Washington ? In a move that provoked partisans in the abortion debate and could set the stage for a legal challenge, the Bush administration said Thursday that states may classify a fetus as an “unborn child” eligible for government-paid health care.

The regulation change by the federal Department of Health and Human Services would expand coverage under the State Children’s Health Insurance Program to include low-income pregnant women. The program is now aimed almost exclusively at children and served about 3.3 million children in 2000.

“Prenatal care for women and their babies is a crucial part of the medical care every person should have through the course of their life cycle,” said Health and Human Services Secretary Tommy Thompson. “We should do everything we can to make this care available for all pregnant women.”

Political response

People familiar with the program said it is too early to determine the effect of the change. But there was no doubt about the political repercussions of Thursday’s announcement.

Critics of the administration’s decision characterized the move as a back-door attempt by the Bush administration and conservative Republicans to establish fetuses as people with legal standing, possibly paving the way toward criminalizing abortion. In its landmark 1973 Roe v. Wade decision, the U.S. Supreme Court legalized abortion nationwide and ruled that fetuses were not “persons.”

President Bush is an abortion opponent and has been critical of the court’s ruling. And as the 29th anniversary of the Roe v. Wade decision approached last week, Bush appeared to reach out to abortion opponents.

“They certainly could have extended benefits for prenatal care without having to classify a fetus as anything they could have just said a pregnant woman is entitled to prenatal care,” said Angela Holder, a lawyer and professor of medical ethics at the Duke University Medical Center in North Carolina. “So I have to assume this is a precursor of some more anti-choice rhetoric, if not action.”

The conflict centers on the definition of children. Under current law, the health insurance program defines a child as an individual under the age of 19. The administration alters the definition to say that states may provide insurance coverage to children from conception to age 19.

Planned Parenthood Federation of America Inc. slammed the administration’s move. “Two nights ago in his State of the Union address, President Bush declared respect for women to be non-negotiable,” said Gloria Feldt, president of the group.

“How hypocritical, then, is his administration’s announcement today that effectively relegates women to second-class status. By proposing to ‘clarify’ the definition of ‘child’ to include the period from conception to age 19 years, the administration is elevating the status of the fetus above that of a woman,” Feldt said.

Prenatal care

The health care insurance program is administered by the states with federal financial assistance. The program is intended to provide insurance coverage for families whose income disqualifies them for Medicaid but do not have the means to obtain private health care insurance.

Coverage can vary from state to state because legislatures determine eligibility. The law restricts coverage to children, although in some states the federal government has granted waivers to allow for some parental coverage.

Joy Johnson Wilson, director of the health committee for the National Conference of State Legislatures, said states have been lobbying Congress for the authority to provide prenatal care under CHIP.

Bills pending before the House and Senate would expand coverage but would not have changed the definition of children. Wilson said the administration must believe it has found a regulatory route to provide prenatal care without congressional approval.

“Perhaps one might challenge whether they can do this by regulation,” Wilson said, adding that she was not sure about the legality of changing the definition of a child to include fetuses.

“What they’re doing is raising that issue,” Wilson said.

Supporters

The National Right to Life Committee endorsed the administration’s move. “We applaud this Bush administration proposal to recognize the existence of an unborn child in order to allow the baby, and the mother as well, to receive adequate prenatal care a concept to which only the most extreme pro-abortion ideologues will object,” said Douglas Johnson, the group’s legislative director.

Rep. Henry Hyde, R-Ill., one of Congress’ best-known abortion opponents, welcomed Thursday’s announcement. “I applaud the Bush administration for its commitment to providing affordable health-care to pregnant women,” Hyde said. “Prenatal services are vital to ensuring the health and vitality of both the mother and her unborn child during and following the pregnancy.”

Another agenda?

Some critics said the regulation change is a smoke screen for a plan to advance an anti-abortion agenda.

Critics said the administration could have expanded the Medicaid program so that more low-income women could be covered. Health and Human Services has estimated that 10.9 million women of childbearing age 18 to 44 don’t have health insurance.

“We are totally in favor of increasing prenatal care access and eligibility for pregnant women,” said Bebe Anderson, a staff attorney for the nonprofit Center for Reproductive Law and Policy, a group that supports abortion rights. “We consider prenatal care to be extremely important. We think the government should be much more financially supportive of prenatal care for low-income women. The government should be doing that directly.

“This is not directly at all. This is taking a program where the eligibility is focused on the child, then changing a definition of child to then cover fetuses, thus elevating the status of a fetus in a way that is invalidly done under law and hasn’t been validly done under the federal law. They’re trying to do it by regulation.”

Sen. Christopher Dodd, D-Conn., a co-sponsor of the Senate bill to expand coverage under CHIP, said the administration proposal “has less to do with a good-faith effort to address the problem and more to do with injecting a divisive political agenda into this arena to ultimately limit women’s right to choose.”

Thompson said the proposed regulation could be completed and placed on the books as soon as this spring after it goes through a public comment process and further refinement by his department.