to clarify that the regulatory definition of a child eligible for SCHIP coverage includes children "under the age of 19 including the period from conception to birth," thereby giving States the option to provide pre-natal health care coverage under SCHIP to unborn children and their mothers.

Adequate prenatal care, especially early prenatal care (in the first trimester of pregnancy), is essential to maintain the health of the developing baby and the mother. Prenatal health care allows detection of preexisting medical conditions in pregnant women which, left untreated, could be exacerbated by the pregnancy and harm the woman or pose a threat to the health of her unborn child. Health counseling can provide pregnant women with the information they need to recognize and correct behaviors that can threaten their health and the health of their babies. As the Department of Health and Human Services noted in its report Trends in the Well-being of America's Children & Youth 2000, "[i]ncreasing the percentage of women who receive prenatal care, and who do so early in their pregnancies, can improve birth outcomes and lower health care costs by reducing the likelihood of complications during pregnancy and childbirth."

While the number of pregnant women receiving prenatal care has been increasing, there are still too many women who receive no or less than adequate care when pregnant. Almost 17% of all women with live births received no prenatal care in the first trimester of their pregnancy in 1999, and over a quarter of pregnant Hispanic and African-American women had no early prenatal care. In 1998, more than 25% of pregnant mothers received less than adequate prenatal care.2/ Yet women who receive early prenatal care are more likely to give birth to healthy babies – and much less likely to deliver babies with low birth weights.

Lack of health insurance is a barrier to early and adequate prenatal care. According to the March of Dimes, an average of over 19% of women of childbearing age (15-44 years old) did not have health insurance between 1997 and 1999. During that same time period, 14.5% of women aged 15-44 were below the federal poverty level. As these data suggest, expanding federal health programs to give more low-income pregnant women access to prenatal care is an important step in making sure their children get a healthy start in life from the very beginning.

The U.S. Conference of Catholic Bishops believes that every human being has the right to quality health services, regardless of age, income, illness or condition of life, and has long supported access to prenatal care for pregnant women and their babies. As the Conference wrote in its 1991 document, Putting Children and Families First: "Beginning with our children and their mothers, we must extend access to quality health care to all our people. Quality and accessible prenatal care is essential for healthy children. There can be no excuse for the failure to ensure adequate health care and nutrition for pregnant women. Nothing would make a greater contribution to reducing infant mortality than progress in this area."

Because prenatal care is essential for the health of both the child and the mother, we support changes in the law, including regulatory changes such as the one currently proposed, to increase access to prenatal care for low-income women and their unborn children.
II. The Proposed Rule's Recognition of the Unborn Child is Amply Supported by the Scientific and Medical Literature

The Proposed Rule's definition of "child" is consistent with a vast body of scientific literature, and with modern medical practice, which recognize that the life of a child begins at conception and continues until adulthood.

Embryology textbooks overwhelmingly recognize that human life begins at conception:

Human development begins after the union of male and female gametes or germ cells during a process known as fertilization (conception).... This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of a human being.

Moore, Keith L. Essentials of Human Embryology. Toronto: B.C. Decker Inc, 1988, p. 2.

The development of a human begins with fertilization, a process by which the spermatozoon from the male and the oocyte from the female unite to give rise to a new organism, the zygote.

Sadler, T.W. Langman's Medical Embryology. 7th edition. Baltimore: Williams & Wilkins 1995, p. 3.

Almost all higher animals start their lives from a single cell, the fertilized ovum (zygote)... The time of fertilization represents the starting point in the life history, or ontogeny, of the individual.

Carlson, Bruce M. Patten's Foundations of Embryology. 6th edition. New York: McGraw-Hill, 1996, p. 3.

The biological fact that human life begins at conception is also acknowledged by current medical practice. In particular the American Academy of Pediatrics, which is dedicated to providing health care to children, recognizes the unborn child as a patient of the pediatrician. The Academy states:

The purview of pediatrics includes the physical and psychosocial growth, development, and health of the individual. This commitment begins prior to birth when conception is apparent and continues throughout infancy, childhood, adolescence and early adulthood, when the growth and developmental processes are generally completed.

American Academy of Pediatrics, "Policy Statement: Age Limits of Pediatrics" (RE8116), 81 Pediatrics 736 (May 1988).

Indeed, the unborn child's status as a patient in need of health care has long enjoyed international recognition. The United Nations Declaration on the Rights of the Child, and the 1990 Convention implementing its principles which has been ratified by 191 nations, declare that "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth." See Preamble to the U.N. Convention on the Rights of the Child, www.unicef.org/crc/crc.htm.

The care of the child in his or her mother's womb also constitutes a distinct medical specialty, that of maternal-fetal medicine. Moreover, as technology has increased and understanding of unborn life has expanded, subspecialties have developed within this field. For example, at the University of Pennsylvania School of Medicine there is a Fetal Echocardiography Project that is dedicated to assisting physicians in the diagnosis of heart problems in the unborn child. The Society for Fetal Urology is dedicated "to improv[ing] the care of patients with fetal or perinatal urological problems." Society for Fetal Urology, Bylaws, art. 2, ¶ 1. Across the country, public health and community organizations are dedicated to protecting unborn children from exposure to alcohol. See National Organization on Fetal Alcohol Syndrome, http://www.nofas.org/fasdirect/index.htm (providing database of national and state programs and services).

An overwhelming scientific and medical consensus recognizes that the life of a child begins before birth at conception, and that the unborn child is a distinct patient with his or her own health needs. It is therefore entirely appropriate for the Administration to formulate policies that serve the health and well-being of the unborn child.

Moreover, the Administration does so with precedent. In 1980, the Carter Administration's report on The Status of Children, Youth and Families reviewed conditions throughout the human life cycle that may warrant the federal government's concern and support. Noting that "life is a constantly evolving process that begins with conception and continues until death," the report noted:

With the passage of time, the human organism grows from a single cell to a fully developed adult... In relation to the total life span of the individual, the early developmental years are short and serve as the foundation for the remainder of one's life span. The needs of a child in the support of this growth and development begin before birth and continue throughout the growth years until maturity is reached.... The stage of the family's life cycle in which the developing fetus grows influences the emotional, physical, and economic resources that will be available for supporting and protecting the growing child.

Office of Human Development Services, U.S. Department of Health and Human Services, The Status of Children, Youth and Families 1979, DHHS Publication No, (OHDS) 80-30274 (August 1980), pp. 29, 30 (citation omitted).

This report, issued over two decades ago, acknowledged the reality of human life from conception onward, recognized the special needs and vulnerability of the unborn child, and called for care and concern directed specifically to the healthy development of this child in the womb.

The Proposed Rule serves both women and children, doing so in a way that is scientifically and medically accurate and that reflects the special needs of the unborn child long acknowledged by the federal government.
III. The Proposed Rule's Treatment of the Unborn Child is Consistent with Legal Precedent

In treating the unborn child as a human subject, the Proposed Rule has ample legal precedent. Outside the abortion context, unborn children are often recognized as persons who warrant the law's protection. Most states, for example, allow recovery in one form or another for prenatal injuries. Roe v. Wade, 410 U.S. 113, 161-62 (1973); see also Paul Benjamin Linton, "Planned Parenthood v. Casey: The Flight From Reason in the Supreme Court, 13 St. Louis U. Pub. L. Rev. 15, 46-64 (1993). Roughly half the states criminalize fetal homicide. Sandra L. Smith, "Fetal Homicide: Woman or Fetus as Victim?: A Survey of Current State Approaches and Recommendations for Future State Application, 41 Wm. & Mary L. Rev. 1845, 1851 (2000). Unborn children have long been recognized as persons for purposes of inheritance, Roe, 410 U.S., at 162, and a child unborn at the time of his or her father's wrongful death has been held to be among the children for whose benefit a wrongful death action may be brought. 22A Am.Jur.2d Death § 99 (1988). Federal law similarly recognizes the unborn child as a human subject deserving protection from harmful research as soon as pregnancy is confirmed. 42 U.S.C. § 289g(b); 45 C.F.R. Part 46, §§ 46.203 et seq. It is therefore no innovation to treat an unborn child as a human individual for the purpose of providing quality prenatal care to the child and his or her mother.

IV. The Final Rule Should Clarify that Coverage Extends to the Unborn Children of Legal Immigrant and Undocumented Alien Women

Pregnant women and children who are legal immigrants and arrived in the United States after August 22, 1996, are ineligible for Medicaid and SCHIP benefits for five years. Many states have not exercised the option to cover legal immigrants after five years. Undocumented aliens are completely ineligible. Thus, even the poorest pregnant noncitizen women are often unable to secure the prenatal care necessary to ensure that they have healthy babies, babies who will become citizens immediately upon their birth in the United States. Effective health care for these children, no less than others, must begin with access to prenatal care. We urge HHS to make clear in the final rule that unborn children will be eligible for SCHIP benefits under the rule, regardless of the immigration status of their mothers, in order to provide effective coverage for the maximum number of unborn children. The clarification should also indicate that undocumented alien women seeking medical care for their unborn children would not risk being reported to immigration authorities.
Conclusion

The Proposed Rule serves an important goal, that of expanding access to quality prenatal care for children at their earliest and most vulnerable stages of development and to their mothers. It serves this goal by acknowledging that the child's need for good nutrition and health care begins when the child first comes into existence, at conception. This is simply to recognize a biological fact that is already widely acknowledged in science, law and medicine. There is no conflict here between the interests of mother and child, but a complete convergence of interests: the Regulation will equally serve unborn children and their mothers, in the most immediate and straightforward way possible. Unfortunately, some organizations with a political agenda regarding other issues affecting prenatal life have chosen to view the Proposed Rule through the lens of those issues and therefore greeted it with suspicion. It is far too late in the history of law and medicine to turn back the clock and urge our government to deny the reality of the patient in the womb -- especially at the cost of sacrificing the health and well-being of both women and their unborn children.

Thank you for the opportunity to commend on the Proposed Rule.

Sincerely,

Mark E. Chopko
General Counsel

Michael F. Moses
Associate General Counsel
Endnotes

1. Maternal and Child Health (MCH) 2000 Update: States Have Expanded Eligibility and Increased Access to Health Care for Pregnant Women and Children, National Governor's Association Center for Best Practices website, nga.org.
   
   
2. See Trends in the Well-being of America's Children & Youth 2000, U.S. Department of Health and Human Services; Perinatal Profiles: Statistics for Monitoring State Maternal and Infant Health, 2001 Edition, March of Dimes.

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