Overwhelming Opposition Floods HHS Refusal Clause Proposal: 200,000+

Scott Swenson

HHS is characterizing the number of comments as "higher than average" and Rewire has obtained estimates from several organizations suggesting at 200,000 comments are in opposition. Don't forget the 325,000 petitions turned in before the rule was issued, as Americans attempt to prevent ideology from trumping medical science.

With public commenting now closed on the proposal allowing trained medical staff to deny health care service to patients in need, one thing is certain: many Americans are not happy with efforts by President Bush and Secretary Michael Leavitt to put ideology over medical science and deny patient conscience rights.

Approximately 200,000 comments have been generated by organizations opposing the proposed rule, based on an initial review of advocacy organizations by Rewire. These organizations worked to generate public comments to the Bush Department of Health and Human Services.

The number of comments received are "higher than average" according to Kevin Schweers, a spokesperson for HHS.  "A significant number on both sides were duplicative form letters" Schweers said, but could not provide specific numbers at this time. "We will take all the comments received during the notice and comment period into consideration and then determine next steps," Schweers said.

Cecile Richards, president of Planned Parenthood said, “After
eight years of disastrous health care policies, it is time for this
administration to listen to the American people and change the course
of this regulation that unforgivably ignores a patient’s right to
receive the critical health care services and information she deserves.”

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By law, HHS is required to reply substantively to each of the comments and address the concerns raised. Detailed legal analysis of the proposed ruling, raising significant questions into potential violations of civil rights laws, increased federal government bureaucracy, concerns about patient rights, and many other issues were raised in lengthy letters submitted by many major medical and legal professional associations. Thirteen state attorneys general sent letters, Senators Murray and Clinton wrote a letter (PDF), and dozens of Members of Congress signed onto letters in the House and Senate that raised significant issues (PDF). Dozens of advocacy organizations also submitted lengthy letters raising numerous concerns not only about domestic health care provision, but also how the ruling would impact US global policy and grantees that work abroad.

Even though White House Chief of Staff Josh Bolten urged agencies not to engage in last minute rule making in the waning days of the Bush Administration, ideologues at HHS proceeded and now must respond to the comments substantively before issuing a final ruling, or deciding not to given the overwhelming opposition.  If they proceed with a ruling, it is expected to be challenged in court.

The bulk of the 200,000 comments in opposition came from Planned Parenthood which generated more than 90,000. NARAL Pro-Choice America, the American Civil Liberties Union, the American Association of University Women, The National Partnership for Women and Families, the National Family Planning and Reproductive Health Association, the International Women’s Health Coalition, the National Council of Jewish Women, the Religious Coalition for Reproductive Choice, and the National Women’s Law Center were among the organizations opposing the proposed rule surveyed by Rewire.

Prior to the issuance of the proposed rules, more than 325,000 Americans signed a petition urging Secretary Michael Leavitt not to go forward with the proposal.  Those signatures were generated by MoveOn.org and Planned Parenthood, so it is possible that there is some overlap, but because so many different organizations were involved in generating public comments, it is also likely that many of the 200,000  received during the comment period are from people other than those who signed the original petition, thus moving the number of people officially opposing this effort significantly higher.

As Rachel Walden of Our Bodies, Our Blog has been tracking, HHS did not appear to welcome the public comments that came, first on Secretary Michael Leavitt’s blog, then during the public commenting phase as they kept changing the URLs making it difficult to keep track of information.

See all of Rewire’s coverage of the HHS Refusal Clause

News Law and Policy

Texas’ ‘Fetal Remains’ Rule Could Draw Legal Action

Teddy Wilson

The Center for Reproductive Rights cited statements made by Gov. Greg Abbott (R) soliciting campaign contributions to support his efforts to “establish higher standards that reflect our respect for the sanctity of life.”

Proposed rules requiring cremation or burial of fetal remains may result in “costly litigation for Texas—litigation state taxpayers can scarcely afford,” the Center for Reproductive Rights (CRR) said in comments submitted to the Texas Department of State Health Services (DSHS).

Stephanie Toti, senior counsel at CRR, said in a statement that if Texas lawmakers continue to interfere with reproductive health care, the organization will take legal action. 

The DSHS quietly proposed new rules that would prohibit abortion providers from disposing of fetal remains in sanitary landfills, and would require that fetal remains be buried or cremated. 

The rules were published July 1 without notice or announcement in the Texas Register.

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The new regulations would apply to all fetal remains regardless of the period of gestation. Under the proposed rules, any other tissue, “including placenta, umbilical cord and gestational sac,” could still be disposed of through “grinding and discharging to a sanitary sewer system; incineration followed by deposition of the residue in a sanitary landfill.”

Health commission spokesperson Bryan Black told the Texas Tribune that the rules were developed to ensure high sanitation standards. “The Health and Human Services Commission developed new rules to ensure Texas law maintains the highest standards of human dignity,” Black said. 

The rules would require approval from the Republican-held state legislature.

Gov. Greg Abbott’s (R) spokesperson Ciara Matthews said in a statement that the governor is hopeful the legislature will approve the rules. “Governor Abbott believes human and fetal remains should not be treated like medical waste, and the proposed rule changes affirms the value and dignity of all life,” Matthews aid.

CRR cited statements made by Abbott in a fundraising email in which the governor solicited campaign contributions to support his efforts to “establish higher standards that reflect our respect for the sanctity of life.”  

CRR contends that Abbott’s statements undercut “the state’s claims that these regulations have anything to do with protecting women’s health and safety.”

Blake Rocap, legislative counsel for NARAL Pro-Choice Texas, told Public News Service that the regulations will increase the cost of abortion care and the amount of people involved in the process.

“The rule creates ambiguity and involves other licensed professionals, like funeral service directors and cemeteries that are not involved in medical care, and shouldn’t be involved, and don’t want to be involved in it,” Rocap said.

Carol Everett, an anti-choice activist and supporter of the proposed rules, made dubious claims that methods of disposal of fetal remains could contaminate the water supply.

“There’s several health concerns. What if the woman had HIV? What if she had a sexually transmitted disease? What if those germs went through and got into our water supply,” Everett told the Austin Fox News affiliate

The transmission of HIV or other sexually transmitted infections through water systems or similar means is not supported by any scientific evidence.

The new rules could have unintended consequences for medication abortion care. The proposed rules state that “products of spontaneous or induced human abortion” are subject to the law “regardless of the period of gestation.”

Under Food and Drug Administration regulations, the second part of the medication abortion regime can be taken at home. The new Texas rules could effectively ban medication abortion because an embryo miscarried at home through medication abortion cannot in practice be buried or cremated.

The Texas Alliance for Life supports the new GOP-backed rules. However, Texas Alliance for Life executive director Joe Pojman told Rewire that he was unsure what effect the new rules might have on medication abortions. “We’re going to have to study that further,” Pojman said.

Rocap told Public News Service that proposed rules are part of a “pattern of overreach” by Texas lawmakers targeting abortion providers. “This rule was proposed in the dark of night without any openness, which lets you know that they know they’re doing it the wrong way.”  

DSHS has announced a public hearing on the proposed regulations Thursday at 9 a.m. central time.  

Analysis Politics

Donald Trump and Mike Pence: The Anti-Immigrant Ticket

Tina Vasquez

“My greatest fear is that this ticket doesn’t seem to realize immigrants are actually an incredible resource that fuels our country," Wendy Feliz of the American Immigration Council told Rewire.

On Friday, Republican presidential candidate Donald Trump announced Indiana Gov. Mike Pence as his running mate, giving legitimacy to concerns a Trump presidency would be anti-choice and decimate LGBTQ rights. As Rewire reported last week, Pence has voted against nondiscrimination efforts, signed a so-called religious freedom bill, opposed marriage equality, and attemptednumerous times—to defund Planned Parenthood, something Trump has promised to do if elected president.

But the two Republicans also have something else in common: They are brazenly anti-immigrant.

Despite a misleading article from the Daily Beast asserting that Pence has had a “love affair with immigration reform” and has “spent his political career decrying anti-immigrant rhetoric,” the governor’s record on immigration tells a different story.

Let’s take a look at Trump’s “xenophobic” and “racist” campaign thus far, and how closely Pence’s voting aligns with that position.

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Donald Trump

For months it seemed, Donald Trump’s talking points in the media rarely drifted away from anti-immigrant rhetoric. During his kickoff speech, he referred to Mexican immigrants as “rapists” and “killers” and in the months since, has promised to build a 2,000-mile-long wall along the United States-Mexico border to keep “illegals” out, a wall the billionaire has promised that Mexico will pay for.

Despite being called “racist” by members of his own party, Trump’s immigration plan is largely consistent with what many Republicans have called for: a larger border wall, increasing the number of Immigration and Customs Enforcement (ICE) officers, requiring all U.S. companies to use E-Verify to check the immigration status of employees, increasing the use of detention for those who are undocumented and currently residing in the United States, and ending “birthright citizenship,” which would mean the U.S.-born children of undocumented parents would be denied citizenship.

Again, Trump’s proposed immigration policies align with the Republican Party’s, but it is the way that he routinely spreads false, damaging information about undocumented immigrants that is worrisome. Trump has repeatedly said that economically, undocumented immigrants are “killing us by “taking our jobs, taking our manufacturing jobs, taking our money.” 

Market Watch, a publication focusing on financial news, reported that this falsehood is something that a bulk of Trump supporters believe; two-thirds of Trump supporters surveyed in the primaries said they feel immigration is a burden on our country “because ‘they take our jobs, housing and health care.'” This, despite research that says deporting the 11 million undocumented immigrants who currently call the United States home would result in a “massive economic hit” for Trump’s home state of New York, which receives $793 million in tax revenue from undocumented immigrants. A recent report by the Institute on Taxation and Economic Policy also found that at the state and local level, undocumented immigrants nationwide collectively pay an estimated $11.6 billion each year in taxes.

Trump has also been accused by Muslim Americans and members of the media of engaging in “reckless, dangerous Islamophobia” at every opportunity, using terrorist attacks to call for a ban on all Muslim immigration, while also using terrorism in a self-aggrandizing manner. In a statement released after the Pulse nightclub shooting, Trump said, “I said this was going to happen.”

These dangerous assertions that all U.S.-based Muslims are secretly harboring terrorists or that undocumented immigrants are killing “thousands of peoplea narrative he continued to push at the Republican National Convention by having the families of three Americans killed by undocumented people speak—can be deadly and inspire hatred and violence. This was made all the more clearer when in August 2015 two white brothers cited Trump when they urinated on and beat a homeless Latino man. According to Huffington Post, the men “alegedly [sic] told police they targeted the man because of his ethnicity and added, ‘Donald Trump was right, all these illegals need to be deported.’” Trump’s response? He said that his supporters are simply “passionate” people who want America “to be great again.”

Mike Pence

Wendy Feliz, a spokesperson with the American Immigration Council, succinctly summarized Pence’s immigration approach to Rewire, saying on Monday that he “basically falls into a camp of being more restrictive on immigration, someone who looks for more punitive ways to punish immigrants, rather than looking for the positive ways our country can benefit from immigrants.”

After Trump’s announcement that Pence would be his running mate, Immigration Impact, a project of the American Immigration Council, outlined what voters should know about Pence’s immigration record:

Pence’s record shows he used his time in Congress and as the Governor of Indiana to pursue extreme and punitive immigration policies earning him a 100 percent approval rating by the anti-immigration group, Federation for American Immigration Reform.

In 2004 when Pence was a senator, he voted for the “Undocumented Alien Emergency Medical Assistance Amendments.” The bill failed, but it would have required hospitals to gather and report information on undocumented patients before hospitals could be reimbursed for treating them. Even worse, the bill wouldn’t have required hospitals to provide care to undocumented patients if they could be deported to their country of origin without a “significant chance” of their condition getting worse.

Though it’s true that in 2006 Pence championed comprehensive immigration reform, as the Daily Beast reported, the reform came with two caveats: a tightening of border security and undocumented immigrants would have to “self-deport” and come back as guest workers. While calling for undocumented immigrants to self-deport may seem like the more egregious demand, it’s important to contextualize Pence’s call for an increase in border security.

This tactic of calling for more Border Patrol agents is commonly used by politicians to pacify those opposed to any form of immigration reform. President Obama, who has utilized more border security than any other president, announced deferred action for the undocumented in June 2012, while also promising to increase border security. But in 2006 when Pence was calling for an increase in border security, the border enforcement policy known as “Operation Gatekeeper” was still in full swing. According to the American Civil Liberties Union (ACLU), Operation Gatekeeper “concentrated border agents and resources along populated areas, intentionally forcing undocumented immigrants to extreme environments and natural barriers that the government anticipated would increase the likelihood of injury and death.” Pence called for more of this, although the undocumented population expanded significantly even when border enforcement resources escalated. The long-term results, the ACLU reported, were that migrants’ reliance on smugglers to transport them increased and migrant deaths multiplied.

There are more direct ways Pence has illustrated a xenophobic agenda, including co-sponsoring a congressional bill that would have made English the official language of the United States and as governor, blocking Syrian refugees en route to Indiana, saying he would not accept any more Syrian refugees out of fear they were “terrorists.” The governor also added Indiana to the Texas lawsuit challenging expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). And he praised the inaction by the Supreme Court last month to expand DACA and DAPA, which leaves millions of undocumented immigrants living in fear of deportation.

According to the Office of Refugee Resettlement, “when a child who is not accompanied by a parent or legal guardian is apprehended by immigration authorities, the child is transferred to the care and custody of the Office of Refugee Resettlement (ORR). Federal law requires that ORR feed, shelter, and provide medical care for unaccompanied children until it is able to release them to safe settings with sponsors (usually family members), while they await immigration proceedings.”

The ORR added that these sponsors “live in many states,” including Indiana, which received 245 unaccompanied minors between January and July 2014. Pence was reportedly unaware that unaccompanied minors were being placed in his state by the federal government, something he said he was made aware of by media reports. These are asylum seeking children, often girls under the age of 10, escaping violence in their countries of origin who arrive at the United States-Mexico border without an adult. Many, including advocacy organizations and the Obama administration, have contended that the circumstances surrounding unaccompanied minors is not simply an immigration issue, but a humanitarian crisis. Not Pence. In a letter to President Obama, the Indiana governor wrote:

While we feel deep compassion for these children, our country must secure its borders and provide for a legal and orderly immigration process …. Failure to expedite the return of unaccompanied children thwarts the rule of law and will only continue to send a distorted message that illegally crossing into America is without consequence.

In the four days since Pence was named Trump’s running mate, he’s also taken a much harsher stance on Muslim immigration. Back in December when Trump called for a “total and complete shutdown of Muslims entering the United States,” Pence tweeted that banning Muslims from entering the United States was “offensive and unconstitutional.” However, on Friday when Pence was officially named Trump’s VP pick, he told Fox News’ Sean Hannity, “I am very supportive of Donald Trump’s call to temporarily suspend immigration from countries where terrorist influence and impact represents a threat to the United States.”

Wendy Feliz of the American Immigration Council told Rewire that while Pence’s rhetoric may not be as inflammatory as Trump’s, it’s important to look at his record in relation to Trump’s to get a better understanding of what the Republican ticket intends to focus on moving into a possible presidency. Immigration, she said, is one of the most pressing issues of our time and has become a primary focus of the election.

“In a few days, we’ll have a better sense of the particular policies the Republican ticket will be pursuing on immigration. It all appears to point to more of the same, which is punitive, the punishing of immigrants,” Feliz said. “My greatest fear is that this ticket doesn’t seem to realize immigrants are actually an incredible resource that fuels our country. I don’t think Trump and Pence is a ticket that values that. An administration that doesn’t value immigrants, that doesn’t value what’s fueled our country for the past several hundred years, hurts all of us. Not just immigrants themselves, but every single American.”

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