Dept. of Health and Hallowed Services

Cristina Page

Once laws were designed to allow those who objected to abstain from participating in abortions. But Secretary Leavitt's clear intent now is to allow these laws to apply to a larger set of health care services.

As Secretary of the Department of
Health and Human Services, Mike Leavitt has shown himself to be a
devoted bureaucrat and a man of moral conviction. Unfortunately he
insists on combining the two, tailoring the nation’s business to his
faith. That was about the only thing made clear by yesterday’s release
of his new, much anticipated, HHS regulation.

Leavitt is attempting to pass off his new regulation as protecting
health care providers who, for reasons of conscience, don’t want to
take part in abortion services. He told reporters, "This regulation . .
. is consistent with my intent to focus squarely on the issue of
conscience rights. This specifically goes to the issue of abortion and
conscience." But for those schooled in the fine print, the regulation
might be described as a love letter to extremists. After all, there are
already no less than three laws on the books spanning 30 years that
protect individuals who do not wish to take part in abortion care. (And
for the record, no one wants those opposed to abortion providing
abortion care, certainly not patients.) Leavitt does not claim that
these laws are inadequate; he does not point to any violations of them.
He seems to want us to believe that he is merely underscoring
longstanding laws. As he himself pointed out, "It is currently a
violation of three separate federal laws to compel medical
practitioners to perform a procedure that violates their conscience."

In fact, the new HHS regulation far expands the jurisdiction of
those decades-old laws. Here’s the alarming part. The regulation states
it will protect "any individual health care provider or institution
from being compelled to participate in, or from being punished for
refusal to participate in, a service that, for example, violates their
conscience." Once laws were designed to allow those who objected to
abstain from participating in abortions. That is clearly too limiting.
Leavitt’s clear intent is to allow these laws to apply to a larger set
of health care services. As Leavitt puts it, to "protect federally
funded medical practitioners from being coerced into providing
treatments they find morally objectionable."

It’s no longer just abortion services that are targeted. Now its any treatment that someone finds morally objectionable.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

The morally imaginative can concoct objections to just about any
procedure, practice or medication. And the new regulation makes no
suggestion about which, if any, personal objection might go too far.

Take those who believe (without scientific evidence) that
contraception can cause abortion. The language of Leavitt’s new
regulation appears to be a big gain. Now, it would seem health care
workers need not be involved with the provision of birth control pills
as long as they can say "they find morally objectionable" the use of
contraception. When asked specifically by reporters whether the
proposal would provide cover for those who claim contraception is
abortion, Leavitt offered, "This regulation does not seek to resolve
any ambiguity in that area."

Leavitt is suspiciously close-mouthed on other important
questions raised (after an earlier version was leaked to the press).
For instance, would laws that now require emergency room staff to offer
rape victims pregnancy prevention be unenforceable in the face of
"moral objections." If read broadly, not only could rape victims be
refused this care by an objecting ER staffer, they could also be denied
information about where they can receive it.

The regulation also has raised fears that a pro-choice organization
could not screen out pro-life job applicants. (Thank you for calling
Planned Parenthood, this is Randall Terry, how may I help you?)

If Leavitt’s intent is as broad as his broadly worded regulation to
suggest, your right to health care – all health care – will be
determined by the sensitivities of nearly every person in a white
smock, and even perhaps others. Your doctor may not have a problem
giving you that prescription, but will the pharmacist fill it? And, if
so, will the pro-life cashier ring it up? Take note: Leavitt’s new
regulation defines health care program or service as: "an activity
related in any way to providing medicine, health care, or any other service related to health or wellness" (emphasis mine).

Women have had to run an obstacle course to get reproductive health
care in recent years. If we leave it to Leavitt, the number of
obstacles will grow.

The Department of Health and Human Services has opened a 30-day
comment period on the proposed regulation. Below are the directions to
register your point of view. To directly tell Leavitt what you think,
he’s accepting comments from the public on his blog.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

News Health Systems

The Crackdown on L.A.’s Fake Clinics Is Working

Nicole Knight

"Why did we take those steps? Because every day is a day where some number of women could potentially be misinformed about [their] reproductive options," Feuer said. "And therefore every day is a day that a woman's health could be jeopardized."

Three Los Angeles area fake clinics, which were warned last month they were breaking a new state reproductive transparency law, are now in compliance, the city attorney announced Thursday.

Los Angeles City Attorney Mike Feuer said in a press briefing that two of the fake clinics, also known as crisis pregnancy centers, began complying with the law after his office issued notices of violation last month. But it wasn’t until this week, when Feuer’s office threatened court action against the third facility, that it agreed to display the reproductive health information that the law requires.

“Why did we take those steps? Because every day is a day where some number of women could potentially be misinformed about [their] reproductive options,” Feuer said. “And therefore every day is a day that a woman’s health could be jeopardized.”

The facilities, two unlicensed and one licensed fake clinic, are Harbor Pregnancy Help CenterLos Angeles Pregnancy Services, and Pregnancy Counseling Center.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

Feuer said the lawsuit could have carried fines of up to $2,500 each day the facility continued to break the law.

The Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care. Unlicensed centers must disclose that they are not medical facilities.

Feuer’s office in May launched a campaign to crack down on violators of the law. His action marked a sharp contrast to some jurisdictions, which are reportedly taking a wait-and-see approach as fake clinics’ challenges to the law wind through the courts.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before the U.S. Court of Appeals for the Ninth Circuit.

Some 25 fake clinics operate in Los Angeles County, according to a representative of NARAL Pro-Choice California, though firm numbers are hard to come by. Feuer initially issued notices to six Los Angeles area fake clinics in May. Following an investigation, his office warned three clinics last month that they’re breaking the law.

Those three clinics are now complying, Feuer told reporters Thursday. Feuer said his office is still determining whether another fake clinic, Avenues Pregnancy Clinic, is complying with the law.

Fake clinic owners and staffers have slammed the FACT Act, saying they’d rather shut down than refer clients to services they find “morally and ethically objectionable.”

“If you’re a pro-life organization, you’re offering free healthcare to women so the women have a choice other than abortion,” said Matt Bowman, senior counsel with Alliance Defending Freedom, which represents several Los Angeles fake clinics fighting the law in court.

Asked why the clinics have agreed to comply, Bowman reiterated an earlier statement, saying the FACT Act violates his clients’ free speech rights. Forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs,” Bowman said.

Reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, Googling “abortion clinic” might turn up results for a fake clinic that discourages abortion care.

“Put yourself in the position of a young woman who is going to one of these centers … and she comes into this center and she is less than fully informed … of what her choices are,” Feuer said Thursday. “In that state of mind, is she going to make the kind of choice that you’d want your loved one to make?

Rewire last month visited Lost Angeles area fake clinics that are abiding by the FACT Act. Claris Health in West Los Angeles includes the reproductive notice with patient intake forms, while Open Arms Pregnancy Center in the San Fernando Valley has posted the notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”

credo_rewire_vote_3

Vote for Rewire and Help Us Earn Money

Rewire is in the running for a CREDO Mobile grant. More votes for Rewire means more CREDO grant money to support our work. Please take a few seconds to help us out!

VOTE!

Thank you for supporting our work!