¹ Audre Lorde, The Master’s Tools Will Never Dismantle the Master’s House, in Sister Outsider 100, 100–101 (Penguin Books ed., 3rd ed., 2020) (1984).

² Social Security Amendments of 1965, Pub. L. No. 89–97, tit. I, § 121(a), 79 Stat. 286, 344.

³ See July 2022 Medicaid & CHIP Enrollment Data Highlights, Medicaid.gov, https://www.medicaid.gov/medicaid/program-information/medicaid-and-chip-enrollment-data/report-highlights/index.html [https://perma.cc/4XHX-J9CX] (last visited Nov. 23, 2022).

⁴ Medicaid’s Role in Financing Maternity Care 1, 5 (Medicaid and CHIP Payment and Access Commission ed., Feb. 2021), https://www.macpac.gov/wp-content/uploads/2020/01/Medicaid%E2%80%99s-Role-in-Financing-Maternity-Care.pdf; Usha Ranji et al., Financing Family Planning Services for Low-income Women: The Role of Public Programs, Kaiser Fam. Found. (Oct. 25, 2019), https://www.kff.org/womens-health-policy/issue-brief/financing-family-planning-services-for-low-income-women-the-role-of-public-programs/ [https://perma.cc/4PPY-AX2L].

⁵ See id.; What is Reproductive Justice?, SisterSong Women of Color Reproductive Justice Collective, https://www.sistersong.net/reproductive-justice [https://perma.cc/8TCL-X7GU] (last visited Nov. 1, 2021).

⁶ Of note, when Congress included Medicaid as Title XIX in the Social Security Amendments of 1965, it intentionally chose an optional program with narrow eligibility criteria instead of forging the universal health care program that the labor and civil rights movements long called for. It selected this basic structure in part to meet white Jim Crow state lawmakers’ demands for control over who could access health care in their states. In doing so, it intentionally empowered states to perpetuate inequities in access to care. See Cindy Pearson, Protecting and Expanding Medicaid Means Confronting Racism Baked into the Program, Nat’l Women’s Health Network (Apr. 3, 2019), https://nwhn.org/protecting-and-expanding-medicaid-means-confronting-racism-baked-into-the-program/ (specifically discussing racism entrenched in the program); see also Sarah Somers & Jane Perkins, The Ongoing Paradox of the Medicaid Program, 16(1) J. Health & Life Sciences L. 99, 96–111 (2022); Hoag Levins, A Tangled and Tenacious Challenge: Structural Racism in Medicaid, Penn. Leonard Davis Inst. of Health Econ. (Apr. 26, 2022), https://ldi.upenn.edu/our-work/research-updates/a-tangled-and-tenacious-challenge-structural-racism-in-medicaid/; Theodore Marmor, The Politics of Medicare 52 (Routledge ed., 2d ed. 2017); discussion infra Part II.

⁷ Id.

⁸ See, e.g., Loretta J. Ross, Understanding Reproductive Justice 2 (2006), https://d3n8a8pro7vhmx.cloudfront.net/rrfp/pages/33/attachments/original/1456425809/Understanding_RJ_Sistersong.pdf?1456425809 [https://perma.cc/6AC2-9SQV]; Madeline T. Morcelle, Closing the Medicaid Coverage Gap: Preventing a Separate and Unequal Result 2–3 (Nat’l Health L. Program ed., 2021); Jamila Taylor, Structural Racism & Maternal Health Among Black Women, 48 J.L., Med & Ethics 506, 507–510 (2020).

⁹ See discussions on populations targeted or disparately impacted by coverage (e.g., immigrants, Black and Latinx people) and benefit (e.g., abortion) gaps infra Part II.

¹⁰ See Ross, supra note 8, at 2.

¹¹ Lindsay Wiley notes that current dominant health law models include the: (1) patient rights movement, in which “fairness [is] typically articulated [in individual terms] as access to care largely on the basis of medical need, high quality of care, and respect for patient autonomy and dignity[;]” (2) market power movement, which emphasizes “the establishment of proper market incentives with the dual objectives of conserving public funds and curbing inflation in health care costs; and (3) health consumerism movement, which reframes and melds the market power model with some elements of the patient rights movement to further the “freedom to participate in the marketplace [through] an ethics of consumer protection” that is “focused on ensuring that patients have access to information and are protected from coercion[,]” yet “focuses on individual decisionmaking [offering] few new opportunities to articulate collective, social goals.” Lindsay F. Wiley, From Patient Rights to Health Justice: Securing the Public’s Interest in Affordable, High-Quality Health Care, 37 Cardozo L. Rev. 833, 839–51 (2016) (quoting Rand E. Rosenblatt, The Four Ages of Health Law, 14 Health Matrix 155 (2004); James F. Blumstein & Frank A. Sloan, Redefining Government’s Role in Health Care: Is a Dose of Competition What the Doctor Should Order?, 34 Vand. L. Rev. 849, 852 (1981); William M. Sage, Relational Duties, Regulatory Duties, and the Widening Gap Between Individual Health Law and Collective Health Policy, 96 Geo. L.J. 497, 504 (2008); dominant reproductive law and policy models that predate reproductive justice include the: (1) reproductive health movement, which focuses on addressing barriers to reproductive health service delivery but often neglects the need for access to all services, and often focuses on strategies to improve services and education on the individual level without addressing the root causes of health inequities; and (2) reproductive rights movement, which focuses on the lack of adequate legal protections or enforcement that protect individuals’ rights (e.g., the right to privacy, choice, be free from discrimination, access services) to reproductive health services. See Asian Cmtys. for Reprod. Just. (now Forward Together), A New Vision for Advancing Our Movement for Reproductive Health, Reproductive Rights and Reproductive Justice 2 (2005); infra Part I (discussing how the reproductive rights movement, reproductive health movement, and Clintoncare proposal failed to adequately grapple with reproductive oppression).

¹² Lorde, supra note 1, at 100.

¹³ This Article offers examples of how Medicaid coverage law and policy both oppose and reinforce reproductive oppression, and how reforms can further reproductive justice. A full exposition of reproductive injustices in Medicaid law and policy, including across service delivery, payment, privacy, and other areas, are beyond the scope of this Article.

¹⁴ Loretta Ross & Rickie Solinger, Reproductive Justice: An Introduction 71 (2017); Guohua Pan & Curtis Bonk, The Emergence of Open-Source Software in North America, 8(3) Int’l R. Research in Open & Distributed Learning (explaining that open-source code is “created by a development community rather than a single vendor[.]” It is fully or partially freely available to the public for use, modification, and distribution. The result is a believed to be “fundamentally a more efficient as well as democratic way of developing software that enables participatory co-development and sparks innovation).

¹⁵ In this Article, I strive to use gender inclusive language to reflect the scope of people with various health needs and reproductive experiences. I employ “women” in limited instances to honor how advocates or campaigns self-identify, and when necessary to accurately reflect statutory terms or cisgender women-centered research. More inclusive statutory drafting and research is needed. See Asian Cmtys. for Reprod. Just., supra note 11, at 5.

¹⁶ Id.

¹⁷ Lindsay Wiley, Health Law as Social Justice, 24(1) Cornell J. L. & Pub. Pol’y 53, 47–105 (2014).

¹⁸ See, e.g., William J. Clinton, White House, https://www.whitehouse.gov/about-the-white-house/presidents/william-j-clinton/ (last visited Dec. 5, 2022); Ibram X. Kendi, The Pre-History of President Clinton’s Racist (and Antiracist) Liberalism, African American Intellectual Hist. Society: Black Perspectives (May 21, 2016), https://www.aaihs.org/the-pre-history-of-president-clintons-racist-and-antiracist-liberalism/ (last visited Dec. 5, 2022).

¹⁹ See, e.g., Abigail Trafford, Who’s on Hillary’s List?, Wash. Post (Mar. 30, 1993), https://www.washingtonpost.com/nation/2019/08/16/reproductive-justice-how-women-color-asserted-their-voice-abortion-rights-movement/.

²⁰ Demographics of Members of Congress, in Vital Statistics on Cong. 58–63 (Molly Reynolds, ed., Brookings Inst., ed., 2022).

²¹ See generally SisterSong Women of Color Reproductive Justice Collective, supra note 5 (discussing how “the women’s rights movement, led by and representing middle class and wealthy white women, could not defend the needs of women of color and other marginalized women and trans* people”).

²² Loretta Ross, What is Reproductive Justice?, in Reproductive Justice Briefing Book 4 (2007); see also Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. 2025, 2053, 2055 (2021) (“All too often, abortion rights were framed as issues of ‘choice,’ without regard to the way in which, depending on one’s circumstances, the notion of ‘choice’ could be severely constrained.”); Dorothy Roberts, Reproductive Justice, Not Just Rights, Dissent Mag., https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights [https://perma.cc/H9HC-EGV8] (last updated fall 2015).

²³ Reproductive Justice, In Our Own Voice National Black Women’s Reproductive Just. Agenda, https://blackrj.org/our-issues/reproductive-justice/ (last visited Nov. 25, 2022).

²⁴ Introduction, in Radical Reproductive Justice: Foundation, Theory, Practice, Critique loc. 792 (Loretta J. Ross et al. eds., 2017) (ebook) (hereinafter Radical Reproductive Justice); Ross, supra note 22, at 4.

²⁵ Ross & Solinger, supra note 14, at 63–64.

²⁶ Id. at 65.

²⁷ Vanessa Williams, Why Black Women Issued a Public Demand For ‘Reproductive Justice’ 25 Years Ago, Wash. Post (Aug. 16, 2019), https://www.washingtonpost.com/nation/2019/08/16/reproductive-justice-how-women-color-asserted-their-voice-abortion-rights-movement/ [https://perma.cc/8TJ3-6ZRP].

²⁸ Ross & Solinger, supra note 14, at 65.

²⁹ Radical Reproductive Justice, supra note 24, at loc. 792; Ross & Solinger, supra note 14, at 65–66.

³⁰ Ross & Solinger, supra note 14, at 71.

³¹ Daniel Lin, Matthew Sag, & Ronald Laurie, Source Code versus Object Code: Patent Implications for the Open Source Community, 18(2) Santa Clara High Tech. L. J. 235–257, 238 (Jan. 2002), 238.

³² Id. at 251; Eben Moglen, Anarchism Triumphant: Free Software and the Death of Copyright, First Monday (1999), https://firstmonday.org/ojs/index.php/fm/article/view/684/594 [https://perma.cc/2URT-JXPH].

³³ Id.

³⁴ Id.

³⁵ Id.; See e.g., Let’s Build From Here, GitHub, https://github.com/about [https://perma.cc/JT7Y-RLNK] (last visited Aug. 1, 2022) (explaining that GitHub is a software development platform where tens of millions of users upload often open source code and collaborate to build and scale software).

³⁶ See SisterSong Women of Color Reproductive Justice Collective, supra note 5.

³⁷ Reproductive Justice: Background, Nat’l Latina Inst. for Repro. Justice, https://www.latinainstitute.org/en/what-we-do/reproductive-justice-more [https://perma.cc/SU33-Q5PX] (last visited Nov. 28, 2021).

³⁸ See Ross & Solinger, supra note 14, at 70, 115, 122, 183; Roberts, supra note 22.

³⁹ Id.

⁴⁰ See, e.g., Joan C. Chrisler, A Global Approach to Reproductive Justice—Psychosocial and Legal Aspects and Implications, 20 Wm. & Mary J. Race, Gender, & Soc. Just. 20 (2013); Ross & Solinger, supra note 14, at 114; Nancy Krieger, Ecosocial Theory, Embodied Truths, and the People’s Health 3, 54 (2021).

⁴¹ Id. at 3; Ross & Solinger, supra note 14, at 225.

⁴² See id. at 44, 49, 227–29; Krieger, supra note 40, at 54.

⁴³ Dobbs v. Jackson, No. 19-1392, 597 U.S. __ (2022); see Krieger, supra note 40, at 11–13, 42, 225; Taylor, supra note 8, at 506–09; Elizabeth Nash, State Policy Trends 2021: The Worst Year for Abortion Rights in Almost Half a Century, Guttmacher Inst. (Jan. 5, 2022), https://www.guttmacher.org/article/2021/12/state-policy-trends-2021-worst-year-abortion-rights-almost-half-century; Oliver C. Haug, Halfway Through the Year, 2021 is Already the Worst Year Ever for Anti-Trans Legislation, Ms. Mag. (July 16, 2021).

⁴⁴ See, e.g., Kate Raphael, Racial Bias in Medicine, Harv. Glob. Health Inst. (Feb. 5, 2020), https://globalhealth.harvard.edu/racial-bias-in-medicine/ [https://perma.cc/8VT2-WBPH] (discussing debunked myths that Black people have a higher pain tolerance than white people); see infra Part II.B (discussing coverage of sexual and reproductive health services).

⁴⁵ Kriegersupra note 40, at 48, 66–67 (discussing how transgenerational social inheritance of privilege, deprivation, and resulting conditions, and potentially, epigenetic imprinting and transgenerational inheritance, may drive population distributions of health inequities across generations); Ross & Solinger, supra note 14, at 12, 225.

⁴⁶ Id.

⁴⁷ Stefanie J. Hollenbach, Associations Between Historically Redlined Districts and Racial Disparities in Current Obstetric Outcomes, 4(9) JAMA Network Open (2021) (finding through a cohort study of 64,804 live births in 17 zip codes that historically redlined zip codes were associated with increased preterm and periviable birth).

⁴⁸ Id.

⁴⁹ Nancy Krieger et al., Jim Crow and Estrogen-Receptor-Negative Breast Cancer: U.S.-Born Black Women and White Non-Hispanic Women, 1992–2012, 28(1) Cancer Causes Control (Jan. 2017).

⁵⁰ Combahee River Collective Statement 1 (Combahee River Collective ed., 1977) (on file with the Yale University American Studies Department) (credited as one of the earliest expressions of intersectionality, though not in name); Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, U. Chi. Legal F. 139, 139–167 (1989) (first coining the term intersectionality in name); Patricia Hill Collins, Black Feminist Thought 17 (2000).

⁵¹ Crenshaw, supra note 50, at 139.

⁵² Combahee River Collective Statement, supra note 50, at 1; see also Asian Cmtys. for Reprod. Just., supra note 11, at 6–7; Ross, supra note 8, at 73–74; Krieger, supra note 40, at 114; Chrisler, supra note 40, at 1.

⁵³ See, e.g., Black Birthing Persons Matter—All of Them, Harv. Med. S. Primary Care Rev. (Apr. 22, 2022), https://info.primarycare.hms.harvard.edu/review/black-birthing-persons-matter.

⁵⁴ Sarah London, Reproductive Justice: Developing a Lawyering Model, 13 Berkeley J. Afr.-Am. L. & Pol’y 71, 76 (2011); See also Ross & Solinger, supra note 14, at 10–13, 93.

⁵⁵ Crenshaw, supra note 50, at 140.

⁵⁶ Id.

⁵⁷ Id. at 152.

⁵⁸ Id.

⁵⁹ Id. at 166–67; see also Keeanga-Yamahtta Taylor, Until Black Women are Free, None of Us Will Be Free, The New Yorker (Jul. 20, 2020), https://www.newyorker.com/news/our-columnists/until-black-women-are-free-none-of-us-will-be-free (discussing the Combahee River Collective’s argument that Black women who live and experience compounded oppression at the intersection of multiple identities have a right to formulate political agendas that are responsive to their experiences).

⁶⁰ See Asian Cmtys. for Reprod. Just., supra note 11, at 2; Ross, supra note 8, at 1.

⁶¹ See id. at 6.

⁶² See Emily Benfer et al., Health Justice Strategies to Combat the Pandemic: Eliminating Discrimination, Poverty, and Health Disparities During and After COVID-19, 19 Yale J. Health Pol’y, L & Ethics 122, 139 (2020).

⁶³ See Ross, supra note 8, at 4–5; see also Amy Alspaugh et al., Universal Health Care for the United States: A Primer for Health Care Providers.

⁶⁴ See, e.g., Wiley, supra note 17, at 47, 63 (2014) (discussing access to comprehensive health services as a reproductive justice priority); Ross & Solinger, supra note 14, at 190.

⁶⁵ Program History, Medicaid.gov, https://www.medicaid.gov/about-us/programhistory/index.html (last visited Mar. 13, 2021).

⁶⁶ See Social Security Act, 42 U.S.C. § 1396a.

⁶⁷ 42 U.S.C. § 1396a(a)(4); § 1396a(a); 1396d(a).

⁶⁸ See infra Part II.A and Part II.B.

⁶⁹ Id.

⁷⁰ See infra Part II.A (discussing uptake of optional eligibility categories); Part II.B (discussing uptake of optional benefits).

⁷¹ See infra Part II.B (discussing abortion coverage beyond the Hyde amendment’s exceptions).

⁷² Id. (discussing state violations of federal abortion coverage requirements and emerging bans on care).

⁷³ 42 U.S.C. §§ 1396a(a)(10)(A) (describing eligibility categories and income requirements); 1396a(b) (prohibiting conditions of eligibility including age requirements of more than 65 years, residence requirements that exclude any people residing in the state, and citizenship requirements that exclude any citizens); Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. § 1611 (severely restricting eligibility for immigrants); 42 C.F.R. § 435.403 (describing state residence requirements).

⁷⁴ Marmor, supra note 6, at 18–19 (discussing how social stigma shaped eligibility parameters).

⁷⁵ Id. at 11, 19, 29, 46–47, 52 (discussing the AMA’s opposition to national health insurance and support of the Kerr-Mills proposal as an anti-Medicare risk mitigation strategy, unintentionally furthering a final Social Security Act reform package that included Medicaid in addition to rather than instead of Medicare).

⁷⁶ Id.

⁷⁷ See Pearson, supra note 6; Somers & Perkins, supra note 6, at 99; Levins, supra note 6; Marmor, supra note 6, at 52.

⁷⁸ See, e.g., Priscilla Huang, Anchor Babies, Over-Breeders, and the Population Bomb: The Reemergence of Nativism and Population Control in Anti-Immigration Policies, 2 Harv. L. & Pol’y Rev. 385, 387–92 (2008); Ross & Solinger, supra note 14, at 151, 176, 182; see also Beth Reinhard et al., The Return of The Welfare Queen, The Atlantic (Dec. 14, 2013), https://www.theatlantic.com/politics/archive/2013/12/the-return-of-the-welfare-queen/282337/ [https://perma.cc/RZ4X-2KD4].

⁷⁹ See Della Winters & Adria LcLaughlin, Soft Sterilization: Long-Acting Reversible Contraceptives in the Carceral State, 35 J. Women & Soc. Work 218, 223 (2019); Jennifer Nelson, Women of Color & The Reproductive Rights Movement 67–73 (2003) (discussing findings from 1975–76 data that Medicaid-enrolled women were sterilized at a rate two to four times higher than nonrecipients and findings on coercive sterilizations of Medicaid beneficiaries in exchange for access to care during this era); Charlotte Rutherford, Reproductive Freedoms and African-American Women, 4 Yale J.L. & Feminism 255, 273–74 (1992).

⁸⁰ 42 U.S.C. § 1396(a)(10(A)(i)(VIII) (applying a 5 percent disregard on the 133 percent FPL income threshold, effectively raising the threshold to 138 percent FPL).

⁸¹ See Nat’l Fed. of Ind. Bus. v. Sebelius, 567 U.S. 519 (2012) (finding that Congress’ conditioning of continued federal medical assistance percentage on Medicaid expansion was unconstitutionally coercive).

⁸² This number does not reflect the more than 40,000 adults who will be newly eligible for Medicaid once South Dakota implements its recent expansion via ballot initiative. See, e.g., Status of State Medicaid Expansion Decisions: Interactive Map, Kaiser Family Found. (last visited Nov. 28, 2022), https://www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/ [https://perma.cc/D6DF-WWP4]; Aiden Lee et al., Health Coverage Changes Under the Affordable Care Act: End of 2021 Update (Off. of the Assistant Sec’y for Planning and Evaluation, U.S. Dep’t of Health & Human Srvs., 2022); Adam Searing, South Dakota Voters Pass Medicaid Expansion. What Happens Next?, Geo. U. Ctr. for Child. & Fams (Nov. 11, 2022), https://ccf.georgetown.edu/2022/11/11/south-dakota-voters-pass-medicaid-expansion-what-happens-next/ (last visited Nov. 28, 2022); Jessica Schubel, Expanding Medicaid for Parents Improves Coverage and Health for Both Parents and Children, Ctr. On Budget & Pol’y Priorities (Jun. 14, 2021), https://www.cbpp.org/research/health/expanding-medicaid-for-parents-improves-coverage-and-health-for-both-parents-and; Morcelle, supra note 8, at 3 (explaining that most states that have expanded Medicaid have aligned benefits for people in this eligibility category with their state plan for medical assistance, i.e., full-scope benefits). See Catherine McKee & Jane Perkins, Primer: State Plan Amendments v. Section 1115 Waivers (Nat’l Health L. Program 2021) (explaining that a state plan for medical assistance is the agreement between the federal government and a state on how the state will administer its Medicaid program. States can change their state plans by proposing amendments).

⁸³ Leighton Ku & Erin Brantley, The Economic and Employment Effects of Medicaid Expansion Under the American Rescue Plan, Commonwealth Fund (May 20, 2021), https://www.commonwealthfund.org/publications/issue-briefs/2021/may/economic-employment-effects-medicaid-expansion-under-arp [https://perma.cc/3TG6-LVGB]; Gideon Lukens, Medicaid Coverage Gap Affects Even Larger Group Over Time Than Estimates Indicate, Cent. For Budget and Pol. Priorities (Sep. 3, 2021), https://www.cbpp.org/research/health/medicaid-coverage-gap-affects-even-larger-group-over-time-than-estimates-indicate [https://perma.cc/43RK-X4CT] (estimating that as of September 2021, at any given time, about 2.2 million uninsured adults with incomes below FPL were uninsured because of state non-expansion).

⁸⁴ Colleen Grogan & Sunggeun (Ethan) Park, The Racial Divide in State Medicaid Expansions, 43 J. Health Pol., Pol’y & L. 539, 540 (2017) (finding that state policymakers’ prioritization of white public opinion and neglect of Black public opinion may contribute to non-expansion); April Simpson, In the Rural South, Poor Health Tied to Systemic Racism and Legacy of Slavery, Ctr. For Pub. Integrity (Nov. 5, 2021), https://publicintegrity.org/inside-publici/newsletters/watchdog-newsletter/south-poor-health-tied-racism-slavery-medicaid-expansion/ [https://perma.cc/WNN3-BW4Y].

⁸⁵ People in the resulting Medicaid coverage gap do not qualify for traditional Medicaid eligibility categories but have incomes too low to qualify for ACA marketplace subsidies. Gideon Lukens & Breanna Sharer, Closing the Medicaid Coverage Gap Would Help Diverse Group and Narrow Racial Disparities, Cent. For Budget and Pol. Priorities (Jun. 20, 2021), https://www.cbpp.org/research/health/closing-medicaid-coverage-gap-would-help-diverse-group-and-narrow-racial [https://perma.cc/8AV2-A9RJ].

⁸⁶ Id.

⁸⁷ See, e.g., Judith Solomon, Closing the Coverage Gap Would Improve Black Maternal Health 1 (Ctr. Budget & Pol’y Priorities (CBPP) ed., 2021).

⁸⁸ Lukens & Sharer, supra note 85, at 2, 8.

⁸⁹ See, e.g., Susan Klein, Opinion: On August 4, Vote No on Amendment 2, Mo. Times (July 29, 2020); see also discussion infra Part II.B.

⁹⁰ See, e.g., Anna Bernstein & Kelly M. Jones, The Economic Effects of Contraceptive Access: A Review of the Evidence 5 (Inst. for Women’s Policy Research 2019).

⁹¹ See Schubel, supra note 82.

⁹² Id.

⁹³ See Eugene Declercq & Laurie Zephyrin, Commonwealth Fund, Maternal Mortality in the United States: A Primer (2020).

⁹⁴ See id.

⁹⁵ Pregnancy Mortality Surveillance System, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/reproductivehealth/maternal-mortality/pregnancy-mortality-surveillance-system.htm#trends [https://perma.cc/97WC-65QE] (last visited Dec. 1, 2021) (finding pregnancy-related mortality ratios over three and two times higher for non-Hispanic Black women and non-Hispanic American Indian or Alaska Native women, respectively, than their non-Hispanic white counterparts).

⁹⁶ See Susanna Trost et al., Pregnancy-Related Deaths: Data from Maternal Mortality Review Committees in 36 U.S. States, 2017–2019, 4 (Ctrs. for Disease Control & Prevention, ed., 2022).

⁹⁷ See Taylor, supra note 8, at 506–14; Asteir Bey et al., Ancient Song Doula Servs. et al., Advancing Birth Justice: Community-Based Doula Models as a Standard of Care for Ending Racial Disparities 7–8 (2019).

⁹⁸ See, e.g., Joyce Martin et al., Births in the United States, 2019, Ctrs. for Disease Control & Prevention (Oct. 2020), https://www.cdc.gov/nchs/data/databriefs/db387-H.pdf [https://perma.cc/RM2K-R95Z]; Postpartum Care, Medicaid.gov (last visited Dec. 12, 2021), https://www.medicaid.gov/state-overviews/scorecard/postpartum-care/index.html [https://perma.cc/A3P7-8T93]; Postpartum Care, Medicaid.gov (last visited Dec. 12, 2021), https://www.medicaid.gov/state-overviews/scorecard/postpartum-care/index.html [https://perma.cc/A3P7-8T93].

⁹⁹ See, e.g., March Clapp et al., Preconception Coverage Before and After the Affordable Care Act Medicaid Expansions, 132(6) Obstetrics & Gynecology 1394 (Dec. 2018); Emily M. Johnston, Post-ACA, More Than One-Third of Women with Prenatal Medicaid Remained Uninsured Before or After Pregnancy, 40(4) Health Affairs 572 (Apr. 2021).

¹⁰⁰ Id.

¹⁰¹ See Declercq & Zephyrin, supra note 93.

¹⁰² See Maggie Clark et al., Medicaid Expansion Narrows Maternal Health Coverage Gaps, But Racial Disparities Persist 1 (Geo. U. Ctr. for Children & Families, 2021).

¹⁰³ Id.

¹⁰⁴ See, e.g., Morgan Liotta, Delayed endometriosis diagnosis reduces chance of pregnancy by 33%, Royal Au. Col. Gen. Practitioners (Oct. 6, 2021), https://www1.racgp.org.au/newsgp/clinical/delayed-endometriosis-diagnosis-reduces-chance-of [https://perma.cc/6G3D-7FLB].

¹⁰⁵ See, e.g., Adam Searing & Adaora A. Adimora, HIV and Medicaid Expansion: Failure of Southern States to Expand Medicaid Makes Elimination of HIV Infection in the United States Much Harder to Achieve 6–7 (Geo. U. Ctr. for Child. & Fams., Nov. 2020) (explaining that state non-expansion is associated with higher HIV incidence and mortality).

¹⁰⁶ Madeline T. Morcelle, For Congress’ Medicaid Coverage Gap Fix, Racial Justice Relies on the Details, Nat’l Health L. Program (Oct. 20, 2021), https://healthlaw.org/for-congress-medicaid-coverage-gap-fix-racial-justice-relies-on-the-details/ [https://perma.cc/K93N-SFUY].

¹⁰⁷ Id.

¹⁰⁸ See, e.g., Build Back Better Act of 2021, H.R.5376, 117th Cong. (as reported by H. Comm. on Rules, November 3, 2021), https://rules.house.gov/sites/democrats.rules.house.gov/files/BILLS-117HR5376RH-RCP117-18.pdf (providing people in the Medicaid coverage gap with qualified health plans retrofitted with some, but not nearly all, Medicaid benefits with added affordability protections, yet not all of Medicaid’s procedural due process and other consumer protections); Medicaid Saves Lives Act of 2021, S.2315, 117th Cong. (establishing a new program to provide, at a minimum, Essential Health Benefits without premiums, deductibles, or cost sharing, butgro without Medicaid’s more comprehensive benefits and protections).

¹⁰⁹ See Letter from National Health Law Program to Congressional Leadership (Sep. 8, 2021), https://healthlaw.org/resource/nhelp-letter-to-congressional-leadership-on-hcbs-and-coverage-gap/.

¹¹⁰ See Medicaid & CHIP Payment & Access Comm’n, Advancing Maternal and Infant Health By Extending the Postpartum Coverage Period 29–30, 65 (2021).

¹¹¹ 42 U.S.C. §§ 1396a(a)(10)(A)(i)(III), 1396d(n)(1)(A), 1396u-1(b)(1)(A); 42 C.F.R. § 435.116(a)(1).

¹¹² States must provide pregnancy-related Medicaid coverage to people with household incomes up to the higher of: (1) 133 percent FPL; or (2) the state’s Medicaid income limit for pregnant women as of December 19, 1989 (up to 185 percent FPL). Thus, many people who are not eligible for Medicaid expansion because their incomes exceed the income cap or who live in coverage gap states are eligible for pregnancy-related Medicaid instead. 42 U.S.C. §§ 1396a(a)(10)(A)(i)(IV), 1396a(l)(1)(A), 1396a(l)(2)(A)(i-ii, iv).

¹¹³ 42 C.F.R. § 440.210(a)(2)(i), (ii); see also discussion on pregnancy-related benefits infra in Part II.B.

¹¹⁴ 42 U.S.C. 1396a(e)(5); see Declercq & Zephyrin, supra note 93.

¹¹⁵ See Jamila Taylor, Advancing Maternal Health Equity in the Next Reconciliation Package, The Century Found. (Sep. 10, 2021), https://tcf.org/content/commentary/advancing-maternal-health-equity-next-reconciliation-package/.

¹¹⁶ Id.

¹¹⁷ Id.

¹¹⁸ Id.

¹¹⁹ American Rescue Plan Act of 2021, Pub. L. No. 1172, 117th Cong. § 9812(a) (2021) (amending 42 U.S.C. 1396a(e)).

¹²⁰ Biden-Harris Administration Announces More than Half of All States Have Expanded Access to 12 Months of Medicaid and CHIP Postpartum Coverage, CMS (Oct. 27, 2022), https://www.cms.gov/newsroom/press-releases/biden-harris-administration-announces-more-half-all-states-have-expanded-access-12-months-medicaid.

¹²¹ See, e.g., Part II.A.1, infra for discussion on some states’ continued refusals to implement Medicaid expansion.

¹²² Pub. L. No. 1172, 117th Cong. § 9812(b) (2021).

¹²³ Virtual Interview with Dr. Jamila Taylor, Director of Health Care Reform, The Century Foundation (Nov. 19, 2021); Morcelle, supra note 112; Madeline T. Morcelle, Fostering Maternal Health Equity Through Budget Reconciliation, Nat’l Health L. Program (Apr. 11, 2022), https://healthlaw.org/fostering-maternal-health-equity-through-budget-reconciliation/ [https://perma.cc/NK8X-RCUX].

¹²⁴ See Huang, supra note 78, at 385, 387–92.

¹²⁵ See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. §§ 1611 (generally excluding noncitizens who are not “qualified aliens” from federal public benefits, including Medicaid); 1612(2) (providing limited exceptions for refugees and asylees, certain permanent residents, and certain lawfully residing veterans, active duty military personnel, and their family members); 1613(a) (imposing a 5-year waiting period on eligibility for LPRs who entered the U.S. after August 22, 1996).

¹²⁶ Id.

¹²⁷ Congress not only failed to remedy Medicaid’s immigrant eligibility restrictions in the ACA, but it also largely excluded immigrants from the law’s key reforms, exacerbating inequities in access to care and reinforcing xenophobic and racist policymaking norms. Medha D. Maklouf, Health Justice for Immigrants, 4 U. Penn. J.L. & Pub. Aff’s 235, 236–37 (2019).

¹²⁸ 42 U.S.C. § 1396b(v)(4)(A) (authorizing a SPA option to cover “lawfully residing” noncitizen pregnant women and/or children, regardless of date of entry).

¹²⁹ Medicaid/CHIP Coverage of Lawfully-Residing Immigrant Children and Pregnant Women, Kaiser Fam. Found., https://www.kff.org/health-reform/state-indicator/medicaid-chip-coverage-of-lawfully-residing-immigrant-children-and-pregnant-women/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D [https://perma.cc/3KPT-HTW5] (last updated Jan. 1, 2022).

¹³⁰ See 42 C.F.R. § 457.10 (2002).

¹³¹ Medicaid and CHIP Income Eligibility Limits for Pregnant Women as a Percent of the Federal Poverty Level, Kaiser Fam. Found., https://www.kff.org/health-reform/state-indicator/medicaid-and-chip-income-eligibility-limits-for-pregnant-women-as-a-percent-of-the-federal-poverty-level/ [https://perma.cc/Y97Y-32VG] (last updated Jan. 1, 2022).

¹³² See Huang, supra note 78, at 391–92 (explaining that a pregnant person with cancer covered under the “unborn child” option could receive prenatal care, but not cancer treatment).

¹³³ 8 U.S.C. § 1611(b)(1)(A).

¹³⁴ Id.

¹³⁵ CERD Working Group on Health and Environmental Health, Unequal Health Outcomes in the United States: Racial and Ethnic Disparities in Health Care Treatment and Access, the role of the Social Determinants of Health, and the Responsibility of the State 17–18 (United Nations, 2008).

¹³⁶ Valerie Lacarte et al., Medicaid Access and Participation: A Data Profile of Eligible and Ineligible Immigrant Adults, Migration Pol’y Inst. 1, 1–3 (2021).

¹³⁷ Kinsey Hasstedt et al., Immigrant Women’s Access to Sexual and Reproductive Health Coverage and Care in the United States, Commonwealth Fund (Nov. 2018).

¹³⁸ Health Coverage of Immigrants, Kaiser Fam. Found. (Apr. 6, 2022), https://www.kff.org/racial-equity-and-health-policy/fact-sheet/health-coverage-of-immigrants/ (explaining that citizen children with at least one noncitizen parent are significantly more likely to be uninsured than those with two citizen parents, as well as other health implications for the children of immigrants).

¹³⁹ See e.g., Health Equity and Access Under the Law for Immigrant Families Act, H.R. 3149, S.1660, 117th Cong. (2021).

¹⁴⁰ Additional reforms are needed to address barriers beyond uninsurance, such as health care discrimination on the basis of national origin (including national origin), sex (including pregnancy and related conditions, sexual orientation, gender identity, sex stereotypes, and sex characteristics), disability, race, color, age, and any intersection thereof, as well as barriers in federal immigration policy. See generally Mara Youdelman et al., National Health Law Program Comments on RIN 0945–AA17: Nondiscrimination in Health Programs and Activities, Nat’l Health L. Prog. (Oct. 3, 2022), https://healthlaw.org/resource/nhelp-comments-on-section-1557-proposed-rule/;

¹⁴¹ See Morcelle, supra note 8, at 3–5.

¹⁴² Id. at 4. For example, Medicaid’s mandatory home health benefit helps people with chronic health conditions access the skilled nurse services and other care that they need to manage their conditions and experience greater self-determination over their lives. See also Ross & Solinger, supra note 14, at 204–05.

¹⁴³ See 42 U.S.C. §§ 1396d(a)(xiii)(1); (2); (4)(A); (4)(C); (7); (8).

¹⁴⁴ See 42 U.S.C. § 1396d(a)(10)(C)(iii)(II); 42 U.S.C. § 1396a(a)(10)(G)(V); 42 U.S.C. § 1396d(a)(xiii)(4)(C); see also Priscilla Huang et al., An Advocate’s Guide to Reproductive and Sexual Health in the Medicaid Program 6, 92 (Nat’l Health L. Program, 2019); Morcelle, supra note 8, at 2–5.

¹⁴⁵ See 42 U.S.C. §§ 1396d(a)(xiii)(2)(B); (C).

¹⁴⁶ Federal Medical Assistance Percentages or Federal Financial Participation in State Assistance Expenditures (FMAP), Off. Ass’t Sec. for Health, U.S. Dep’t Health & Hum. Srvs., https://aspe.hhs.gov/federal-medical-assistance-percentages-or-federal-financial-participation-state-assistance [https://perma.cc/AL3B-G6JW] (last visited Aug. 1, 2022).

¹⁴⁷ 42 U.S.C. § 1396r-8(d) (requiring that states that cover the optional prescription drug benefit cover outpatient drugs of any manufacturer participating in the Medicaid Drug Rebate Program); Medicaid and CHIP in the Territories (Medicaid and CHIP Payment and Access Commission ed., Feb. 2021), https://www.macpac.gov/wp-content/uploads/2019/07/Medicaid-and-CHIP-in-the-Territories.pdf [https://perma.cc/9DHJ-ECEJ]; Drug Products in the Medicaid Drug Rebate Program, Cntrs. Medicare & Medicaid Servs. (last visited Apr. 1, 2022), https://data.medicaid.gov/dataset/0ad65fe5-3ad3-5d79-a3f9-7893ded7963a/data?conditions[0][property]=fda_product_name&conditions[0][value]=truvada&conditions[0][operator]=%3D [https://perma.cc/SRX5-CLRK].

¹⁴⁸ Id.

¹⁴⁹ See discussion infra in Part II.B.1.

¹⁵⁰ Id.; William Tentindo, Medicaid Coverage for Gender-Affirming Care, Williams Inst. (stating that as of 2019, eighteen states and D.C. explicitly covered gender-affirming care, twelve states explicitly exclude such care, and twenty states had not expressly addressed the issue); Weigel et al., Coverage and Use of Fertility Services in the U.S., Kaiser Fam. Found. (Sept. 15, 2020) https://www.kff.org/womens-health-policy/issue-brief/coverage-and-use-of-fertility-services-in-the-u-s/ [https://perma.cc/49LF-MY52] (finding that as of 2020, only one state covered any fertility treatment, and no state covered artificial insemination or in-vitro fertilization); Farah Yousry, For Patients with Sickle Cell Disease, Fertility Care is About Reproductive Justice, Nat’l Pub. Radio (Dec. 5, 2022), https://www.npr.org/sections/health-shots/2022/12/05/1129125408/for-patients-with-sickle-cell-disease-fertility-care-is-about-reproductive-justi?ft=nprml&f= (explaining that sickle cell disease, which disproportionately affects Black people, can complicate fertility, yet health insurance coverage for fertility preservation and treatment is not guaranteed and varies significantly from state to state).

¹⁵¹ Id.; See discussion infra in Part II.B.1.

¹⁵² See, e.g., Kerith J. Conron & Shoshana K. Goldberg, LGBT Adults with Medicaid Insurance, Williams Inst. 1, 1 (Jan. 2018), https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Medicaid-Coverage-US-Jan-2018.pdf [https://perma.cc/8KSZ-HCLK]; Distribution of the Nonelderly with Medicaid by Race/Ethnicity, Kaiser Fam. Found., https://www.kff.org/medicaid/state-indicator/medicaid-distribution-nonelderly-by-raceethnicity/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D[https://perma.cc/8CRP-AVK4] (last visited Nov. 1, 2022); Medicaid Works for People with Disabilities, Ctr Budget & Pol’y Priorities (Aug. 29, 2017), https://www.cbpp.org/sites/default/files/atoms/files/8-29-17health.pdf [https://perma.cc/Q4TZ-NDJM].

¹⁵³ Dobbs v. Jackson Women’s Health Organization, 597 U.S. — (2022).

¹⁵⁴ See, e.g., Tracking the States Where Abortion is Now Banned, N.Y. Times (Aug. 9 2022), https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html [https://perma.cc/B28L-G78J]; Kaine, Murkowski, Sinema, & Collins Introduce Legislation To Codify Roe V. Wade, U.S. Senator for Alaska Lisa Murkowski (Aug. 1, 2022), https://www.murkowski.senate.gov/press/release/kaine-murkowski-sinema-and-collins-introduce-legislation-to-codify-roe-v-wade [https://perma.cc/9FEM-LHWE] (discussing the Reproductive Freedom for All Act, which would not actually prohibit pre-viability abortion bans); Deepa Shivaram, A bill to codify abortion protections fails in the Senate, Nat’l Pub. Radio (May 11, 2022), https://www.npr.org/2022/05/11/1097980529/senate-to-vote-on-a-bill-that-codifies-abortion-protections-but-it-will-likely-f [https://perma.cc/TTX2-M6SM] (discussing the Senate’s failure to pass the more robust Women’s Health Protection Act, which would do so).

See State Bans on Abortion Throughout Pregnancy, Guttmacher Inst. (Aug. 8, 2022), https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions [https://perma.cc/9H5Z-UZ3N].

¹⁵⁵ Rolling Back a Woman’s Right to Choose: A Timeline of the Hyde Amendment and its Impact on Abortion, Ctr. For Repro. Rights 1, http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/CRR_HydeTimeline.pdf?_ga=1.1743409.1239423874.1469647185 [https://perma.cc/L6QX-QSYR] (last visited Jul. 31, 2022).

¹⁵⁶ P.L. 94-439, § 209; 123 Cong. Rec. 19,700 (1977) (statement of Rep. Henry Hyde).

¹⁵⁷ See Harris v. McRae, 448 U.S. 297 (1980).

¹⁵⁸ See Jill Adams & Jessica Arons, A Travesty of Justice: Revisiting Harris v. McRae, 6 Wm. & Mary J. Women & L. 5, 6 (2014).

¹⁵⁹ See Consolidated Appropriations Act, 2021, Pub. L. No. 116–260, div. H., tit. V, §§ 506–507.

¹⁶⁰ See, e.g., 42 U.S.C. 42 U.S.C. § 1397ee(c)(1); 25 U.S.C. § 1676; 42 U.S.C. § 1395y; Adams & Arons, supra note 158, at 13; Ctr. For Repro. Rights, supra note 155, at 1.

¹⁶¹ Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1302(b)(1), 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act, Pub. L. No. 111–152, § 1302(b)(1), 2707(a) (2010); H.R. 3962, 111th Cong. § 265 (as passed by House, Nov. 7, 2009); Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010). See also, Julie Rovner, Clash over Abortion Stalls Health Bill, Again, Nat’l Pub. Radio (Mar. 21, 2018), https://www.npr.org/sections/health-shots/2018/03/21/595191785/clash-over-abortion-hobbles-a-health-bill-again-here-s-how [https://perma.cc/H78R-4F2J] (discussing President Obama and Democratic Congressional leadership’s acquiescence to prohibitions on federal abortion funding in the health insurance marketplaces as a bargaining chip to secure votes for ACA passage).

¹⁶² See, e.g., Fabiola Carrión et al., Abortion Coverage Under Medicaid (Nat’l Health L. Program, Apr. 27, 2022), https://healthlaw.org/resource/abortion-coverage-under-medicaid-2022/ [https://perma.cc/TT44-FPTV].

¹⁶³ U.S. Gov’t Accountability Off., GAO-19-159, CMS Action Needed to Ensure Compliance with Abortion Coverage Requirements 15–26 (2019); Madeline T. Morcelle & Cat Duffy, There’s More that HHS Can (and Must) Do to Protect Abortion Access, Nat’l Health L. Prog. (Oct. 17, 2022), https://healthlaw.org/theres-more-that-hhs-can-and-must-do-to-protect-abortion-access/ (discussing state violations of federal Medicaid abortion coverage requirements and opportunities for CMS to enforce these requirements).

¹⁶⁴ Id.

¹⁶⁵ Id.; see also Fabiola Carrión, When States Fail to Cover Abortions under Medicaid, NHeLP Steps In, Nat’l Health L. Program (Dec. 5, 2019), https://healthlaw.org/when-states-fail-to-cover-abortions-under-medicaid-nhelp-steps-in [https://perma.cc/473E-5EDN].

¹⁶⁶ See, e.g., Sarah C.M. Roberts et al., Out of Pocket Costs and Insurance Coverage for Abortion in the United States, 24 Women’s Health Issues e211, e211 (2014).

¹⁶⁷ See, e.g., Jenna Jerman et al., Barriers to Abortion Care and Their Consequences for Patients Traveling for Services: Qualitative Findings from Two States 49 Perspectives Sexual & Repro. Health, 95–102 (Jun. 2017); Rachel K. Jones et al., New Evidence: Texas Residents Have Obtained Abortions in at Least 12 States That Do Not Boarder Texas, Guttmacher Inst. (Nov. 2021), https://www.guttmacher.org/article/2021/11/new-evidence-texas-residents-have-obtained-abortions-least-12-states-do-not-border [https://perma.cc/B2DF-3UCK] (finding that amid implementation of S.B. 8, a six-week abortion ban, many Texans are “finding out-of-state care to be cost prohibitive or too logistically challenging”).

¹⁶⁸ See Stanley K. Henshaw et al., Restrictions on Medicaid Funding for Abortion, A Literature Review, Guttmacher Inst. (2009) (finding that one in four people who would have had Medicaid-funded abortions were forced to carry pregnancies to term).

¹⁶⁹ Dobbs v. Jackson, No. 19-1392, 597; Garnet Henderson, ‘We Were Forced’: Abortion Clinics Move Across State Lines to Stay Open, Rewire News Group (Aug. 1, 2022), https://rewirenewsgroup.com/2022/08/01/we-were-forced-abortion-clinics-move-across-state-lines-to-stay-open/ [https://perma.cc/7ARC-SKNB].

¹⁷⁰ See, e.g., Lauren J. Ralph et al., Self-reported Physical Health of Women Who Did and Did Not Terminate Pregnancy After Seeking Abortion Services, 171 Annals of Internal Med. 238–247 (2019); Caitlin Gerdts et al., Side Effects, Physical Health Consequences, and Mortality Associated with Abortion and Birth after an Unwanted Pregnancy, 26 Women’s Health Issues 55–59 (2016) (identifying a Turnaway study participant who died after an abortion denial from a condition that has a higher risk of death for pregnant people).

¹⁷¹ As Justice Thurgood Marshall acknowledged, “By the time a pregnancy has progressed to the point that it endangers the life of the mother, it is in many cases too late to prevent her death, because abortion is no longer safe.” 448 U.S. 297, 339–40 (Marshall, J., dissenting). In the wake of Dobbs, a similar dynamic will be observed in states with abortion bans that include “life endangerment” exceptions. See, e.g., Jessica Winter, What the “Life of the Mother” Might Mean in a Post-Roe America, New Yorker (May 12, 2022).

¹⁷² See Marian Jarlenski et al., State Medicaid Coverage of Medically Necessary Abortions and Severe Maternal Morbidity and Maternal Mortality 129 Obstent. Gynecol. 5, 786 (2017); Black Maternal Health Fed. Pol’y Collective, The Intersection of Abortion Access and Black Maternal Health, Century Found. (Jun. 22, 2022), https://tcf.org/content/facts/the-intersection-of-abortion-access-and-black-maternal-health/ [https://perma.cc/KE48-E4T5].

¹⁷³ M. Antonia Biggs et al., Understanding Why Women Seek Abortions in the U.S., 13 BioMed Cent. Women’s Health 29 (2013) (most study participants seeking abortions indicated that they could not afford to have a baby or that their pregnancy would interfere with their work, education, or ability to care for current dependents).

¹⁷⁴ See Diana G. Foster et al., Comparison of Health, Development, Maternal Bonding, & Poverty Among Children Born After Denial of Abortion vs. After Pregnancies Subsequent to an Abortion, 172 J. Am. Med. Ass’n Pediatrics, 1053–60 (2018); Biggs et al., supra note 173 at 29.

¹⁷⁵ Black Maternal Health Fed. Pol’y Collective, supra note 172; Threats on All Fronts: The Links Between the Lack of Abortion Access, Health Care, and Workplace Equity, Nat’l Partnership for Women & Fams. (Aug. 2022), https://www.nationalpartnership.org/our-work/health/reports/threats-on-all-fronts.html [https://perma.cc/4BZ2-484D].

¹⁷⁶ Adams & Arons, supra note 158, at 8-9.

¹⁷⁷ About, All* Above All, https://allaboveall.org/about/ [https://perma.cc/2ML5-F3LH] (last visited Dec. 2, 2021).

¹⁷⁸ Equal Access to Abortion Coverage in Health Insurance Act, H.R.2234, S.1021, 117th Cong. (2021); 42 U.S.C. § 1983; see also Jane Perkins, Pin The Tail on the Donkey: Beneficiary Enforcement of the Medicaid Act Over Time, 9 St. Louis U. J. of Health L. & Pol’y 207–234, 208 (2016); but see Talevski v. Health & Hosp. Corp. of Marion Co., 6 F.4th 713 (7th Cir. 2021), No. 21-806 (U.S. May 2, 2022) (concerning provisions of the Nursing Home reform Act, 42 U.S.C. § 1396r).

¹⁷⁹ The latter category includes “diagnoses, illnesses, or medical conditions which might threaten the carrying of the fetus to full term[.]” 42 C.F.R. § 440.210(a)(2)(i), (ii).

¹⁸⁰ See Medicaid & CHIP Payment & Access Comm’n, supra note 110 (explaining that as of 2020, Arkansas, New Mexico, North Carolina, and South Dakota only provided only pregnancy-related services to people with a wide range of incomes, and California provided only pregnancy-related coverage to people with incomes above 133 percent FPL).

¹⁸¹ See, e.g., Regular Session Memorandum, Maternal and Child Health Access, MCHA Special Session Alert 1 (July 23, 2013) http://www.mchaccess.org/pdfs/alerts/Regular%20Session%20Memo%20July%2023%202013.pdf [https://perma.cc/G3Z8-UCUC].

¹⁸² Taylor Interview, supra note 123.

¹⁸³ Saraswathi Vedam et al., The Giving Voice to Mothers Study: Inequity and Mistreatment During Pregnancy and Childbirth in the United States, 16 Reproductive Health 1, 7, 8 (2019).

¹⁸⁴ Carol Sakala et al., Listening to Mothers in California: A Population-Based Survey of Women’s Childbearing Experiences, Full Survey Report, 1, 64-65 (2018).

¹⁸⁵ Amy Chen, Alexis Robles-Fradet, & Helen Arega, Building a Successful Program for Medi-Cal Coverage for Doula Care: Findings from a Survey of Douglas in California 5 (Nat’l Health L. Program 2020).

¹⁸⁶ Id.

¹⁸⁷ Bey et al., supra note 97, at 3.

¹⁸⁸ Id. at 5-10.

¹⁸⁹ Amy Chen, Current State of Doula Medicaid Implementation Efforts in November 2022 9 (Nat’l Health L. Program 2022); Doula Medicaid Project, Nat’l Health L. Program, https://healthlaw.org/doulamedicaidproject/ [https://perma.cc/YP5F-GFVC] (last visited Apr. 1, 2022).

¹⁹⁰ Chen, Robles-Fradet, & Arega, supra note 185, at 1–5.

¹⁹¹ Id.

¹⁹² Id. (discussing common implementation challenges, including overly restrictive training or certification requirements proposed by state Medicaid agencies, inadequate support and guidance for doulas to become Medicaid providers, and insufficient reimbursement rates).

¹⁹³ Id. at 8.

¹⁹⁴ Id. at 9.