“You Have Failed Entirely”, Says Planned Parenthood and ACLU

Amie Newman

The Bush administration promised not to issue any more regulations after June 1, 2008. In August 2008, the administration released proposed regulations that would allow providers to redefine abortion as contraception. While 200,000 Americans registered their thoughts during the 30-day commenting period, the clock is ticking. Now Planned Parenthood, the ACLU and the Center for Reproductive Rights says it's enough.

Planned Parenthood Federation of America with the ACLU and the Center for Reproductive Rights sent a letter today to the Office of Information and Regulatory Affairs criticizing them for failing "to explain how the Provider Conscience regulation meets the “extraordinary circumstances” standard laid out in the Bolton Memorandum."

As Rewire has extensively reported on over the last several months, the Bush administration felt it necessary to quickly release proposed regulations, under the Department of Health and Human Services (HHS), that would have disastrous effects on health care consumers, in particular women seeking contraception, by elevating the opinions of health care providers above critical access to health care. These proposed regulations allow for health care providers and any staff members in federally funded health care facilities, to define contraception as abortion, and to refuse to provide women contraception – for any reason – if it conflicts with their personal belief system.

“It’s unconscionable that the Bush administration, while promising a smooth transition, would take a final opportunity to politicize women’s health,” said PPFA President Cecile Richards. “People want government to find commonsense solutions to problems, not to create them by allowing health care providers to withhold critical information and services at a time when affordable health care is hard enough to come by.”

Unfortunately for the Bush administration, though they thought these proposed regulations would quietly become embedded in HHS policy, health care advocates, health care providers, women’s advocates, health care consumers and others took notice. In only a few weeks, more than 200,000 Americans registered their comments in the 30-day public commenting period – most of them vehemently opposed to such a regulation. 

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"Ultimately, low-income women, who already face tremendous obstacles getting health care and rely more on public programs, will be hit the hardest by this regulation," said Nancy Northup, president of the Center for Reproductive Rights. "This new rule violates a woman’s rights and needs as a patient and, in the end, only erects new barriers to her access to reproductive health care."

It was not looking good for Bush’s eleventh hour attempt to curtail women’s access to reproductive health care in a final move. But there’s more. 

According to a directive from the White House itself (the Bolton memorandum), issued in May 2008, all proposed regulations were to be submitted by June 1, 2008 in order to be considered for passage, unless there were "extraordinary circumstances" at work. The HHS regulations were not submitted until August 2008, thus causing advocates and others to assume the only way they could be considered was for their content to address said "extraordinary circumstances."

Unfortunately, as of today, there have been no explanations to the American public as to why these proposed regulations, seeking to reprioritize provider opinions and belief systems as more important than patient care, address critical circumstances. In order to seek answers, Planned Parenthood, the ACLU and the Center for Reproductive Rights have sent a letter (below) to the Office of Information and Regulatory Affairs.

You can take action here

 

November 17, 2008

Hon. Susan E. Dudley
Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget

725 17th Street, NW                                                                                

Washington, DC 20503

Fax:      (202) 395-3047
Email:   OIRA-submissions@omb.eop.gov

Dear Ms. Dudley:

The undersigned groups committed to women’s health are writing to urge OIRA to take its responsibilities seriously with respect to the Department of Health and Human Services’ (HHS) “Provider Conscience Regulation” (RIN 0991-AB48, 73 Fed. Reg. 50274 (Aug. 26, 2008) (to be codified at 45 C.F.R. pt. 88).

As you are well-aware, on May 9, 2008, White House Chief of Staff Joshua Bolten issued a directive for agencies to submit all proposed regulations they wish to finalize before the end of the Bush Administration by June 1, 2008, except in “extraordinary circumstances.”  Mr. Bolten’s directive explicitly sought to “resist the historical tendency of administrations to increase regulatory activity in their final months.”  The purpose of the deadline was to ensure that agencies did not engage in ill-conceived rulemakings prior to a change of administration.

Yet this is exactly what HHS is doing with the Provider Conscience regulation.  These regulations, which relate to statutes that have been on the books for years (in one case, since the 1970’s) were not proposed until late August 2008.  Moreover, HHS has put the rule on the fast track with a shortened 30-day public comment period and no public hearing.

This unjustified last minute regulatory rush, in clear contravention of the Bolten directive, was drawn to your attention by the Institute for Policy Integrity (IPI).  In its letter dated September 5, 2008, IPI requested that you enforce Mr. Bolten’s directive by either explaining the “extraordinary circumstances” that require the issuance the Provider Conscience regulation, or preventing the promulgation of this eleventh-hour regulation.  Your response to that request, dated October 9, 2008, suggested that the Provider Conscience regulation is a “circumstance[] in which it would be appropriate for individual regulations to proceed without regard to deadlines if approved by OIRA, working closely with the heads of the President’s policy councils.”

You have failed entirely to explain how the Provider Conscience regulation meets the “extraordinary circumstances” standard laid out in the Bolton Memorandum.  If OIRA believes that extraordinary circumstances exist for this proposed regulation and plans to allow HHS to proceed with finalizing these regulations before the end of the Administration, we believe that OIRA owes the American public a clear explanation of the extraordinary circumstances that justify allowing this to happen.  We request that OIRA provide that explanation as soon as possible.

As demonstrated in the thousands of comments that HHS received in response to the proposed rule, this ill-conceived, last-minute regulation could have a dramatic negative effect on the delivery of basic healthcare to women.  OIRA should take its responsibilities seriously and not allow HHS to engage in ill-conceived, last-minute rulemaking – under the endorsement of OIRA.

Furthermore, we request that OIRA and OMB require HHS to undertake a more formal accounting of the costs and benefits of the proposed Provider Conscience regulation.  As IPI’s September 5 letter explained, the analysis performed by HHS was cursory and wholly inadequate.  That cost-benefit analysis does not even attempt to address the real cost of the regulation for women, especially low-income women, whose access to basic reproductive health services, including contraception, as well as information about those services, may be limited as a result of the regulation.

Commentary Politics

It’s Not Just Trump: The Right Wing’s Increasing Reliance on Violence and Intimidation as a Path to Power

Jodi Jacobson

Republicans have tried to pass Trump's most recent comments off as a joke because to accept the reality of that rhetoric would mean going to the core of their entire party platform and their strategies. The GOP would have to come to terms with the toll its power plays are taking on the country writ large.

This week, GOP presidential nominee Donald Trump stated that, if Hillary Clinton were elected and able to nominate justices to the Supreme Court, “Second Amendment people” might be able to do something about it. After blaming the media for “being dishonest” in reporting his statement, the Trump campaign has since tried to pass the comment off as a joke. However characterized, Trump’s statement is not only part of his own election strategy, but also a strategy that has become synonymous with those of candidates, legislators, and groups affiliated with the positions of the GOP.

To me, the phrase “Second Amendment people” translates to those reflexively opposed to any regulation of gun sales and ownership and who feel they need guns to arm themselves against the government. I’m not alone: The comment was widely perceived as an implicit threat of violence against the Democratic presidential nominee. Yet, GOP party leaders have failed to condemn his comment, with House Speaker Paul Ryan (R-WI) agreeing with the Trump campaign that it was “a joke gone bad.”

Republicans have tried to pass it off as a joke because to accept the reality of their rhetoric would mean going to the core of their entire party platform and their strategies. The GOP would have to come to terms with the toll its power plays are taking on the country writ large. The rhetoric is part of a longer and increasingly dangerous effort by the GOP, aided by corporate-funded right-wing organizations and talk show hosts, to de-legitimize the federal government, undermine confidence in our voting system, play on the fears held by a segment of the population about tyranny and the loss of liberty, and intimidate people Republican leaders see as political enemies.

Ironically, while GOP candidates and leaders decry the random violence of terrorist groups like Daeshitself an outgrowth of desperate circumstances, failed states, and a perceived or real loss of powerthey are perpetuating the idea of loss and desperation in the United States and inciting others to random violence against political opponents.

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Trump’s “Second Amendment” comment came after a week of efforts by the Trump campaign to de-legitimize the 2016 presidential election well before a single vote has been cast. On Monday, August 1, after polls showed Trump losing ground, he asserted in an Ohio campaign speech that “I’m afraid the election’s gonna be rigged, I have to be honest.”

Manufactured claims of widespread voter fraud—a problem that does not exist, as several analyses have shown—have nonetheless been repeatedly pushed by the GOP since the 2008 election. Using these disproven claims as support, GOP legislatures in 20 states have passed new voter restrictions since 2010, and still the GOP claims elections are suspect, stoking the fears of average voters seeking easy answers to complex problems and feeding the paranoia of separatist and white nationalist groups. Taking up arms against an illegitimate government is, after all, exactly what “Second Amendment remedies” are for.

Several days before Trump’s Ohio speech, Trump adviser Roger Stone suggested that the result of the election might be “illegitimate,” leading to “widespread civil disobedience” and a “bloodbath,” a term I personally find chilling.

Well before these comments were made, there was the hate-fest otherwise known as the Republican National Convention (RNC), during which both speakers and supporters variously called for Clinton to be imprisoned or shot, and during which New Jersey Gov. Chris Christie, a man not widely known for his high ethical standards or sense of accountability, led a mock trial of Hillary Clinton to chants from the crowd of “lock her up.” And that was the tame part.

The number of times Trump has called for or supported violence at his rallies is too long to catalogue here. His speeches are rife with threats to punch opponents; after the Democratic National Convention, he threatened to hit speakers who critiqued his policies “so hard their heads would spin.” He also famously promised to pay the legal fees of anyone who hurt protesters at his rallies and defended former campaign manager Corey Lewandowski after allegations surfaced that Lewandowski had assaulted a female Breitbart reporter.

A recent New York Times video compiled over a year of reporting at Trump rallies revealed the degree to which many of Trump’s supporters unapologetically express violence and hatred—for women, immigrants, and people of color. And Trump eschews any responsibility for what has transpired, repeatedly claiming he does not condone violence—his own rhetoric, that of his associates, and other evidence notwithstanding.

Still, to focus only on Trump is to ignore a broader and deeper acceptance, even encouragement of, incitement to violence by the GOP that began long before the 2016 campaign.

In 2008, in what may appear to be a now forgotten but eerily prescient peek at the 2016 RNC, then-GOP presidential nominee Sen. John McCain (R-AZ), and his running mate, former Alaska Gov. Sarah Palin, used race-baiting and hints at violence to gin up their crowds. First, Palin accused Obama of “palling around with terrorists,” a claim that became part of her stump speech. As a result, Frank Rich then wrote in the New York Times:

At McCain-Palin rallies, the raucous and insistent cries of “Treason!” and “Terrorist!” and “Kill him!” and “Off with his head!” as well as the uninhibited slinging of racial epithets, are actually something new in a campaign that has seen almost every conceivable twist. They are alarms. Doing nothing is not an option.

Nothing was in fact done. No price was paid by GOP candidates encouraging this kind of behavior.

In 2009, during congressional debates on the Affordable Care Act, opponents of the health-care law, who’d been fed a steady diet of misleading and sensationalist information, were encouraged by conservative groups like FreedomWorks and Right Principles, as well as talk show hosts such as Sean Hannity, to disrupt town hall meetings on the legislation held throughout the country. Protesters turned up at some town hall meetings armed with rifles with the apparent intention of intimidating those who, in supporting health reform, disagreed with them. In some cases, what began as nasty verbal attacks turned violent. As the New York Times then reported: “[M]embers of Congress have been shouted down, hanged in effigy and taunted by crowds. In several cities, noisy demonstrations have led to fistfights, arrests and hospitalizations.”

In 2010, as first reported by the Washington Post’s Greg Sargent, Tea Party candidate Sharron Angle, in an unsuccessful bid to unseat Senate Majority Leader Harry Reid (D-NV), suggested that armed insurrection would be the answer if “this Congress keeps going the way it is.” In response to a request for clarification by the host of the radio show on which she made her comments, Angle said:

You know, our Founding Fathers, they put that Second Amendment in there for a good reason and that was for the people to protect themselves against a tyrannical government. And in fact Thomas Jefferson said it’s good for a country to have a revolution every 20 years.

I hope that’s not where we’re going, but, you know, if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies and saying my goodness what can we do to turn this country around? I’ll tell you the first thing we need to do is take Harry Reid out.

Also in 2010, Palin, by then a failed vice-presidential candidate, created a map “targeting” congressional Democrats up for re-election, complete with crosshairs. Palin announced the map to her supporters with this exhortation: “Don’t retreat. Instead, reload!”

One of the congresspeople on that map was Arizona Democrat Gabby Giffords, who in the 2010 Congressional race was challenged by Jesse Kelly, a Palin-backed Tea Party candidate. Kelly’s campaign described an event this way:

Get on Target for Victory in November. Help remove Gabrielle Giffords from office. Shoot a fully automatic M16 with Jesse Kelly.

Someone took this literally. In January 2011, Jared Lee Loughner went on a shooting rampage in a Tuscon grocery store at which Giffords was meeting with constituents. Loughner killed six people and injured 13 others, including Giffords who, as a result of permanent disability resulting from the shooting, resigned from Congress. Investigators later found that Loughner had for months become obsessed with government conspiracy theories such as those spread by GOP and Tea Party candidates.

These events didn’t stop GOP candidates from fear-mongering and suggesting “remedies.”  To the contrary, the goading continued. As the Huffington Post‘s Sam Stein wrote in 2011:

Florida Senate candidate Mike McCalister, who is running against incumbent Sen. Bill Nelson (D-Fla.), offered a variation of the much-lampooned line during a speech before the Palms West Republican Club earlier this week.

“I get asked sometimes where do I stand on the Second and 10th Amendment, and I have a little saying,” he declared. “We need a sign at every harbor, every airport and every road entering our state: ‘You’re entering a 10th Amendment-owned and -operated state, and justice will be served with the Second Amendment.’” [Emphasis added.]

These kinds of threats by the GOP against other legislators and even the president have gone unpunished by the leadership of the party. Not a word has come from either House Speaker Paul Ryan or Senate Majority Leader Mitch McConnell decrying these statements, and the hyperbole and threats have only continued. Recently, for example, former Illinois GOP Congressman Joe Walsh tweeted and then deleted this threat to the president after the killing of five police officers in Dallas, Texas:

“3 Dallas cops killed, 7 wounded,” former congressman Joe Walsh, an Illinois Republican, wrote just before midnight in a tweet that is no longer on his profile. “This is now war. Watch out Obama. Watch out black lives matter punks. Real America is coming after you.”
Even after the outcry over his recent remarks, Trump has escalated the rhetoric against both President Obama and against Clinton, calling them the “founders of ISIS.” And again no word from the GOP leadership.
This rhetoric is part of a pattern used by the right wing within and outside elections. Anti-choice groups, for example, consistently misrepresent reproductive health care writ large, and abortion specifically. They “target” providers with public lists of names, addresses, and other personal information. They lie, intimidate, and make efforts to both vilify and stigmatize doctors. When this leads to violence, as David Cohen wrote in Rolling Stone this week, the anti-choice groups—and their GOP supporters—shrug off any responsibility.
Some gun rights groups also use this tactic of intimidation and targeting to silence critique. In 2011, for example, 40 men armed with semi-automatic weapons and other guns surrounded a restaurant in Arlington, Texas, in which a mothers’ group had gathered to discuss gun regulations. “Second Amendment people” have spit upon women arguing for gun regulation and threatened them with rape. In one case, a member of these groups waited in the dark at the home of an advocate and then sought to intimidate her as she approached in her wheelchair.
The growing resort to violence and intimidation in our country is a product of an environment in which leading politicians not only look the other way as their constituents and affiliated groups use such tactics to press a political point, but in which the leaders themselves are complicit.
These are dangerous games being played by a major political party in its own quest for power. Whether or not Donald Trump is the most recent and most bombastic evidence of what has become of the GOP, it is the leadership and the elected officials of the party who are condoning and perpetuating an environment in which insinuations of violence will increasingly lead to acts of violence. The more that the right uses and suggests violence as a method of capturing, consolidating, and holding power, the more they become like the very terrorists they claim to be against.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

071midyearstateabortionstable

In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

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