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White House Issues Regulation That Defines Fetuses as Children


WASHINGTON — The Bush administration Friday issued a final regulation defining human fetuses and embryos as children, saying it would allow states to offer prenatal health care to greater numbers of poor women.

But abortion rights advocates, noting that states already can cover pregnant women under Medicaid and, with federal permission, the State Children's Health Insurance Program, called the regulation a thinly disguised attempt by the administration to weaken abortion rights.

Administration officials rejected such criticism, saying the regulation was simply intended to make the benefits of prenatal care available to more unborn children.

"This is a common-sense, compassionate measure to make sure that all children born in this country come into the world as healthy as possible," Health and Human Services Secretary Tommy G. Thompson said.

"It's another way to secure a safety net of care for our children and their mothers."

Officials also emphasized Friday that the regulation extends coverage eligibility to the unborn children of pregnant immigrants, regardless of whether they are in the country legally.

Calling the provision a "logical extension" of the federal law that confers citizenship on all children born in the United States, HHS spokesman Bill Pierce said the new classification extends those rights "for nine more months."

In California, undocumented immigrants--as well as low-income pregnant women--already are eligible for prenatal care through the Medi-Cal program, the state's version of Medicaid.

Neither states nor the federal government has any legal basis for classifying a fetus on the basis of the mother's immigration status, said Josh Bernstein, senior policy analyst for the National Immigration Law Center.

"A fetus is not a citizen," he said. "A fetus has no immigration status."

The regulation, which will take effect 30 days after its publication Wednesday in the Federal Register, comes more than a year after officials first floated the idea and eight months after it officially proposed the change.

Douglas Johnson, legislative director for the National Right to Life Committee, said the new rule "means that many unborn children, and their mothers as well, are now eligible to receive proper prenatal care" as part of SCHIP, the State Children's Health Insurance Program.

Abortion rights advocates reiterated their concerns that a federal court might someday rule that the legal rights of a fetus trump those of a pregnant woman.

Judith Lichtman, president of the National Partnership for Women & Families, called the regulation "a sham policy [that] at its heart is both anti-choice and anti-immigrant."

The regulation "fails to provide comprehensive coverage for pregnant women, instead only providing coverage for the fetus," she said.

"Pregnant women may not be covered for ailments unrelated to the fetuses' needs, and they would be left without critical coverage after the child is born."

Kate Michelman, president of the National Abortion and Reproductive Rights Action League, said her organization had supported increased access to prenatal care for "a long, long, long time." But that is not the primary goal of the administration's new policy, she said.

"The intent is quite clear," she said. The administration is using the new classification as a "vehicle to give the fetus legal status separate and apart from the woman," with the goal of overturning Roe vs. Wade, the 1973 Supreme Court decision that guaranteed a woman's right to abortion.

The release of the new regulation also comes less than six weeks before November's congressional midterm elections, a fact noted by activists on both sides of the issue. Indeed, Friday's action was the latest of several abortion-related votes and statements made by Republicans in recent days.

Rep. Henry A. Waxman (D-Los Angeles), an author of the original SCHIP legislation, noted that Medicaid and SCHIP already can cover health care for pregnant women and accused the administration of "grandstanding with abortion politics."

The regulation will allow states to win federal approval "to cover unborn children" under SCHIP in a few weeks or months, the HHS' Pierce said. The current waiver procedure can take three to six months.

But Johnson, of the Right to Life Committee, worried that some state officials would not offer the expanded coverage.

"Will pro-abortion politicians in some states cave in to pressure from pro-abortion groups who insist there is no such thing as an unborn child," he asked, "and so deny this aid to mothers and their babies?"

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