Proposed HHS Regulation Could Still Block Access to Contraception, Other Health Services

Jessica Arons

HHS has released its proposed regulation to “help protect health care providers from [religious] discrimination.” The good news is it no longer attempts to re-define abortion to include birth control. But the regulation no longer defines pregnancy or abortion at all.

HHS has released
its proposed regulation to “help protect health care providers from
[religious] discrimination.” The good news is it no longer attempts to re-define abortion to include birth control. But don’t breathe a sigh of relief just yet. The regulation
no longer defines pregnancy or abortion at all. But Sec. Mike Leavitt
indicated in the press conference that individuals might be able to
define those terms for themselves in determining what they find morally
objectionable, which means they still may be able to deny women access
to oral contraceptives, emergency contraception, and the IUD, among
other commonly used methods of birth control.

And that’s just the beginning.

While most of the regulation limits the scope of allowable moral
objections to training, performing, counseling, or referring for
abortion and sterilization, some sections are not so restricted.

Entities to whom this subsection 88.4(d) applies shall
not require any individual to perform or assist in the performance of
any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions.

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That seems to be an exception you could drive a truck through.

Also note the objections can be based not only on religious beliefs
but on any personal moral convictions. This is much broader than the
traditional conscience clauses, including those that allowed for
conscientious objectors during the Vietnam War.

Finally, the proposed regulation would extend protection from
doctors and nurses to just about anyone who might come into contact
with a patient, and even some who might not.

[A]n employee whose task it is to clean the instruments
used in a particular procedure would be considered to assist in the
performance of the particular procedure.

By that logic, an ambulance driver, a receptionist, and even the
person who processes health insurance forms might be able to refuse to
perform their jobs if related to a health care service they find
morally objectionable. Volunteers are explicitly protected too.

The public may submit comments on the regulation during the next 30 days to http://www.Regulations.gov or via email to consciencecomment@hhs.gov.

This post was first published at ThinkProgress.

News Contraception

Native American Women Still Don’t Have Access to OTC Emergency Contraception

Martha Kempner

It's been two years since the FDA made certain types of emergency contraception available without a prescription to women of all ages, but Indian Health Service has yet to update its policy.

When the Food and Drug Administration (FDA) in 2013 approved over-the-counter access to certain emergency contraceptive pills without any age restrictions, Indian Health Service (IHS) promised that it would update its policies to make this pregnancy-prevention method available in the pharmacies it runs.

Two years later, the IHS policy remains the same, and a group of U.S. senators last week sent a letter to the secretary of Health and Human Services, Sylvia Mathews Burwell, urging her to look into the matter.

Emergency contraception (EC) is a high dose of hormones that can prevent pregnancy by preventing ovulation if taken within three to five days of unprotected intercourse. The sooner it is taken, the better it works, which is why immediate access without a prescription is so important.

Efforts to win FDA approval for over-the-counter status, however, took the better part of a decade with opponents falsely suggesting that emergency contraception causes abortions (it will not, in fact, affect an established pregnancy) and arguing that making it readily available—especially to teens and young women—will increase promiscuity.

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One of the available versions of EC—marketed as Plan B One-Step—was approved in July 2009 for over-the-counter sale, but such sales were limited to women 17 and older. Younger women still needed a prescription.

The age restriction was dropped to 15 in April 2013. Finally, in June 2013 the FDA—complying with a district court ruling—declared that Plan B One-Step would be available without a prescription for “all women of reproductive potential,” regardless of age.

At the time, a group of lawmakers led by Sen. Barbara Boxer (D-CA) reached out to then U.S. Secretary of Health and Human Services (HHS) Kathleen Sebelius urging her to create a long-term solution that would ensure EC was available over the counter in pharmacies run by the IHS.

Sebelius and her staff replied, promising that they were already working on updates to IHS pharmacy policy. So far, however, no policy has been released.

Boxer’s staff recently conducted a survey of 20 IHS pharmacies and found that EC was not readily available. Some pharmacies did not offer EC at all, others still required a prescription, and others wouldn’t provide it to certain women based on their age.

A similar survey by the Native American Women’s Health Education Resources found that access to EC varied widely at 69 IHS centers.

This is particularly disturbing because Native American women who rely on these health centers often live in rural areas where access to other health care and even pharmacies is limited. As the American Civil Liberties Union (ACLU) points out, “The nearest commercial pharmacy may be hundreds of miles away.”

The ACLU also notes that access to EC is particularly important to Native American women because they face rates of sexual assault that are more than twice as high as other women in this country. EC is often given to sexual assault survivors to reduce the chance that they will become pregnant from their attack.

Last week, to try to spur action, Sens. Boxer, Patty Murray (D-WA), Jon Tester (D-MT), Richard Blumenthal (D-CT), Tammy Baldwin (D-WI), and Maria Cantwell (D-WA) wrote another letter to HHS.

“We request that you share the steps your Department has taken towards updating its policy and provide a clear timeline for when that process will be completed,” the letter reads. “Further, we ask that you share with us data from surveys of pharmacies the IHS has undertaken in order to assess access to emergency contraception and the steps that the Department and IHS plan to take to monitor patient access moving forward. We appreciate your consideration of this request.”

“Native American women have waited too long for access to emergency contraception, which is now much more easily available to women across the country,” the ACLU wrote. “The federal government is legally and morally obligated to ensure that these women and communities are not left behind.”

Investigations Law and Policy

Americans United for Life’s Efforts to Eliminate Insurance Coverage for Abortion Get Help From ALEC Members

Sofia Resnick

Twenty-three states have passed laws barring abortion coverage from insurance plans within state health exchanges. What has largely gone unnoticed is that many of these policies emanate from Americans United for Life, a little-known group that regularly has access to conservative lawmakers at the annual ALEC conferences.

Among the most prevalent weapons in the multi-pronged assault on the Affordable Care Act (ACA) is the attempt to eliminate access to insurance coverage of safe abortion care. Twenty-three states have now passed laws barring abortion coverage from insurance plans within state health exchanges (some with limited exceptions), according to the Guttmacher Institute.

What has largely gone unnoticed, however, is that many of these new state policies emanate from one little-known group that regularly has access to conservative lawmakers at the annual conferences of the American Legislative Exchange Council (ALEC).

In August 2010, some five months after President Barack Obama signed his signature bill into law, right-wing and corporate forces gathered at the Manchester Grand Hyatt hotel in downtown San Diego for ALEC’s 37th annual meeting, in part to discuss strategies to cripple what was then—and still is—seen by the political right as the incarnation of Democratic evil. Several scheduled sessions centered on how to undermine and obliterate the ACA.

One such group was Americans United for Life (AUL), which frequently hosts an exhibitor’s booth at ALEC meetings offering conference-goers an assortment of model bills designed in various ways to diminish access to legal reproductive health services. Embedded within AUL’s annual compendium of anti-choice models, Defending Life, was a new blueprint on how states can deny insurance coverage of abortion in their health-insurance exchanges created as part of the ACA.

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Abortion Coverage Ban Sponsors With ALEC Ties

At least 23 states have passed bans on insurance coverage of abortion within their health exchanges. Bills that are similar to Americans United for Life’s “Federal Abortion Mandate Opt-Out Act ” have been sponsored by several legislatures with previous ties to the American Legislative Exchange Council. With the exception of Louisiana Rep. Frank Hoffmann, none of the following current state lawmakers returned requests for comment on their motivations for sponsoring these bills or whether they used AUL’s model. According to AUL spokesperson Kristi Hamrick, eight states have passed these abortion insurance bans using AUL model legislation, and four more have passed similar legislation with the group’s assistance. Cited ALEC connections come from information published by the liberal nonprofit advocacy groups Common Cause and the Center for Media and Democracy.

Several state lawmakers—who were listed as ALEC members—went on to introduce similar legislation that has become part of the national strategy to undermine the ACA.

Eight states have passed their bills based on AUL’s model legislation, “The Federal Abortion Mandate Opt-Out Act,” and four others passed similar bills with the group’s assistance, said AUL spokesperson Kristi Hamrick.

The confluence of groups pushing to restrict access to reproductive health care and those more generally recognized as attacking environmental regulations and labor rights is further evidence of a new trend on the political right. Abortion politics have taken center stage in the political fights of recent campaigns and legislative sessions, as formerly disparate threads of the conservative movement—free-marketeers, big business, and fundamentalist Christians—have come together over the sole remaining “moral” on which they believe they can rouse the public.

An even more deliberate example of this type of alliance exists in shared funding streams between limited-government and anti-choice groups. Rewire reported in November that so-called free market groups connected to billionaire brothers Charles and David Koch funneled large donations to anti-choice groups through a pass-through group launched to oppose the Affordable Care Act. Among the recipients were AUL and its 501(c)(4) affiliate, Americans United for Life Action.

“There Was a Real Excitement at ALEC”

From its inception, fear that the health-care reform law would legitimize abortion—by making it a valid insurance claim—has been chief among AUL’s motivations for pushing bans on insurance coverage of abortion in state exchanges everywhere.

“The law fattens the pockets of abortion providers, but most critically, advances an objective less tangible but more significant to their long-term goals—legitimacy,” wrote AUL staff counsel Mary Harned of the Affordable Care Act in a Washington Examiner op-ed last September. “Abortion-rights advocates believe that, if abortion is recognized as ‘legitimate healthcare,’ it will become less controversial and will be viewed simply as one of many available gynecological services.”

Though these concerns related specifically to “moral” issues, AUL’s model bills had a broader appeal. Many conservative lawmakers at ALEC’s 2010 annual meeting were looking for opportunities to weaken the health-reform law and recognized that by eliminating access to abortion coverage, AUL’s model laws could pack a one-two punch: undermining insurance systems, as well as reducing access to abortion.

“There was a real excitement at ALEC over our model bill—I think you’ll see this type of legislation moving forward in several states during their coming legislative sessions,” said Dan McConchie, AUL’s vice president of government affairs, according to a 2010 AUL newsletter. “Five states have enacted opt-out laws so far, and this is just the beginning.”

Indeed, in quick succession, ten of ALEC’s state legislative members sponsored versions of this type of legislation (see sidebar, at left).

For instance, Louisiana Rep. Frank A. Hoffmann—listed as a former ALEC Education Task Force member in a San Diego meeting memo published by Common Cause, which advocates for transparency and accountability in government—sponsored a 2010 state bill that, like AUL’s model, bars insurance coverage of abortion within Louisiana’s health exchange.

Despite having been an ALEC member, Hoffman said he did not acquire the model bill through ALEC and its association with AUL.

“I am aware that ALEC is supportive of these things,” he said. “But, again, this didn’t come directly from that as far as my support and getting help and the background and all of this.”

Rather, local anti-abortion groups—namely, Louisiana Right to Life and the Bioethics Defense Fund in New Orleans—helped Hoffman draft the law, he said. He said did not know whether those groups had used AUL’s model.

Indeed, ALEC does not formally endorse AUL’s opt-out model legislation, said ALEC Senior Director of Public Affairs Bill Meierling.

“[T]he policy identified by AUL is not consistent with the current direction and policy focus on the American Legislative Exchange Council,” Meierling said in an email, emphasizing that ALEC is currently dedicated to “limited government, free markets and federalism alone.”

Neither Meierling nor AUL’s Hamrick would explain the nature of AUL’s attendance at the meeting or the group’s presentation of their model legislation. Hamrick told Rewire that AUL has “sometimes had a booth” at ALEC meetings.

But in addition to exhibiting at ALEC’s 2010 conference, the Madison, Wisconsin-based Center for Media and Democracy has through its projects ALECExposed and SourceWatch published evidence that AUL was an exhibitor at ALEC’s 38th annual meeting in New Orleans in August 2011. And in a firsthand account of attending an ALEC conference in December 2007 published in the March 2008 issue of The Progressive, Rep. Mark Pocan (D-WI), who at the time was a Wisconsin state representative, wrote that AUL was an exhibitor, among other anti-choice groups such as the Family Research Council and the Pro-Family Legislative Network.

Whether ALEC formally endorses AUL or not, it is clear that AUL is having a significant impact on the legislators that are affiliated with ALEC, and that a merging of free-market, big business, Beltway politics and fundamentalist Christian views is well underway via, among other vectors, bills that undermine women’s access to abortion services.

Reducing Access

Shortly after the Affordable Care Act was signed into law, Americans United for Life seized on a little-noticed wrinkle in law—language that made it possible for states to ban health insurance plans that offer abortion coverage from the exchanges.

On its website, AUL describes its Federal Abortion Mandate Opt-Out Act as the “primary strategic effort” of its “strategy to respond to the anti-life provisions” in Obama’s health-care reform bill. The organization has argued—in the media and on a specially created website—that allowing plans that cover abortion to participate in health exchanges amounts to a major breach of conscience rights.

AUL spokesperson Kristi Hamrick went as far as to claim that, without this Opt-Out-Act, the health-care law would force Americans to subsidize the “deadly business” of abortion.

By passing “opt-out” legislation, states can refuse to allow insurance plans available through the state’s health insurance marketplace from covering “elective” abortions. Some states have offered varying exceptions within these coverage bans.

“This type of bill is vital, as the abortion industry has moved from Choice to Coercion,” Hamrick told Rewire in an email, referring to AUL’s model legislation. “No longer content to work for ‘choice,’ the abortion industry works to force Americans to comply with and subsidize their deadly business. … An opt-out is necessary to protect Americans from being forced to subsidize abortions, against their First Amendment Constitutional Rights of Conscience.”

The claim that the federal government is subsidizing abortion through the ACA is a familiar trope of the anti-choice movement. In fact, this claim is false, as the Obama administration has noted several times.

Obamacare as Common Foe for Anti-Labor, Anti-Regulation, Anti-Choice Communities

ALEC’s historic meddling in areas of sensitive social policy has come back to sting the organization. For instance, ALEC faced backlash—and lost corporate membership—in the wake of the shooting of Trayvon Martin, when news broke in the spring of 2012 that the group had advanced “stand your ground” laws across the United States.

ALEC has also been subject to belated criticism over its past work campaigning against divestment from apartheid South Africa, crafting model bills with anti-gay animus, and disseminating anti-abortion model bills, such as parental-consent legislation.

As a result, ALEC makes a habit of insisting to the press that it no longer engages in social policy, a claim that activists like Lisa Graves—who runs the Center for Media and Democracy, which has been trailing ALEC’s activities for years—simply don’t believe.

“This notion that they’re just focused on limited government is simply not true,” Graves said of ALEC. “Their bills have a lot of implications. … I guess you could call those limiting government, but in fact those are in some ways eviscerating longstanding public institutions that have made our country strong.”

Graves said she was not surprised at the idea of AUL seizing the opportunity to spread around its model bills at ALEC conferences, by purchasing an exhibitor’s booth.

“Clearly AUL sees that as a really important forum for—spending money, giving money to ALEC—in order to have a place at the table in their convention to reach hundreds of state lawmakers and get their bills in the hands of those lawmakers.”

But, Graves said, this raises concerns.

“In a political democracy, you shouldn’t have unelected corporate officials, unelected special-interest group representatives actually voting as equals with your lawmaker on bills before they’re introduced in your state house,” she said. “And the activity of those special interests pushing their bills to be introduced and passed ought to count as lobbying, and it ought to be disclosed as such.”

The reality is that very few abortions are paid for with federal Medicaid dollars. As a result of a law known as the Hyde Amendment, federal dollars cannot be used to pay for abortions, except for pregnancies resulting from rape, incest, and life-endangerment. Indeed, in fiscal year 2012, just 150 abortions nationwide were funded using federal Medicaid dollars under the restrictive policies of Hyde, according to an official from the Centers for Medicare & Medicaid Services.

In fact, many women who technically qualify for Medicaid coverage of abortion care never receive it. Studies conducted by researchers at Ibis Reproductive Health from 2007 to 2011 found that many women seeking abortions in the case of rape, incest, or life endangerment face “systematic barriers” accessing Medicaid coverage of abortion, such as convoluted eligibility requirements, complicated enrollment procedures, and difficulty proving the pregnancy resulted in rape or was life threatening. One of the studies found that in 13 out of 15 states where abortion providers were interviewed, 64 percent of the qualifying claims for abortion were ultimately rejected, as noted in a research paper published by the Center for Women Policy Studies in January 2012.

“Because of the challenges abortion providers and women face in working with Medicaid, most Medicaid-eligible women do not have the option to use their insurance for abortion care,” the Ibis researchers wrote. “In our interviews with women, many reported turning to drastic measures to pay for their procedures. Women described taking out payday loans, delaying bill payments, pawning jewelry, selling drugs, performing sex work, and borrowing money from friends and family in order to raise money for abortion.”

President Obama’s health-reform law left it up to the states to decide whether or not to offer coverage for abortion beyond those allowed by the Hyde Amendment. The law stipulated that exchanges should include at least one qualified health plan that covers abortions beyond those covered by Hyde and at least one plan that does not. However, states were also given the option to opt out of offering plans that cover abortions. When plans do include abortion coverage beyond those allowed by Hyde, the law requires a separate premium for the abortion coverage, to be paid for by the policyholder.

Nevertheless, AUL hasn’t let up on its attempt to cast the health-reform laws as something of a blank check for abortion providers in order to bolster its argument that its Opt-Out Act is necessary, lest states be accused of promoting federally subsidized abortion. In this vein, AUL has discouraged states from expanding their Medicaid coverage, arguing it will lead to more money going to Planned Parenthood.

AUL’s overall strategy—in addition to preventing increased access to abortion coverage, especially among lower-income women—also works toward chipping holes in Obamacare, whose primary intention originally was to expand insurance coverage to the country’s many uninsured.

Recent statistics suggest that it is actually difficult for many women to obtain abortion coverage through their private insurance plans. While many private plans do offer abortion coverage, the extent to which women use insurance to pay for abortion—or are aware that their plans cover abortion—is unclear. In its 2010 Employer Health Benefits Annual Survey, for example, the Kaiser Family Foundation, a nonpartisan health care-focused research nonprofit, found that 71 percent of all firms surveyed said they did not know whether they covered “elective abortions.” In contrast, 19 percent of “large firms” (those with 200 or more workers) and 9 percent “small firms” (those with between three and 199 workers) said they did offer abortion coverage in their plans.

The push to excise abortion from health insurance coverage is part of a significant strategy of the anti-choice movement, which has realized in recent years that activists do not have to topple Roe v. Wade to end access to safe abortions. Rather, anti-choice proponents have understood that making abortion unobtainable, even though it is legal, can in some cases have the same effect. One effective strategy has been to shut down abortion providers by passing onerous regulations, as has been clearly demonstrated in Texas. But another equally effective method at reducing access to abortion is to make it unaffordable.

And AUL is hip to this strategy.

In the legislative findings of AUL’s model bill, which has become law in eight states, according to the group, the organization repeats unfounded claims that providing insurance coverage through subsidized or private insurance plans increases the demand and therefore the incidence of abortion.

“Given that more women have abortions when they are covered by public programs, and public or private insurance coverage of a procedure generally leads to increased usage of that procedure, the State of [Insert name of State] concludes that the incidence of abortion would increase with the subsidization of private insurance plans that cover abortion,” the model bill reads.

The Guttmacher Institute disputes these claims, citing as one example a New England Journal of Medicine analysis from 2010, which reported that after Massachusetts began providing abortion coverage for people using subsidized private plans and those on Medicaid—through the state’s 2006 universal health-care law—abortion rates actually declined, by 1.5 percent between 2006 and 2008.

And AUL has not stopped at trying to ban insurance coverage of abortion in only health exchanges. The organization has also been pushing model bills that bar private insurance plans from covering abortion, models that bar state employees from receiving abortion coverage, and models that combine both bans.

Megan Peterson, deputy director of the National Network of Abortion Funds (NNAF), a Boston-based nonprofit that helps low-income women pay for their abortions, told Rewire that these exchange bans will likely make it even harder for women to access abortion.

“There are women who would have had coverage who now won’t,” Peterson said. “And for a lot of those women, coming up with the money to pay for an abortion out of pocket will be a real hardship for themselves and their family.”

NNAF is a partner in All Above All, a multi-year campaign focused on eliminating bans on federal funding of abortion coverage, including the Hyde Amendment. Peterson said she thinks these “opt-out” laws will potentially delay the campaign’s goal.

“I think that this is just the latest page in the same old playbook that was originally was written by Henry Hyde, which was using whatever vehicle is available to try to prevent anyone from being able to have an abortion,” Peterson said of the exchange bans, adding that this type of law is “further entrenching this insane idea that it’s acceptable for politicians to interfere in people’s personal, private decisions by keeping them from having the coverage they need to make access real.”

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