Abortion Rule Gives Doctors Wide Leeway

The Clinton Administration has issued a directive giving doctors discretion to certify that poor women are eligible for Medicaid-funded abortions because they have been the victims of rape or incest--opening what abortion opponents contend is a loophole and an invitation to fraud.

The directive, issued this week in a letter to state Medicaid directors, is the Administration’s interpretation of a decision by Congress in October to loosen the 1976 law banning federal funding of abortion.

Since 1981, federal funding has been allowed only when the pregnant woman’s life is at stake. Congress acted last fall to expand that rule to include cases of rape and incest.

The new Administration directive allows states to impose their own “reasonable reporting or documentation” requirements to assure that rape or incest actually occurred, but only if the requirements do not “deny or impede coverage.”

To assure that these safeguards against fraud do not prevent rape or incest victims from receiving abortions, the directive said, any reporting requirement “must be waived and the procedure considered to be reimbursable if the treating physician certifies that in his or her professional opinion, the patient was unable, for physical or psychological reasons, to comply with the requirement.”

Abortion foes said the directive confirmed their worst fears.

“It’s basically telling the states they cannot have any enforceable type of review mechanism,” said Douglas Johnson of the National Right to Life Committee, the nation’s largest anti-abortion group.

Johnson warned that some doctors would tell patients: “If this was rape, you can have it paid for by the federal government. You want me to put that down?”

The issue is largely moot in California, which is one of 13 states that already fund Medicaid abortion without restrictions.

Seven other states use their own funds to pay for abortion in rape and incest cases, but most also require proof in the form of a police report within a specified time period. In Iowa, for instance, rape must be reported to law enforcement officials within 45 days, and incest within 150 days, for the resulting abortions to qualify for state funding.

Administration officials said the federal waiver of reporting requirements is necessary because many victims of incest or rape are afraid to go to police. The two crimes are considered by many law enforcement officials to be among the most underreported.

The latitude would generally be used only in an emergency situation, said Faye Baggiano, a spokeswoman for the federal Health Care Financing Administration, which issued the directive.

She dismissed a suggestion that some doctors might also use it to fraudulently receive federal compensation for abortions that did not result from rape or incest.

“Most physicians are very responsible when it comes to medical procedures like this,” she said.

The Administration’s directive did not go as far as hoped by some abortion-rights advocates, who were already disappointed by Congress’ refusal to lift the federal funding ban altogether.

Marcy Wilder, legal director for the National Abortion Rights Action League, said any reporting requirements could prove burdensome to rape or incest victims seeking abortions, despite the provision allowing doctors to waive those requirements.

Nonetheless, she said, “it is a very positive step that the Clinton Administration at least recognized that states will try to use reporting requirements” to deny abortions to rape and incest victims.

One senior congressional aide who has been actively involved with abortion-rights forces on the issue said the language in the directive is “as reasonable as they could have done it.”

Yet Johnson contended that history proves that sympathetic doctors will bend the law so that their poor patients can receive abortions.

The exemption for cases where the woman’s life was at stake had been used by doctors in some states to claim compensation for hundreds of abortions, until the George Bush Administration cracked down in the mid-1980s and demanded refunds, he said.

The ban on federal funding is known as the Hyde Amendment, after its author, Rep. Henry J. Hyde (R-Ill.). In 1990, the most recent year for which figures are available, Medicaid paid for 69 abortions in cases where the life of the pregnant woman was deemed to have been threatened. Before the Hyde Amendment was enacted 17 years ago, the federal government paid for about 300,000 abortions a year through the Medicaid program.

It was over the issue of reporting requirements that Bush vetoed a 1989 measure that would have expanded federal abortion funding to rape and incest victims. The Bush Administration suggested that some women would fabricate claims of rape and incest to have their abortions paid for by the government.