Democrats Eye Overturning Bush’s Provider Conscience Expansion

Mike Lillis

Democratic policymakers vowing to overturn a controversial new Bush administration rule that could limit women’s reproductive health options have several tools at their disposal to do so -– but party leaders aren’t revealing which they favor.

Democratic policymakers vowing to overturn a controversial new Bush administration rule that could limit women’s reproductive health options have several tools at their disposal to do so -– but party leaders aren’t revealing which they favor.

The new regulation — unveiled
by the Dept. of Health and Human Services (HHS) earlier this month —
expands the rights of some healthcare workers to withhold treatments
and counseling services, possibly including contraception, based on
their moral or religious sentiments. The White House argues that the
change — known as the “right of conscience” rule — is necessary to
clarify similar worker protections surrounding abortion and
sterilization procedures that already exist as law. But many Democrats
have joined women’s health advocates, healthcare providers and some
state officials in blasting the rule as a sweeping expansion of
existing statute that threatens women’s access to reproductive health
services.

“Congress,” House Speaker Nancy Pelosi (D-Cal.) said in a terse Dec.
18 statement, “will work with President-elect [Barack] Obama to reverse
this rule.”

But party leaders aren’t saying how they’ll try to do it.
Representing one option, Sens. Hillary Clinton (N.Y.) and Patty Murray
(Wash.) introduced legislation last month that would simply prevent HHS from implementing the new rule. Reps. Diana DeGette (D-Col.) and Louis Slaughter (D-N.Y.) have vowed to introduce similar legislation in the House next year.

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“The Bush Administration continues to pursue its extreme ideology
over sound public health policies,” DeGette said in a statement earlier
this month.

Congress could also simply refuse to fund the new rule, which is estimated to cost $44 million.

Or they could nix it altogether by invoking an obscure law
— known as the Congressional Review Act (CRA) — which allows Congress
to reject White House regulations passed within 60 legislative days of
Congress’s adjournment. The law would leave Democrats several months
next year to kill the rule.

An advantage of the CRA route is that the vote would be exempt from
the dreaded Senate filibuster, which has snuffed dozens of Democratic
bills over the past two years. The disadvantage is that the measure
would have to stand alone and couldn’t be buried in another bill as a
rider.

Jessica Arons, director of the Center for American Progress’ Women’s
Health and Rights Program, said that invoking the CRA is not as easy as
it sounds, particularly when the issue relates to abortion.
Conservative-leaning Democrats might not support it, she said, and
party leaders might not have the political will to bring it up to begin
with.

The Congressional fight could shift to the White House. The HHS
under Obama could simply propose a new regulation. Obama has already
criticized the rule, issuing a statement in August saying the change “complicates, rather than clarifies the law.”

“It raises troubling issues about access to basic health care for
women, particularly access to contraceptives,” Obama said. “We need to
restore integrity to our public health programs, not create backdoor
efforts to weaken them.”

Yet the issue could be a thorny one for Obama, who ran on a platform
of reaching across the aisle to Republicans. Despite his early
opposition to the rule, he might not want to make an abortion-related
issue one of his first battles, if only because it might threaten that
message of bipartisan healing.

Health care advocates point out that crafting a new White House
regulation would also be time-consuming, calling for periods of public
comment that could extend the process to six months or longer. The
legislative options, advocates say, could happen much more quickly.

Spokespersons in the offices of Pelosi and Senate Majority Leader
Harry Reid (D-Nev.) said that discussions over how to reverse the
regulation are underway, but no final decision has been made.

Plenty of laws on the books — both federal and state — already
protect health care workers from having to participate in abortion and
sterilization procedures based on moral or religious objections. The
new rule would expand those laws by forcing any healthcare entity
receiving federal dollars to attest that employees aren’t forced to
assist in practices and procedures they deem to be “morally coercive or
discriminatory.”

“A trend that isolates and excludes some among various religious,
cultural, and ethnic groups from participating in the delivery of
health care is especially troublesome,” the rule states, “when
considering current and anticipated shortages of health care
professionals in many medical disciplines and regions of the country.”

Yet the rule doesn’t specifically define which practices and
policies would be covered, leaving many lawmakers and women’s health
advocates to fear that contraception and other family-planning services
would apply. Additionally, the rule will apply to anyone who “assists
in the performance of a procedure,” a group defined broadly as anyone
who participates in “any activity with a reasonable connection to the
objectionable procedure, including referrals, training, and other
arrangements for the procedure, health service, or research activity.”

“It goes well beyond doctors and nurses to include almost anyone who
works in the health care sector,” said Arons of the Center for American
Progress. “It allows people to withhold relevant medical information
and not inform patients about all their options.”

HHS estimates the new regulation will affect roughly 572,000
health-related facilities, including hospitals, pharmacies,
laboratories and medical schools. The rule was published in the Federal
Register Dec. 18 and will take effect 30 days afterwards — just 48
hours before Obama takes office.

HHS did not return calls for comment.

There is also worry that the new rule will allow healthcare workers
to take jobs in certain facilities – a family planning clinic, for
example – for the sole purpose of withholding certain information,
counseling services or treatments they find objectionable. Tait Sye, a
spokesman for the Planned Parenthood Federation of America, pointed out
that, under the new rule, it would be difficult to identify such a
saboteur.

“Your boss doesn’t know,” Sye said. “The patient doesn’t know. The
hospital doesn’t know … No one knows. And it creates an enormous
potential for chaos.”

Meanwhile, states aren’t waiting around for Washington lawmakers to
act. In Connecticut, for example, state Attorney General Richard
Blumenthal is considering legal action to prevent the new regulation
from taking hold. Blumenthal says he’s worried that the change could
prevent victims of rape from receiving emergency contraception.

“We went through a very lengthy, painstaking, contentious process to
reach our statute in Connecticut which has worked well for everyone,”
Blumenthal told The Associated Press earlier this month.

Attorneys general from at least a dozen other states have joined
Blumenthal in their vocal condemnation of the new rule. More recently,
health officials and lawmakers in New Mexico, Iowa and Colorado are also weighing in with concerns.

The right-of-conscience rule is not the only regulation to be
ushered from the White House in recent weeks. Rules to ease
restrictions on mountaintop mining, expand oil shale development and
allow commercial fisheries to police their own polluting have all
emerged from the White House in the final moments of President George
W. Bush’s lame-duck term. Still, none has inspired the outcry of the
“right to conscience” rule.

“On its way out the door,” DeGette said, “the Bush Administration
has, once again, stubbornly and irresponsibly attacked Americans’
access to health care.”

News Law and Policy

Federal Judge Guts Florida GOP’s Omnibus Anti-Choice Law

Teddy Wilson

"For many people, Planned Parenthood is the only place they can turn to,” said Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away."

A federal judge on Thursday permanently blocked two provisions of a Florida omnibus anti-choice law that banned Planned Parenthood from receiving state funds and required annual inspections of all clinics that provide abortion services, reported the Associated Press.

U.S. District Judge Robert Hinkle issued an order in June to delay implementation of the law.

“The Supreme Court has repeatedly said that a government cannot prohibit indirectly—by withholding otherwise-available public funds—conduct that the government could not constitutionally prohibit directly,” Hinkle wrote in the 25-page ruling.  

Thursday’s decision came after Republican Gov. Rick Scott’s administration decided not to pursue further legal action to defend the law, and filed a joint motion to end the litigation.

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Hinkle issued a three page decision making the injunction permanent.

HB 1411, sponsored by Rep. Colleen Burton (R-Lakeland), was passed by the Republican-controlled state legislature in March.

The judge’s ruling nixed provisions in the law that banned state funding of abortion care and required yearly clinic inspections. Other provisions of the law that remain in effect include additional reporting requirements for abortion providers, redefining “third trimester,” and revising the care of fetal remains.

The GOP-backed anti-choice law has already had a damaging effect in Palm Beach County, where Planned Parenthood was forced to end a program that focused on teen dropout prevention.

Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida, said in a statement that the ruling was a “victory for thousands of Floridians” who rely on the organization for reproductive health care.

“For many people, Planned Parenthood is the only place they can turn to,” Zdravecky said. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away.”

A spokesperson for Scott told Reuters that the administration is “reviewing” the decision.

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.

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