New HHS Regs Would Hit Low-Income Women, Women of Color Hardest

Bethany Sousa

Under current law, recipients of federal money cannot force medical professionals to provide abortion or sterilization services if they object for moral or religious reasons. But proposed regulations would expand these laws at patients' expense.

As if they haven’t done enough,
the Bush Administration is making one last attempt to undermine women’s
reproductive freedom.  The Department of Health and Human Services
(HHS) recently proposed a regulation that it claims will protect federally-funded
healthcare providers from discrimination; but in reality, will further
limit a woman’s ability to obtain health services and increase the
number of providers and institutions allowed to refuse her care. 
Low-income women and women of color who rely more on public programs
will ultimately be hit the hardest. Significant percentages of Latinas,
Asia Pacific Islanders and African-American women work in low-wage jobs
that don’t offer benefits and therefore, they lack health insurance
of any kind. Public programs such as Medicaid and Title X fill that
void by covering prenatal, pregnancy-related care and contraceptive
services. The deeply flawed regulation fails to serve the  needs
of these patients by erecting new barriers to their obtaining reproductive
healthcare.  

Under current law, recipients
of federal money, such as Medicaid and Title X, cannot force medical
professionals to provide a woman abortion or sterilization services
if they object for moral or religious reasons.  But the proposed
regulations would expand these laws at the expense of patients in several
ways.  For one, startlingly, healthcare providers may now be able
to refuse to provide a woman contraception as well as abortion. 
The initial draft of the regulations included a definition of abortion
that was so broad that it included some forms of contraception, such
as birth control pills and IUDs.  After a huge public outcry, the
HHS removed that definition, but by raising the issue in the first place,
the department left the door open for healthcare providers to use the
sweeping definition to justify the denial of contraception. Before no
institution would have objected to giving a woman birth control pills
and argued that it is the same as performing an abortion.  

Two, under the proposed regulation,
HHS would expand the pool of medical professionals who can deny a woman
services. Not only doctors, but virtually anyone involved–like receptionists,
health insurance claim adjustors, and janitors–would be able to refuse
to perform tasks based on religious or moral beliefs.  For example,
a receptionist may be allowed to decline to make an appointment for
a woman who needs a prescription for birth control pills or a nurse
may choose not to sterilize equipment used in an abortion.  Such
refusals will not only disrupt services in health facilities, but could
possibly result in a woman not receiving reproductive care at all.   

Finally, the proposed regulation
would allow healthcare professionals to withhold basic information,
including counseling and referrals. This means that healthcare providers
could not only refuse to give information about abortion and contraception
to a woman, but also to refer her to someone who can explain to her
all of her options.  

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Low-income women and women
of color already face significant hurdles in accessing healthcare including
discrimination, inflexible work schedules, and inadequate childcare
and transportation.  If they are turned away from healthcare providers,
they may not have the resources to locate another physician or healthcare
facility and make arrangements for a second time.  

HHS was required by law to
include a cost-benefit analysis with the proposed regulation, but its
analysis was cursory and inadequate, ignoring the costs to individual
patients and the severe impact the regulation will have on vulnerable
groups.  The department did not even point to a single instance
where current laws have failed to protect healthcare providers’ religious
liberty and yet, that is the problem the new rules are purportedly designed
to solve. The supposed benefits, such as diversity in the workforce
and increasing awareness of protections for health care providers, are
not supported by any evidence.  There’s no scientific, statistical
or empirical data showing that the supposed benefits are a likely to
occur if the regulation is adopted.  

There is already an imbalance
between rights of conscience and a woman’s right to reproductive health
care in this country, and the regulations will purposefully tip the
balance further away from a woman’s rights.  Implementation of
these regulations will only exacerbate the difficulties low income women
face in getting healthcare and allow the denial of vital health information
and services to those who need it most.

The Center for Reproductive
Rights, the National Asian Pacific American Women’s Forum, and the
National Latina Institute for Reproductive Health believe that the regulations
should be rejected outright, and are submitting joint comments to the
HHS, focusing primarily on the impact on low-income women and women
of color.  You can read these comments here.  

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.

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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.

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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.”

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