WASHINGTON -- The Bush administration declared Thursday that a developing fetus should be eligible for government-funded health insurance for low-income children, marking the first time that any federal program has attempted to define childhood as beginning before birth.
Administration officials said the proposal was intended purely to extend health care to more women during pregnacy, but women's groups and abortion rights advocates denounced the move as a ploy to create legal grounds for outlawing abortion.
The proposed rule change was one of two administration announcements Thursday that appeared to be aimed at satisfying social conservatives as President Bush prepared to release next year's budget on Monday. Officials said the president also would add $33 million to federal funding of programs that encourage teenagers to abstain from sex.
Health and Human Services Secretary Tommy Thompson said the plan to broaden eligibility for health insurance "is going to help poor mothers be able to take care of their unborn children and get the medical care they absolutely, vitally need." Any other interpretation of its goal, he said, "is just stretching."
But the proposal that "children from conception" should be eligible under the State Children's Health Insurance Program (S-CHIP) enraged women's groups and abortion rights advocates.
Until now, the $40 billion, 10-year program, a state-federal collaboration that began in 1997, has covered children from birth to age 19. States previously have been able to extend coverage to pregnant women by obtaining a federal waiver, without tackling the issue of whether a fetus is legally a child. Two states, New Jersey and Rhode Island, did so early last year.
The administration proposal would enable states to extend coverage without federal approval. States still could sidestep the abortion debate by requesting waivers, officials said, although that route might involve more paperwork and take slightly longer than applying the new definition of childhood.
Feminist and abortion rights leaders, while favoring improved access to prenatal care, said the administration's proposed definition, by giving distinct legal rights to fetuses, could establish a precedent for challenging Roe v. Wade, the landmark Supreme Court ruling establishing abortion rights.
"It is a legal pathway to making all abortions under all circumstances a crime," said Kate Michelman, president of the National Abortion and Reproductive Rights Action League. "If the administration were sincere about improving healthy childbearing ... it could provide state funding for pregnant women."
Opponents of abortion played down the impact of HHS's decision on the abortion debate, saying the expansion of children's insurance was simply sound policy. "It is good for the child, good for the mother and good for the country," said Michael Place, president of the Catholic Health Association of the United States.
Douglas Johnson, legislative director of the National Right to Life Committee, portrayed it as a political rather than legal victory for his camp.
"The Supreme Court has ruled there is a fundamental right of privacy which trumps any state interest in protecting the health of the fetus. This decision today has no bearing on that issue. Legally, it's apples and oranges," Johnson said. "But this can be cited as another reason why people should reassess the state of abortion law. It's obviously the kind of development we hope to see more of."
Peter Rubin, a professor of constitutional law at Georgetown University who supports a woman's right to abortion, agreed that the proposed regulation would not affect abortion rights in a direct and immediate way.
"This does not overrule Roe v. Wade," he said. "But it is significant, because it would for the first time put into federal law the concept that from the moment of conception, a fetus is a child. To suggest in federal law that ... a one-cell zygote is a full human being is at variance with the American legal tradition and does ultimately present a threat to women's reproductive rights -- and not just abortion, but also contraception."
The proposed regulation, which Thompson said would be published in the Federal Register in the coming weeks, will be open to public comment and possible changes before it becomes final. It does not require congressional approval. But some members of Congress said Thursday they will propose legislation to make the proposal mute by extending S-CHIP to prenatal care.
Critics of the policy said the new rule was disingenuous because S-CHIP, intended primarily for children, already allows states to get permission to use its subsidies to care for pregnant women.
"This is not about providing prenatal care or expanding coverage for pregnant women. This is about the administration using that language to accomplish its real goal, which is granting legal personhood to a fetus," said Laurie Rubiner, vice president of the National Partnership for Women and Families.
Johnson, of the National Right to Life Committee, said HHS's position is consistent with laws passed in many states that say fetuses have a variety of legal rights, including inheritance and being defined as victims of crimes. He said the HHS definition also could serve as a precedent for allowing "unborn children" to be eligible for other kinds of public health benefits.
But Gloria Feldt, president of the Planned Parenthood Federation of America, accused the administration of undermining the pledge Bush made Tuesday night in his State of the Union address that respect for women was among a list of "non-negotiable demands for human dignity."
The administration wants to "change the definition of who would be the recipient of prenatal care ... It makes the woman a vessel, a nonentity," Feldt said.
"It displays an extreme ideological drive of this administration to undermine Roe v. Wade and establish a fetus from the moment of conception as equivalent to, or even more important than, a woman," said Marcia Greenberger, co-president of the National Women's Law Center.
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