The Michigan Legislature recently passed the “Abortion Insurance Opt-Out Act” into law. Under the new law, women and employers must buy an optional insurance rider for abortion coverage. Abortions will only be covered without a rider if the mother’s life is in medical danger. The law also specifically allows for the treatment of miscarriages and ectopic pregnancies.

Detractors referred to the bill as requiring “rape insurance.” Michigan Senate Minority Leader Gretchen Whitmer (D – East Lansing) said, “This tells women that were raped and became pregnant that they should have thought ahead and planned for it.”

If there were such a thing as rape insurance, I surely would buy it. What woman (or likely future prison inmate) wouldn’t? No, this is abortion insurance, not rape insurance.

What the opponents of the new Michigan law seem to conveniently overlook when choosing their inflammatory and misleading rhetoric: (1) Abortion does not fully, meaningfully address the harms of rape. (2) Rape does not necessarily, or even usually, involve abortion. (3) Foreseeing an individual need for abortion insurance does not require extraordinary foresight. But let’s look a little more closely at what’s going on in Michigan . . . .

Calling this rider “rape insurance” implies that it covers the medical harms caused by sexual assault and that, without this special coverage, those harms would not be covered by health insurance. In truth, a sexual assault victim might require all sorts of care, from emergency treatment to psychiatric counseling to treatment for sexually transmitted diseases. Under the new law, a Michigan woman would not need an additional rider in order to access coverage for these types of care. The only possible procedure that she would need rider coverage for that she might want after a sexual assault is abortion. It minimizes the physical and psychological brutality of sexual assault to speak as though unwanted pregnancy is the only — or even the primary — harm done to a rape victim.

Note too, of course, that most rapes do not result in pregnancy . . . Todd Akin’s notoriously asinine fumblings aside. The most widely cited study, published in 1996 in the American Journal of Obstetrics and Gynecology, estimated a national rape-related pregnancy rate of about 5.0% per rape among female victims between the ages of 12 and 45. The study found that 32.2% opted to keep their children, 50% underwent abortions, 5.9% placed their children for adoption, and 11.8% miscarried their pregnancies. So, abortion is hardly the most common type of medical treatment sexual assault victims need.

By analogy, imagine Michigan required a separate insurance rider for reconstructive cosmetic surgery. Further imagine that some of the many people who might want reconstructive surgery were victims of assaults that occurred during muggings. If only 5% of people who got violently mugged would even need to consider getting their battered faces reconstructed and only half of that 5% would actually opt for it, would we accept calling this cosmetic surgery rider “mugging insurance”? Wouldn’t that be misleading? Wouldn’t we question the motives of whoever tried to seriously refer to the rider that way?

Let’s set aside the atrocious rhetoric of the law’s opponents, though. Let’s also consider the substance the law entails.

Michigan’s new law is far from the first limitation on how abortion coverage can be funded. The Hyde Amendment has prevented federal tax dollars from going toward abortion since 1976. Thirty-two states and the District of Columbia don’t allow state-based Medicaid coverage to include abortion either. Before Michigan passed this recent law, 23 states already restricted abortion coverage in private plans in Obamacare insurance exchanges. Eight other states ban private coverage of abortions altogether. While the liberal strategy of calling this a “rape insurance” requirement is novel, the substance of the law itself is not.

Moreover, requiring separate insurance coverage for those who think they may at some point opt for a controversial elective procedure makes good sense. If a majority of a state’s citizens or their representatives don’t want to pay into insurance pools that will cover someone else’s controversial elective procedures, legislating to that effect makes sense too.

Insurance riders provide additional coverage that some may need and some may not. Note here that abortion access is still available: the Michigan law obviously does not ban women from getting abortions, or even insurance coverage for abortions. I don’t need abortion insurance because I don’t intend to have an abortion under any circumstances, except perhaps to save my own life. Other women think differently. Other women would consider aborting a pregnancy under certain circumstances. If those women want those abortions covered by health insurance, they would be well-advised to purchase a rider.

I also don’t need a homeowner’s insurance policy with a separate rider for personal property. If I owned expensive jewelry, I would. I don’t need a sewage backup rider. If I owned a house with a sump pump, I would. A long-term care or accelerated benefits rider in a life insurance policy? As a single, childless, chain-smoking woman with flickering visions of slowly dying alone, I might need that. I won’t pout if someone tells me I ought to think ahead, evaluate my own circumstances and values, and plan accordingly.

If you are pro-choice, buy an abortion rider or plan to pay out of pocket if you ever decide to terminate a pregnancy. If you are pro-life, don’t.

One needn’t be rabidly pro-life in order to understand allowing people who oppose a controversial elective procedure to opt out of paying into insurance pools that cover it for others. What is so wrong with telling women who believe abortion is permissible to plan for the contingency that they might one day want one? That’s foresight about a personal issue that a woman may one day choose to exercise. Asking women to consider that in advance is no different than asking people to consider whether they might one day want insurance coverage for any number of other contingencies that they might face that the rest of the population may not.

The Michigan Abortion Insurance Opt-Out Act, and other legislation like it, does not tell women who have been raped and get pregnant that they should have planned on getting raped. It tells women who believe that they would ever consider aborting a pregnancy that they should plan ahead when managing their health care coverage.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com


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