And….the Family Research Council weighs in on the HHS rule and the lawsuits seeking an injunction from having them go into effect. The statement speaks for itself.
January 20 may be recognized as the date of Barack Obama’s swearing-in, but American health care workers will be celebrating it as a landmark for workplace rights. In what pro-lifers will see as a sweet irony, the nation’s most pro-abortion president will take office on Tuesday, the same date that his predecessor’s conscience protections kick in.
The rules, which the Bush administration released last month, deny federal funding for federally funded entities that force their staff to take part in morally objectionable practices like abortion. As part of the regulations, each medical facility must promise–in writing–to abide by these conditions. FRC had lobbied HHS for this change for years, arguing that health care workers shouldn’t have to choose between their personal beliefs and their jobs. Most liberals disagreed, saying that a woman’s "right" to kill her unborn child should trump any moral objections by clinic staffers.
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Yesterday, as expected, a tiny fraction of state attorneys general took the Bush administration to federal court over its decision. Seven states (California, Connecticut, Illinois, Massachusetts, New Jersey, Oregon, and Rhode Island) were represented in the suit to stop the regulations, as were Planned Parenthood, the ACLU, and the National Family Planning and Reproductive Health Association. Although the rules would give health care workers more freedom, this suit proves that abortion moguls only respect the "choice" of people who pad their bottom line. Rather than wait on the Obama Administration to reverse the rules, which could take up to six months, these impatient liberals are relying on the old strategy of fast-tracking their agenda through the courts. According to a poll by HCD Research, the regulations are also supported by physicians. When asked, only 33 percent of 1,736 doctors opposed the new conscience protections.
The year will be remembered not only because 17 states enacted a total of 57 new abortion restrictions, but also because the politics of abortion ensnared family planning programs, providers, and life-saving fetal tissue research.
During 2015’s state legislative sessions, lawmakers considered 514 provisions related to abortion; the vast majority of these measures—396 in 46 states—sought to restrict access to abortion services. The year will be remembered not only because 17 states enacted a total of 57 new abortion restrictions, but also because the politics of abortion ensnared family planning programs and providers, as well as critical, life-saving fetal tissue research.
2015 may also be memorable for setting the stage for what is widely anticipated to be one of the most significant Supreme Court rulings on abortion since 1992. In November, the Court agreed to hear a challenge to a Texas law requiring abortion providers to adhere to the standards set for ambulatory surgical centers and to have admitting privileges at a local hospital. At stake is the question of how far states may go in regulating abortion before their actions amount to an unconstitutional “undue burden” on women’s ability to access care. The Court will hear the case in March, with a decision expected in June; it is still considering whether to review a Mississippi admitting-privileges law. (Also in 2016, the Court will revisit the contraceptive coverage guarantee under the Affordable Care Act, weighing its importance and approach against the contention of religiously affiliated employers that they deserve to be entirely exempt from the law.)
At the same time, several states made important advances in 2015 on other sexual and reproductive health and rights issues. Some of the new provisions include measures that allow women to obtain a full year’s worth of prescription contraceptives at one time from a pharmacy, that allow a provider to treat a patient’s partner for an STI without first seeing the patient, that prohibit the use of “conversion therapy” with minors, and that expand access to dating or sexual violence education. See our full analysis for details.
Access to Abortion Services
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Including the 57 abortion restrictions enacted in 2015, states have adopted 288 abortion restrictions just since the 2010 midterm elections swept abortion opponents into power in state capitals across the country. To put that number in context, states adopted nearly as many abortion restrictions during the last five years as they didduring the entire previous 15 years. Moreover, the sheer number of new restrictions enacted in 2015 makes it clear that this sustained assault on abortion access shows no signs of abating.
The 288 new restrictions enacted since 2010 include a broad range of approaches, from banning certain types ofabortions to putting restrictions on the providers allowed to perform the procedures to limiting insurance coverage.
Thirty-one states—spanning all regions of the country—enacted at least one abortion restriction during the last five years. The ten states that enacted at least ten new restrictions together accounted for 60 percent of the 288 new abortion restrictions adopted over the last five years. These states are overwhelmingly located in the South and the Midwest, and it is likely that access to services for women in these regions has been impacted significantly. Four states—Arkansas, Indiana, Kansas, and Oklahoma—each enacted at least 20 new abortion restrictions, making this handful of states, which together adopted 94 new restrictions, responsible for a third of all abortion restrictions enacted nationwide over the last five years. Kansas has the dubious distinction of leading the pack with 30 new abortion restrictions since 2010.
Although the 57 new abortion restrictions enacted during 2015 include a wide range of provisions, four topics stood out as the subject of particular attention among lawmakers:
1. Counseling and Waiting Periods
Five states adopted new (Florida and Tennessee) or lengthened existing (Arkansas, North Carolina, and Oklahoma) waiting period legislation in 2015. (The new Florida law has been temporarily blocked by the courts; the Oklahoma law is also being challenged, but a state court allowed it to go into effect while the case is pending.) Including these new laws, 27 states have waiting periods in effect. The new laws in Florida and Tennessee require the pregnant person to receive state-mandated abortion counseling in person, meaning that she must make two separate trips to obtain an abortion. With enforcement of the Florida law blocked, 13 states have two-trip requirements in effect.
2. Medication Abortion
Three states sought to use longstanding strategies to restrict access to medication abortion. Arkansas, Idaho, and Kansas enacted new measures banning the use of telemedicine for the provision of medication abortion. Arkansas also mandated use of the regimen specified in the FDA-approved labeling, which bans the use of the newer evidence-based regimen that is less costly, has fewer side effects, and can be used several days later in pregnancy; the law is not in effect due to a court case. Currently, 18 states ban the use of telemedicine and four require providers to follow an outdated medication abortion regimen.
Arizona and Arkansas debuted a new approach to discourage a woman from obtaining a medication abortion. Both states adopted laws requiring doctors to counsel women that the abortion could be stopped if the woman takes a high dose of progesterone after receiving the first of the two drugs included in the medication abortion regimen. According to the American Congress of Obstetricians and Gynecologists, this new approach is based on scant scientific evidence; it relies on a single flawed study of only six cases that did not have oversight by an institutional review board. The Arizona law is blocked pending a legal challenge; the Arkansas law is in effect.
3. Abortions After the First Trimester
Anti-choice lawmakers unveiled a new strategy in 2015 by moving to ban the use of the procedure used most often for second-trimester abortions. Kansas and Oklahoma both enacted measures to ban this safe and medically proven method that has long been used for abortions after 14 weeks; both laws are enjoined pending court action.
West Virginia and Wisconsin enacted laws banning abortion at or after 20 weeks post-fertilization (which is equivalent to 22 weeks after the woman’s last menstrual period). The West Virginia measure is in effect; the one in Wisconsin is slated to go into effect in February. Currently, 12 states have similar bans in effect.
4. Targeted Regulation of Abortion Providers (TRAP)
Even as the stage was being set for the U.S. Supreme Court to review TRAP laws, as we reviewed above, legislative action continued apace in several states. Five states adopted TRAP laws in 2015. Following a 2014 ballot initiative that granted lawmakers the ability to enact virtually limitless abortion restrictions, Tennessee enacted a new TRAP law that requires abortion providers to meet the standards that apply to ambulatory surgical centers even though these centers typically provide more invasive and risky procedures than abortion and use higher levels of sedation than commonly provided in abortion clinics.
Arkansas, Indiana, Ohio, and Oklahoma made existing requirements more stringent.
Family Planning Providers
In the aftermath of the release of a series of deceptively edited sting videos aimed at Planned Parenthood, attempts to defund the organization have flared at both the federal and state levels. By the end of 2015, some 11 states had moved to slash funding either for Planned Parenthood health centers specifically or for any family planning provider that also offers abortion services. A Guttmacher analysis shows that defunding Planned Parenthood could seriously impair women’s access to needed services: In two-thirds of the 491 counties in which they are located, Planned Parenthood health centers serve at least half of all women obtaining contraceptive care from safety-net health centers. In one-fifth of the counties in which they are located, Planned Parenthood sites are the sole safety-net family planning center.
States have targeted a variety of funding streams on which family planning providers rely to fund the breadth of their services and activities, and are likely to continue in this vein in the upcoming 2016 legislative sessions:
Mirroring events in Congress, five states—Alabama, Arkansas, Louisiana, Oklahoma, and Texas—took steps to exclude Planned Parenthood from the Medicaid program in 2015. These efforts were blocked by federal courts in Alabama, Arkansas, and Louisiana; a challenge was just filed in November in Texas. Similar efforts made by Arizona and Indiana in recent years were also rebuffed by federal courts.
Other Family Planning Funding
Following the release of the videos, North Carolina expanded its existing provision blocking state funding of “non-public” family planning providers to explicitly apply to family planning providers that also offer abortion services. (Similar measures to bar funding for family planning providers that offer abortion care were introduced in Illinois, Pennsylvania, and Wisconsin.) In addition, New Hampshire’s Executive Council, an administrative board charged with overseeing large funding streams in the state, excluded Planned Parenthood health centers from receiving federal Title X dollars that flow through the state. (Title X funding that Planned Parenthood receives directly from the federal government is not affected.)
Currently, ten states limit eligibility for family planning funding. Eight of these states—Arizona, Arkansas, Colorado, Indiana, North Carolina, Ohio, Texas, and Wisconsin—prohibit abortion providers from receiving state family planning dollars. Kansas and Oklahoma exclude family planning providers not operated by public entities from eligibility.
Funding for Related Services and Activities
North Carolina and Utah moved to exclude family planning providers from eligibility for funding for related services. Legislation enacted in North Carolina bars family planning providers that offer abortion services from receiving funding for adolescent parenting and teen pregnancy prevention programs. Utah Gov. Gary Herbert (R) directed the state department of health to discontinue any funding for Planned Parenthood health centers, including funding for STI surveillance efforts, STI testing and treatment, and abstinence education; a federal appellate court recently prohibited the state from excluding Planned Parenthood from the funds.
Fetal Tissue Donation and Research
As yet another consequence of the release of the Planned Parenthood sting videos, ten states moved to regulate either the process for fetal tissue donation or biomedical research conducted in the state using fetal tissue resulting from induced abortions. Fetal tissue research has been integral to many of the major medical advances of our age. For example, fetal cell lines were used in the development of the polio vaccine and vaccines for diseases such as measles, mumps, rubella, chickenpox, hepatitis A, and rabies. In short, fetal tissue research has saved and improved the lives of millions of people worldwide.
During the final months of 2015, North Carolina and Arizona moved to regulate fetal tissue donation and research. A law enacted in North Carolina prohibits the sale of fetal tissue for a profit, paralleling federal requirements. Arizona adopted an emergency regulation requiring facilities to report any donation of fetal tissue to the state. Measures related to fetal tissue donation and research were introduced last year in Alabama, California, Michigan, New Jersey, Ohio, New York, and Wisconsin.
Editor’s note: Gwendolyn Rathbun and Zohra Ansari-Thomas also contributed to this analysis.
Hobby Lobby supporters claim that they aren't out to take away contraception, just to keep religious employers from paying for it. Now that the Obama administration has made that possible, however, they are still throwing fits.
When Hobby Lobby sued—and won—for a right to be exempted from the Affordable Care Act regulation requiring employee health-care plans to cover contraception without a copay, the official claim from both Hobby Lobby and its conservative defenders was that this was not an attempt to deprive women of contraception. No, the official argument was that it was simply an attempt by Hobby Lobby’s religious owners not to be party to behavior they consider immoral by “paying for” it.
Well now the Obama administration has created a workaround that more than satisfies the official claim that this isn’t about preventing contraception use; it’s just about not participating in it. All employers who have this oh-so-sincere belief, all they have to do is send in a letter formally declaring that contraception violates their religious doctrines, and they won’t have to pay for it. Instead, the insurance company will just pay directly. No big surprise here. But the supposed defenders of religious liberty are already outraged, because that’s never been what this is about. Rather, it’s about imposing anti-choice dogma on people who don’t agree with it.
If the actual concern was participation in behavior that violates religious principles, then the Obama administration’s new policy should more than address that. All that is required is a statement of principles. People make sincere statements of religious belief in order to get religious exemptions from laws all the time. Conscientious objectors to the draft, for instance, had to make such statements. It’s not considered a burden because there is no shame in expressing a belief you legitimately hold.
If, however, the “sincerely held” argument is a dishonest gambit to cover up for the real goal among much of the right—depriving women of contraception and asserting employer ownership over their private lives—then we can expect that conservatives will reject this new policy. After all, while it meets the stated demand of accommodating religious belief, it does not prevent women from getting affordable contraception outright.
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Anyone who has been watching the right become more overtly anti-contraception in recent years can probably guess what is happening: Conservatives are throwing a fit over this. “The government keeps digging the hole deeper,” Adèle Auxier Keim of the Becket Fund, which represented Hobby Lobby in its suit, told U.S. News and World Report. “The government still won’t give up on its quest to force nuns and other religious employers to distribute contraceptives.”
That rhetoric, unsurprisingly, is thoroughly and completely dishonest. First of all, no employer was ever once asked to “distribute contraceptives.” No bowls of Plan B are required at work. No IUD insertions at your desk. For a woman to get contraception, she has to use her insurance plan—the one belonging to her, not her employer—to cover it at a pharmacy. It doesn’t matter if the employer provided it: The employer never had a part in it, no more than if a woman uses her paycheck to purchase condoms.
But now the distance is even greater, since the contraception coverage from the objecting companies isn’t even coming from their employer-offered plans! On the contrary, they are given an opportunity to write a letter declaring how not involved they are. This is strictly between a woman, her doctor, and her insurance company, and the employer doesn’t have anything to do with it.
The Becket Fund is hardly the only source of discontent. TheWashington Times, a conservative paper, went with the headline, “Obama skirts Supreme Court Hobby Lobby birth-control ruling,” a headline that only makes sense if you believe the purpose of the ruling was to deprive women of contraception instead of shield religious employers from participation. Patheos blogger Kathy Schiffer angrily railed, “There’s an ‘accommodation’ which ensures that all women, unless they work for a place of worship, will still get their [copay-free] birth control—even if their employers refuse to pay for it,” and whining about women having “uninhibited sex with no risk of conception.”
This is probably just the beginning of the backlash. After all, when similar rules were written for nonprofits, many of those employers sued anyway, trying to argue that admitting you have a belief can somehow violate that belief if it makes it easier for an employee to get contraception. That argument isn’t performing well in court. Just this week, the Tenth Circuit Court shut it down again, noting that being asked to clarify your beliefs in order to get an exception to a widespread law is not any kind of violation of your rights.
It’s obvious now that employers are trying to seize as much control as they legally can over their workers’ private lives by trying to put as many obstacles as they can between their employees and contraception use. Which is entirely consistent with the overall approach conservatives take on this issue, from pushing for mandatory ultrasounds for abortion to showing up at clinics to harass women. It’s all about stripping women of autonomy and privacy. These employers are just making a naked power grab, using the newness of the Affordable Care Act as an opportunity to inject themselves into a decision that isn’t theirs to make.
Even a popular talking point used to defend Hobby Lobby in the press exposes this privacy-invasion mentality. It was common for right-wing pundits to say that Hobby Lobby covers 16 out of the 20 forms of contraception approved by the FDA, suggesting that women should be grateful for such riches. Never mind that this talking point was simply wrong, as the Supreme Court decision allows employers who have a broader anti-contraception agenda to opt out of health plans that cover any of it. That talking point assumes that your employer should have the power to artificially limit your choices. Imagine if your boss told you that you were no longer “allowed” to use your paycheck to buy broccoli anymore, because he didn’t like it. If he defended himself by pointing out that he still allows you to buy squash and asparagus, that’s no defense at all. It still assumes that he should have final say over how you eat. This talking point was the same: It insidiously pushed the idea that your boss has any business whatsoever telling you what kind of medications to take.
Perhaps this temper tantrum over signing a letter will prove a bridge too far. It does make it impossible to uphold the myth that this was ever about “religious liberty.” For now, for-profit companies who object to contraception haven’t made any further moves. But do not be surprised if they do start suing to gain the ability to interfere with an employee’s right to get contraception coverage elsewhere. Because this was never about religious liberty, but about taking religious and reproductive freedom away from women.