Countdown to Conscience Clause Regulation

Rachel Walden

New "provider conscience" regulations proposed by HHS could severely limit women's access to contraception and other health care. During a public comment period, the department continued to frustrate advocates' effort to comment on the new regulations.

Back in July, a widely-decried proposal leaked out of U.S. Department of Health and Human Services (HHS). The new regulation explicitly enabled providers to define contraception as abortion and therefore refuse to provide it, and prevented clinics and other entities that receive federal funds from refusing to hire individuals who hold this belief — in contrast to the medical definitions of pregnancy and abortion. The proposal would have accepted as legitimate the redefinition of "pregnancy" and "human life" to begin before a fertilized egg has implanted, ignoring the medical consensus and fact that many fertilized eggs never proceed to implant and become successful pregnancies.

On August 21st, the official version of the proposed rule was released, and while some of the problematic language about contraception and the beginnings of life was removed, the new version did little to quell concerns that the move was designed to limit women’s access to reproductive health care. Framed by HHS as protecting "physician conscience" — prohibiting providers from being forced to provide procedures such as abortion and sterilization to which they may object on moral or religious grounds — the officially proposed rule is broad and ill-defined enough to leave considerable room for debate about what it would mean in practice if approved.

Although protections of physician conscience already exist in federal law, the HHS proposal expands the list of who would be covered by the protections to include support staff who are not directly involved with performing "objectionable" procedures, such as those "whose task it is to clean the instruments." The effect of this expansion would be to prevent federally-funded clinics and other entities from refusing to hire or being able to fire or discipline those who object to performing even basic and necessary general support services.

While the leaked proposal made clear that it would allow providers to define abortion however they liked – extending to forms of contraception that could hypothetically but have not been proven to at times prevent implantation of a fertilized egg – the official release does not address the definitions of the protected procedures at all, despite explicitly defining less controversial terms such as "individual" and "workforce." Lacking more explicit support for medically accepted definitions of contraception and abortion, the proposal might be interpreted to override state provisions – for example, those that require even Catholic hospitals to provide or refer for emergency contraception. Others have suggested that the proposal may jeopardize Title X-funded providers of family planning services.

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HHS Secretary Michael Leavitt has claimed that the proposal was not "intended" to affect access to contraception or abortion, while neglecting to explain why the proposal would be needed if it is intended to apply only to abortion as currently medically defined — as providers are already protected from being forced to perform this procedure. See this previous post from Emily Douglas for more discussion of how the proposed rule may limit access to reproductive health care despite Leavitt’s statment that the proposal is only meant to address "the legal right medical practitioners have to practice according to their conscience and patients should be able to choose a doctor who has beliefs like his or hers."

HHS Obfuscates During Commenting Period

If you’re left scratching your head about the justification for the proposed rule thus far, there’s more. In a previous post for Rewire, I described Leavitt’s misunderstanding — or willful mischaracterization — of his own justification for the new rule, the ob/gyn certification issue.  Leavitt has repeatedly claimed that without adopting the new rule, ob/gyns who object to abortion might lose their certification. The certifying body, the American Board of Obstetrics and Gynecology, has clearly stated that this is not true. ABOG explained this to Leavitt in a letter this March, but released a public letter to the Secretary when the official proposal was released, calling it a "the grossly untrue and unfair allegation."

The obfuscation doesn’t stop with Leavitt’s rationale, however — it has apparently extended to technical issues on the proposed rule as well. HHS has repeatedly made it difficult for advocates to follow and respond to the conscience discussions, starting with Secretary Leavitt’s initial blog post on the issue. Posted on August 7 at one URL, the web address changed by August 9 after a flood of comments opposing the proposal, and changed again by August 14. Visitors to the blog who had been referred to the initial URLs received only a "not found" error – until the URL was later reused for the Secretary’s third post on the topic on Aug 21. I received a tip from a technical staffer that the number of comments "caused problems with the blog and they had to import the post multiple times." It is not at all clear why that would be the case or require a URL change.

These problems have carried over into the public comment period. A lengthy delay preceded the posting of the official docket and the release of submitted public comments. HHS released the proposed rule on August 21, and appeared in the Regulations.gov system for public comment on August 26; the public comment period officially opened on that day, and ends on September 25. But on September 3, the URL and docket number for the rule changed. A helpful Regulations.gov representative explained that this occurred because the site first posts a temporary docket, and the agency (HHS) later creates a permanent docket. I was assured that any comments made on the initial release would carry over, but many organizations and individuals who had publicized the comment period may have been sharing a link for rule that will no longer work. (The correct URL for submitting your comments is presently http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&d=HHS-OS-2008-0011-0001.)

I was less satisfied with the response from HHS as to why, as of September 11 — 17 days into the public comment period — none of the comment submissions had been made available for public viewing. The Regulations.gov staffer indicated that this was because HHS simply hadn’t done it yet, stating "The agency has not yet posted any of the comments submitted," and referring me to the docket for the contact information of the specific person at HHS who is supposed to address any questions. I received no immediate response to my email, but discoverd that overnight on the day of my email, more than 1,100 comments suddenly appeared on the site. The response that did arrive to my query as to why no public comments had been posted was as follows, in its entirety: "Please use procedures in the Federal Register to ask questions about the conscious [sic] regulations.”

Advocates Talk Back

Although the comments are not very easy to browse, you can read the submitted comments (1,315 of them as of this writing) here. While some comments are in support of the proposed rule, many express objection. Some commenters have asked that health care providers be required to post notices as to which procedures, drugs and services they refuse to provide. Others note the problem of rural and underserved communities and low-income women where access to reproductive health care may be nonexistent if local providers "exert her/his moral authority on that community."

The lack of definition in the proposal seems to be a concern on both sides of the issue. One supporter of the proposal notes the lack of definition, explaining that "Leaving ‘abortion’ undefined is a two edged tactic. It might serve to allow these regulations to be instituted, but unfortunately it will lead to very uneven application of the non-discrimination regulations." Another commenter who objects to move asks that "At a minimum, the regulation should include explicit language clarifying that birth control is not at risk and that our current reproductive rights, guaranteed by law, will not be jeopardized."

If you would like to submit your comment prior to the Sep 25 deadline, please go to view the proposed rule and make your comment online. The proposal document also contains instructions for submitting comments via regular mail.

For much more information on the new regulations, click here.

Culture & Conversation Politics

Latino Votes Count or ‘Why Would They Be Trying to Suppress Them?’: Dolores Huerta on What’s at Stake in 2016

Ally Boguhn

“We know that we’ve had this problem that Latinos sometimes don’t vote—they feel intimidated, they feel like maybe their vote doesn’t matter,” Huerta told Rewire. Huerta encouraged people to consider both what is at stake and why their vote might be suppressed in the first place.

Republican nominee Donald Trump launched his campaign for president in June 2015 with a speech notoriously claiming Mexican immigrants to the United States “are bringing drugs, and bringing crime, and their rapists.”

Since then, both Trump’s campaign and the Republican Party at large have continued to rely upon anti-immigrant and anti-Latino rhetoric to drum up support. Take for example, this year’s Republican National Convention in Cleveland, where Sheriff Joe Arpaio—whose department came under fire earlier this year for racially profiling Latinos—was invited to take the stage to push Trump’s proposed 2,000-mile border wall. Arpaio told the Arizona Republic that Trump’s campaign had worked with the sheriff to finalize his speech.

This June, just a day shy of the anniversary of Trump’s entrance into the presidential race, People for the American Way and CASA in Action hosted an event highlighting what they deemed to be the presumptive Republican nominee’s “Year of Hate.”

Among the advocates speaking at the event was legendary civil rights leader Dolores Huerta, who worked alongside César Chávez in the farm workers’ movement. Speaking by phone the next day with Rewire, Huerta—who has endorsed Democratic nominee Hillary Clinton—detailed the importance of Latinos getting involved in the 2016 election, and what she sees as being at stake for the community.

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The Trump campaign is “promoting a culture of violence,” Huerta told Rewire, adding that it “is not just limited to the rallies,” which have sometimes ended in violent incidents, “but when he is attacking Mexicans, and gays, and women, and making fun of disabled people.”

Huerta didn’t just see this kind of rhetoric as harmful to Latinos. When asked about its effect on the country at large, she suggested it affected not only those who already held racist beliefs, but also people living in the communities of color those people may then target. “For those people who are already racist, it sort of reinforces their racism,” she said. “I think people have their own frustrations in their lives and they take it out on immigrants, they take it out on women. And I think that it really endangers so many people of color.”

The inflammatory rhetoric toward people of color by presidential candidates has led to “an alarming level of fear and anxiety among children of color and inflaming racial and ethnic tensions in the classroom,” according to an April report by the Southern Poverty Law Center (SPLC). The organization’s analysis of the impact of the 2016 presidential election on classrooms across the country found “an increase in bullying, harassment and intimidation of students whose races, religions or nationalities have been the verbal targets of candidates on the campaign trail.” Though the SPLC did not name Trump in its questions, its survey of about 2,000 K-12 educators elicited up more than 1,000 comments about the Republican nominee, compared to less than 200 comments mentioning other presidential candidates still in the race at that time.

But the 2016 election presents an opportunity for those affected by that violent rhetoric to make their voices heard, said Huerta. “The Latino vote is going to be the decisive vote in terms of who is going to be elected the president of the United States,” she continued, later noting that “we’ve actually seen a resurgence right now of Latinos registering to vote and Latinos becoming citizens.”

However, a desire to vote may not always be enough. Latinos, along with other marginalized groups, face many barriers when it comes to voting due to the onslaught of voter restrictions pushed by conservative lawmakers across the country—a problem only exacerbated by the Supreme Court’s 2013 ruling gutting portions of the Voting Rights Act (VRA) meant to safeguard against voter suppression efforts. The 2016 election season will be the first presidential election without those protections.

As many as 875,000 eligible Latino voters could face difficulty voting thanks to new restrictions—such as voter ID laws, proof of citizenship requirements, and shortened early voting periods—put into place since the 2012 elections, a May analysis from the National Association of Elected and Appointed Officials found.

When it comes to restrictions like this, Huerta “absolutely” saw how they could create barriers for those hoping to cast their ballot this year. “They’ve made all of these restrictions that keep especially the Latino population from voting. So it’s very scary,” said Huerta, pointing to laws in states like Texas, which previously had one of the strictest voter ID laws in the country. (The state has since agreed to weaken its law following a judge’s order).

“We know that we’ve had this problem that Latinos sometimes don’t vote—they feel intimidated, they feel like maybe their vote doesn’t matter,” Huerta went on.

Huerta encouraged people to consider both what is at stake and why their voting rights might be targeted in the first place. “What we have to think about is, if they’re doing so much to suppress the vote of the Latino and the African-American community, that means that that vote really counts. It really matters or else why would they be trying to suppress them?”

Appealing to those voters means tapping into the issues Latinos care about. “I think the issues [Latinos care about] are very, very clear,” said Huerta when asked how a presidential candidate could best appeal to the demographic. “I mean, immigration of course is one of the issues that we have, but then education is another one, and health care.”

A February survey conducted jointly by the Washington Post and Univision found that the top five issues Latino voters cared about in the 2016 election cycle were jobs and the economy (33 percent), immigration (17 percent), education (16 percent), health care (11 percent), and terrorism (9 percent).

Another election-year issue that could affect voters is the nomination of a U.S. Supreme Court justice, Huerta added. She pointed out the effect justices have on our society by using the now-decided Whole Woman’s Health v. Hellerstedt case as an example. “You know, again, when we think of the presidents, and we think of the Supreme Court and we know that [was] one of the issues that [was] pending in the Supreme Court … whether what they did in Texas … was constitutional or not with all of the restrictions they put on the health clinics,” she said.

Latinas disproportionately face large barriers to reproductive health care. According to Planned Parenthood, they “experience higher rates of reproductive cancers, unintended pregnancy, and sexually transmitted infections than most other groups of people.” Those barriers are only exacerbated by laws like Texas’ HB 2, as the National Latina Institute for Reproductive Health explained in its amicus brief in the Whole Woman’s Health case prior to the decision: “Texas Latinas already face significant geographic, transportation, infrastructure, and cost challenges in accessing health services.”

“H.B. 2’s impact is acute because of the day-to-day struggles many Latinas encounter when seeking to exercise their reproductive rights,” wrote the organization in its brief. “In Texas, there is a dire shortage of healthcare facilities and providers in predominantly Latino communities. Texas has the highest percentage of uninsured adults in the country, and Texas Latinos are more than twice as likely as whites to be uninsured …. Additionally, the lack of public and private transportation creates a major barrier to accessing health services, especially in rural areas.”

As Rewire’s Tina Vasquez has reported, for undocumented women, the struggle to access care can be even greater.

Given the threats cases like Whole Woman’s Health have posed to reproductive rights, Huerta noted that “Trump’s constant attacks and misogynist statements” should be taken with caution. Trump has repeatedly vowed to appoint anti-choice justices to the Supreme Court if elected.

“The things he says without even thinking about it … it shows what a dangerous individual he can be when it comes to women’s rights and women’s reproductive rights,” said Huerta.

Though the race for the White House was a top concern of Huerta’s, she concluded by noting that it is hardly the only election that matters this year. “I think the other thing is we have to really talk about is, the presidency is really important, but so is the Senate and the Congress,” said Huerta.

“We’ve got to make sure we get good people elected at every level, starting at school board level, city council, supervisors, commissioners, etc. state legislatures …. We’ve got to make sure reasonable people will be elected, and reasonable people are voted into office.”

News Abortion

Anti-Choice Group Wants National Abortion Data Reporting Law

Teddy Wilson

Anti-choice activists claim that despite the evidence, the number of complications from abortion is higher than is being reported. States that track abortion care data have shown the procedure to be exceedingly safe.

A leading anti-choice organization is calling for a national database of abortion statistics and increased reporting requirements for states—proposals seen as part of a strategy to justify laws restricting access to abortion care.

The U.S. Supreme Court in June struck down provisions of Texas’ omnibus anti-choice law known as HB 2. The ruling relied heavily on research that showed abortion care was a safe and well regulated procedure. Anti-choice activists have long disputed those claims.

Clarke Forsythe, acting president of Americans United for Life (AUL), told Politico that there is not enough data on abortion. “The abortion advocates like to talk in vague terms about abortion but we need specifics,” Forsythe said. “We don’t have a national abortion data collection and reporting law.”

The Centers for Disease Control and Prevention (CDC) has collected “abortion surveillance” data since 1969. The CDC published the most recent report on abortion statistics in 2012.

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Abortion surveillance reports are created by compiling data from health agencies, provided voluntarily to the CDC, in all 50 states as well as the District of Columbia and New York City. The data includes deaths from abortion related complications, but does not include the number of complications that don’t result in deaths.

Reporting requirements for abortion statistics vary from state to state, with 46 states requiring that abortion providers submit regular reports, according to the Guttmacher Institute. Most states report the number of abortion procedures performed as well as the type of procedure, the gestation of the pregnancy, and demographic data of the patient.

There are 27 states that require providers to report the number of complications from abortion procedures.

The self-described “legal architect” of the anti-choice movement, AUL has been heavily involved in lobbying for state and federal laws that restrict access to abortion. The organization creates copycat legislation and distributes anti-choice proposals to state lawmakers, who then push the measures through legislatures.

Forsythe took a victory lap Monday for the organization’s role in promoting bills from the AUL’s “playbook of pro-life legislation” that were introduced this year in state legislatures. “AUL continued to assist states considering health and safety standards to protect women in abortion clinics,” Forsythe said in a statement.

Dozens of bills to increase reporting requirements have been introduced in state legislatures over the past several years. These proposals include several types of reporting requirements for abortion providers, and many of the provisions are similar to those found in AUL model legislation.

Arizona legislators in 2010 passed SB 1304, which required abortion providers to submit annual reports to the state and required the state Department of Health Services (DHS) to publish an annual report.

The Republican-backed legislation is similar to copycat legislation drafted that same year by AUL.

Since the law’s passage there have been very few complications resulting from abortion procedures reported in the state: from 2011-2014, less than 1 percent of abortions procedures in the state resulted in complications.

Arizona reported that 137 patients experienced complications out of 12,747 abortion procedures in 2014; 102 patients experienced complications out of 13,254 abortion procedures in 2013; 76 patients had complications out of 13,129 abortion procedures in 2012; 60 patients experienced complications out of 14,401 abortion procedures in 2011.

Dr. Daniel Grossman, a physician at the University of California, San Francisco who studied the impact of HB 2 for the Texas Policy Evaluation Project (TxPEP), told Politico that abortion has been shown to be exceptionally safe medical procedure.

“There’s already a lot of data that have been published documenting how safe abortion is in the U.S.,” Grossman said.“The abortion complication rate is exceedingly low.”

Anti-choice activists claim that despite the evidence, the number of complications from abortion is higher than is being reported. Joe Pojman, the executive director of the Texas Alliance for Life, told Politico that “better data” is needed.

Texas has required reporting of the number of complications from abortion procedures since 2013, and the data has shown that abortion complications are exceedingly rare. There were 447 complications out of 63,849 procedures in 2013 and 777 complications out of 54,902 procedures in 2014.

Pojman said that the Texas data “defies common sense” and that the complications are “are much smaller than what one would expect.”

The Texas abortion statistics reveal that it is safer to have an abortion than to carry a pregnancy to term in the state. Between 2008 and 2013, the most recent years for which data is available, there were 691 maternal deaths in Texas, compared to one death due to abortion complications between 2008 and 2014.

“There’s no sign that there’s a hidden safety problem happening in Texas,” Grossman said.

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