Weekly Pulse: Public Health Insurance Option Not Optional

Lindsay E. Beyerstein

During a press conference Tuesday, President Obama voiced support for government-administered health insurance for all who need it as a key component of healthcare reform.

During a press conference Tuesday, President Obama voiced support
for government-administered health insurance for all who need it (aka
the "public option"), as a key component of healthcare reform. Though
Obama stopped short of threatening to veto a bill that didn’t contain
such an option, he said
that a public option is needed to enforce market discipline. If the
system is going to reform, the health insurance companies can’t just
keep selling the same bad coverage with bigger public subsidies for
their monopolies. Essentially, Obama isn’t about to force taxpayers to
buy overpriced insurance from private companies.

"The public plan, I think, is an important tool to discipline
insurance companies," Obama said during yesterday’s White House news
conference. "I think there is going to be some healthy debate about the
shape that this takes." He outlined three options: Get insurance
through your employer, buy insurance on your own, or buy insurance from
a marketplace where public and private insurance providers compete for
business.

In the Washington Monthly, Steve Benen notes the central irony of the standard insurance industry criticism of Obama’s plan:

A public option, critics tell us, would
provide a horrible, bureaucratic service for customers, including
rationing and long waiting times. But here’s the follow-up: if that’s
true, no one would choose the public option and insurance companies
would be just fine for the indefinite future.

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Except, of course, insurance companies and their policymaking allies know better. Which is why they’re panicking.

As Senate Democrats continued to cast about for an elusive
bipartisan compromise on healthcare reform, their colleagues in the
House are pushing ahead on their own. House Democrats are holding
hearings this week on draft legislation and is written without
Republican input. The house bill would require all Americans to have
health insurance and put new restrictions on employers as well. The Uptake is covering the hearings live.

By allowing the proliferation of multiple healthcare bills, the
Obama administration is deliberately avoiding the mistakes that the
Clintons made in 1994, according to Mark Schmitt in the American Prospect.
Instead of submitting its own 1300-page bill to Congress, the Obama
administration is letting the legislative branch hash out the details
while the executive branch hovers above the fray:

The Obama White House has a huge
advantage that the Clinton administration didn’t: The plan is basically
written, and it has a constituency. Everything Clinton spent a year on
is done. All the work to build consensus around fundamental features –
a regulated insurance market, an individual mandate, and a public plan
to provide a competitive benchmark – made up the outlines of every
Democratic presidential candidates’ proposals. They have been further
developed at the think tanks and various "strange bedfellow" coalitions
that have been at work in Washington for at least four years. There are
some questions about details and cost containment, but all the major
alternatives have fallen by the wayside. It’s an extraordinary
accomplishment, and a real testament to the infrastructure that’s been
constructed for progressive policy as well as politics.

The big picture approach gives the administration room to shore up
key allegiances with powerful interest groups. Last week, many feared
the public option was DOA when congressional budget analysts announced
that the proposal would cost more than expected. Mike Madden
explains in Salon that things were looking grim until Obama struck a
deal with Big Pharma to save $80 billion on drugs for seniors:

So the deepest significance of the deal between the government and PhRMA,
the drug lobby, may well have been what it meant politically. Yes, the
announcement means Medicare patients will no longer have to deal with
an odd "doughnut hole" in their drug coverage; before Monday, the
government pays for seniors’ prescriptions if their annual cost is
under $2,700 or more than $6,100, but not if the price is in between.
But more important, the news gave the administration a public relations
victory – the president just saved the government, and seniors, $80
billion – to kick off a week where Obama plans to play offense, not
defense, on healthcare.

Mike Lillis of the Colorado Independent
explains why filling the donut hole isn’t a big sacrifice for the
industry: Drug companies have already profited handsomely from the
prescription drug program. Furthermore, Lillis notes, the companies may
still come out ahead if seniors begin to buy donut hole drugs that they
previously couldn’t afford. Even at half price, Big Pharma still does
okay.

Finally, Eleanor Bader of Rewire
brings us the story of how the Women’s Medical Fund helps women who
can’t afford abortions. The Pennsylvania fund was established in 1985
after state Medicaid cut off abortion funding. The Fund is one of over
100 abortion access funds nationwide providing options for poor women
that anti-choicers sought to take away by manipulating healthcare
coverage for political ends.

Healthcare reform, priority one on Obama’s domestic agenda, is
finally getting its moment in the spotlight. Competing healthcare bills
are taking shape and a vigorous public debate is underway. Keep
checking The Pulse for play-by-play coverage of the most important policy battle in a generation.

Commentary Politics

No, Republicans, Porn Is Still Not a Public Health Crisis

Martha Kempner

The news of the last few weeks has been full of public health crises—gun violence, Zika virus, and the rise of syphilis, to name a few—and yet, on Monday, Republicans focused on the perceived dangers of pornography.

The news of the last few weeks has been full of public health crises—gun violence, the Zika virus, and the rise of syphilis, to name a few—and yet, on Monday, Republicans focused on the perceived dangers of pornography. Without much debate, a subcommittee of Republican delegates agreed to add to a draft of the party’s 2016 platform an amendment declaring pornography is endangering our children and destroying lives. As Rewire argued when Utah passed a resolution with similar language, pornography is neither dangerous nor a public health crisis.

According to CNN, the amendment to the platform reads:

The internet must not become a safe haven for predators. Pornography, with its harmful effects, especially on children, has become a public health crisis that is destroying the life [sic] of millions. We encourage states to continue to fight this public menace and pledge our commitment to children’s safety and well-being. We applaud the social networking sites that bar sex offenders from participation. We urge energetic prosecution of child pornography which [is] closely linked to human trafficking.

Mary Frances Forrester, a delegate from North Carolina, told Yahoo News in an interview that she had worked with conservative Christian group Concerned Women for America (CWA) on the amendment’s language. On its website, CWA explains that its mission is “to protect and promote Biblical values among all citizens—first through prayer, then education, and finally by influencing our society—thereby reversing the decline in moral values in our nation.”

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The amendment does not elaborate on the ways in which this internet monster is supposedly harmful to children. Forrester, however, told Yahoo News that she worries that pornography is addictive: “It’s such an insidious epidemic and there are no rules for our children. It seems … [young people] do not have the discernment and so they become addicted before they have the maturity to understand the consequences.”

“Biological” porn addiction was one of the 18 “points of fact” that were included in a Utah Senate resolution that was ultimately signed by Gov. Gary Herbert (R) in April. As Rewire explained when the resolution first passed out of committee in February, none of these “facts” are supported by scientific research.

The myth of porn addiction typically suggests that young people who view pornography and enjoy it will be hard-wired to need more and more pornography, in much the same way that a drug addict needs their next fix. The myth goes on to allege that porn addicts will not just need more porn but will need more explicit or violent porn in order to get off. This will prevent them from having healthy sexual relationships in real life, and might even lead them to become sexually violent as well.

This is a scary story, for sure, but it is not supported by research. Yes, porn does activate the same pleasure centers in the brain that are activated by, for example, cocaine or heroin. But as Nicole Prause, a researcher at the University of California, Los Angeles, told Rewire back in February, so does looking at pictures of “chocolate, cheese, or puppies playing.” Prause went on to explain: “Sex film viewing does not lead to loss of control, erectile dysfunction, enhanced cue (sex image) reactivity, or withdrawal.” Without these symptoms, she said, we can assume “sex films are not addicting.”

Though the GOP’s draft platform amendment is far less explicit about why porn is harmful than Utah’s resolution, the Republicans on the subcommittee clearly want to evoke fears of child pornography, sexual predators, and trafficking. It is as though they want us to believe that pornography on the internet is the exclusive domain of those wishing to molest or exploit our children.

Child pornography is certainly an issue, as are sexual predators and human trafficking. But conflating all those problems and treating all porn as if it worsens them across the board does nothing to solve them, and diverts attention from actual potential solutions.

David Ley, a clinical psychologist, told Rewire in a recent email that the majority of porn on the internet depicts adults. Equating all internet porn with child pornography and molestation is dangerous, Ley wrote, not just because it vilifies a perfectly healthy sexual behavior but because it takes focus away from the real dangers to children: “The modern dialogue about child porn is just a version of the stranger danger stories of men in trenchcoats in alleys—it tells kids to fear the unknown, the stranger, when in fact, 90 percent of sexual abuse of children occurs at hands of people known to the victim—relatives, wrestling coaches, teachers, pastors, and priests.” He added: “By blaming porn, they put the problem external, when in fact, it is something internal which we need to address.”

The Republican platform amendment, by using words like “public health crisis,” “public menace” “predators” and “destroying the life,” seems designed to make us afraid, but it does nothing to actually make us safer.

If Republicans were truly interested in making us safer and healthier, they could focus on real public health crises like the rise of STIs; the imminent threat of antibiotic-resistant gonorrhea; the looming risk of the Zika virus; and, of course, the ever-present hazards of gun violence. But the GOP does not seem interested in solving real problems—it spearheaded the prohibition against research into gun violence that continues today, it has cut funding for the public health infrastructure to prevent and treat STIs, and it is working to cut Title X contraception funding despite the emergence of Zika, which can be sexually transmitted and causes birth defects that can only be prevented by preventing pregnancy.

This amendment is not about public health; it is about imposing conservative values on our sexual behavior, relationships, and gender expression. This is evident in other elements of the draft platform, which uphold that marriage is between a man and a women; ask the U.S. Supreme Court to overturn its ruling affirming the right to same-sex marriage; declare dangerous the Obama administration’s rule that schools allow transgender students to use the bathroom and locker room of their gender identity; and support conversion therapy, a highly criticized practice that attempts to change a person’s sexual orientation and has been deemed ineffective and harmful by the American Psychological Association.

Americans like porn. Happy, well-adjusted adults like porn. Republicans like porn. In 2015, there were 21.2 billion visits to the popular website PornHub. The site’s analytics suggest that visitors around the world spent a total of 4,392,486,580 hours watching the site’s adult entertainment. Remember, this is only one way that web users access internet porn—so it doesn’t capture all of the visits or hours spent on what may have trumped baseball as America’s favorite pastime.

As Rewire covered in February, porn is not a perfect art form for many reasons; it is not, however, an epidemic. And Concerned Women for America, Mary Frances Forrester, and the Republican subcommittee may not like how often Americans turn on their laptops and stick their hands down their pants, but that doesn’t make it a public health crisis.

Party platforms are often eclipsed by the rest of what happens at the convention, which will take place next week. Given the spectacle that a convention headlined by presumptive nominee (and seasoned reality television star) Donald Trump is bound to be, this amendment may not be discussed after next week. But that doesn’t mean that it is unimportant or will not have an effect on Republican lawmakers. Attempts to codify strict sexual mores are a dangerous part of our history—Anthony Comstock’s crusade against pornography ultimately extended to laws that made contraception illegal—that we cannot afford to repeat.

Culture & Conversation Law and Policy

The Modern Struggle Over Anti-Trans Bathroom Laws Has Its Roots in Decades of Title VII Fights

Jessica Mason Pieklo

Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, written by Gillian Thomas, senior staff attorney with the American Civil Liberties Union Women’s Rights Project, goes beyond cases that helped shape workplace anti-discrimination policies. Rather, it focuses on ten key women whose own lives changed the law.

In 1966, Ida Phillips, a single mother working as a waitress, sat down at her kitchen table and wrote a letter to then-President Lyndon B. Johnson. She told him her story: Despite her qualifications, Phillips had been told by a Martin Marietta employee not to apply for an assembly-line position at one of the construction-material company’s manufacturing plant. The job would have paid more than double what she was making as a waitress. It included a pension plan and insurance, benefits unavailable in most female-dominated industries at the time (and which since have only marginally improved.) The reason Phillips was turned away? She was a woman with a preschool child.

That letter, Phillips’ subsequent lawsuit, and her Supreme Court win would help spark a civil rights revolution in the workplace—one with consequences that reverberate today.

So opens Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Workwritten by Gillian Thomas, senior staff attorney with the American Civil Liberties Union (ACLU) Women’s Rights Project. Despite its full title, though, Because of Sex goes beyond cases that helped shape workplace anti-discrimination policies, focusing on ten key women whose own lives changed the law.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. And it was Phillips’ case, and the nine others profiled in the book, that would ultimately shape that law into one that, decades later, is an important tool in advancing gender and sex equality. As Thomas explained to Rewire in an interview, Title VII it is not just a foundational piece of civil rights legislation important for its historical effect on workplace equality. In the face of anti-transgender bathroom bills and statewide “religious liberties” legislation sweeping the country, it is a crucial tool for pushing equality forward.

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Thomas’ book is organized along three key themes in employment discrimination law: pregnancy-related workplace policies, gender stereotypes in the workplace, and sexual harassment. Those themes act as an inroad toward thinking more broadly about how, in Thomas’ words, we achieve “substantive equality” in the workplace. They illustrate how early fights over promotions and workplace policies that kept women out of certain jobs due to concerns of harming their potential fertility foreshadowed the legal showdowns over contraception coverage in employee health-care plans in cases like Burwell v. Hobby Lobby and Zubik v. Burwell.

“The subject matter areas that I saw [as a researcher and employment discrimination litigator] were, number one, women’s capacity for pregnancy, and then their subsequent roles as mothers, which, historically, has played a huge role in their second-class status legally,” Thomas told Rewire. “Women of color have always been seen as workers, irrespective of whether they had children, so that’s not an entirely universal stereotype. But I think it’s pretty safe to say that generally pregnancy and motherhood have proven to be enormous conflicts in terms of what equality looks like when you have these distinct differences” in how race and gender are perceived.

Take, for instance, the case of Peggy Young and the question whether an employer can refuse to make on-the-job accommodations for pregnant employees when it does so for nonpregnant employees. Young, another one of the women featured in Thomas’ book, was a United Parcel Service (UPS) “air driver” who became pregnant. When Young told her employer she was pregnant, UPS told her they couldn’t accommodate the light-lifting recommendation made by Young’s medical providers. Instead, UPS told Young, she would have to take unpaid medical leave for the remainder of her pregnancy.

In March 2015, the U.S. Supreme Court ruled against UPS, vacating the Fourth Circuit Court of Appeals ruling that had supported UPS’ policy. The decision produced a new test for assessing pregnancy discrimination claims and sent Young’s case back to the lower courts for another look. Not long after the Roberts Court’s decision, UPS and Young settled the lawsuit, bringing an end to Young’s case.

The decision was a qualified win for advocates. The Roberts Court had accepted Young’s argument that UPS had no legitimate business reason for failing to accommodate her particular request, but the decision went short of ruling businesses must accommodate any pregnancy request.

But Because of Sex doesn’t stop at unpacking overt discrimination like the kind detailed in Young’s 2015 case or Phillips’ one in 1966. The book also takes a look at what the law has described as more “benevolent” kinds of discrimination. These include employment policies designed to “protect” women from endangering possible future pregnancies, such as prohibiting women employees from working jobs where they may be exposed to hazardous chemicals.

“It really all boils down to two issues that we are talking about in all these things,” Thomas explained, when discussing workplace policies that, employers have argued, were put in place to protect their female employees from potentially endangering a pregnancy. “One is [employers] ignoring hazards that apply to men and making women into baby-making machines. And number two is [employers] treating health effects or health hazards on the job as reasons for diminishing women’s opportunities, instead of arming women with information and assuming that they will make the right choice for themselves.”

This disconnect is most apparent in the case of United Automobile Workers vJohnson Controls, Inc., another case Thomas highlights in her book. In 1982, the car battery manufacturer Johnson Controls sent a memorandum to all its employees that said “[w]omen who are pregnant or who are capable of bearing children will not be placed into jobs involving lead exposure or which would expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights.”

The policy amounted to a demotion for many female employees and a closed door for others.

Title VII actually permits employers, in a limited context, to have employment policies that discriminate on their face, such as policies that permit churches to only hire members of the same faith. Johnson Controls argued its policy of keeping women out of certain positions due to employer concerns of health risks to future pregnancies fit within Title VII’s narrow window for permitting explicit discrimination.

The Supreme Court would eventually rule in 1991 that Johnson Controls’ policy violated Title VII because it forced female employees to have to choose “between having a child and having a job,” thereby rejecting the argument made by Johnson Control’s that a woman’s fertility—or infertility—can in most situations be considered a bona fide occupational qualification.

As Thomas noted in her book, “It was no coincidence that fetal protection politics were most prevalent in well-paid, unionized industries from which women historically had been excluded. Indeed they had been excluded precisely because they had been deemed physically unsuited for the dirty, sometimes strenuous work.”

But “in female-dominated fields, though, fetal protection policies made no business sense; they effectively would gut the workforce. That reality apparently trumped any hypothetical harm to employees’ future pregnancies,” Thomas wrote.

In other words, these policies didn’t exist in female-dominated fields.

Johnson Controls may have helped grant women the agency to determine how and when they earned a paycheck with regard to policies targeting their potential fertility, but it hardly ended the debate around when and how employers attempt to diminish women’s opportunities related to their roles as potential mothers. This has played out in the hundreds of lawsuits over the contraception benefit, for example.

In other words, if Johnson Controls had settled the question of whether a woman’s fertility was an appropriate grounds for discrimination, we would not have Hobby Lobby.

Because of Sex draws another connection between the historical fight over Title VII and the contemporary one: How do employers adjust workplace policies around shifting gender norms, and when is it discriminatory if they don’t?

The law asks, “What are women supposed to want to do?” said Thomas in her interview with Rewire. “What work are they able to do? What work do they want to do? [Given] assumptions and stereotypes that are about their abilities, their preferences, their interests and how [they are] conforming to [those] in terms of stereotypes about what femininity is—what [are] women … supposed to look and act like?”

Gender nonconforming behavior, and the manner in which employees experience discrimination as a result of that behavior, is a key component over the debate around transgender rights. But it would take a “shrill” woman and the birth of the notion of “workplace harassment” to get us and the law there first.

By every measure, Ann Hopkins should have been made a partner in the global accounting firm Price Waterhouse. She was smart. Ambitious. Worked hard and constantly outperformed her peers. But it was those very attributes that her male partners deemed “too aggressive” or as evidence that she needed “charm school,” and ultimately used to deny her a partnership that by every objective measure she had earned.

The Supreme Court would ultimately disagree. In 1989, it ruled Hopkins should have been made a partner and that the comments relating to her demeanor amounted to improper gender stereotyping, a violation of Title VII’s sex discrimination provisions.

If Hopkins was initially shut out of workplace advancement due to her defiance of feminine stereotypes, so too are women subjected to on-the-job harassment, as Thomas draws out in Because of Sex. “Sexual harassment didn’t even have a name in 1974, but was such a prevalent force driving women out of the work force, driving them into different jobs [and] subjugating them just generally in terms of the identity as sexual objects on the job,” Thomas further explained in her interview.

1974 was the year Mechelle Vinson first hired a lawyer to represent her in a case against her boss, who was chronically sexually abusing her on the job. But at the time, courts largely wrote off those kinds of complaints as a kind of chasing-around-the-office, and not sexual harassment, or in Vinson’s case, on-the-job rape. As described by Thomas in her book, “throughout the 1970s, many courts responded to complaints about abusive bosses with a collective shrug that conveyed, ‘You can’t blame a guy for trying.'”

“Sexual harassment was such a prevalent force driving women out of the workforce, driving them into different jobs, and subjugating them just generally in terms of the identity as sexual objects on the job,” Thomas told Rewire.

That “you can’t blame a guy for trying” attitude hasn’t completely gone away as far as the federal courts are concerned. After all, in 2013 the Roberts Court in Vance v. Ball State made it even harder for employees to bring workplace harassment suits, and employees still face losing jobs for “being too cute” or having their sexuality be a perceived threat to their employer’s ability to remain professional in the workplace.

Which is why, in the fight over transgender bathroom access in 2016, Title VII should be a powerful force in defeating these latest attempts to stymie social progress. The idea that “you can’t blame a guy for trying” has morphed into “how the hell can we police gender roles if we don’t know where you pee.” That’s thanks almost entirely to the manner in which the law has wrestled with gender stereotypes under Title VII, Thomas explained.

In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing workplace anti-discrimination laws, issued the landmark decision Macy v. Holder, which held that employment discrimination based on transgender status was a form of unlawful sex discrimination under Title VII. Then in 2015, it issued a ruling stating that denying employees access to restrooms consistent with their gender identity is also a violation of Title VII. Meanwhile several federal courts of appeals have ruled that Title VII protects against gender identity discrimination.

But the Roberts Court has yet to weigh in.

“I think sexual orientation in a way is the sort of a final frontier” in Title VII litigation, said Thomas. “The court seems really fixated on this idea of analogizing very precisely from Hopkins. In other words, if you look or act in a way that doesn’t conform to gender stereotypes then, OK, [the courts] can understand that’s sex discrimination,” said Thomas. “But if your identity is not conforming to stereotypes in that you, you know, are romantically attracted to someone of your sex, that is harder for [the courts] to get, even though it’s obviously the most obvious manifestation of stereotype.”

This is, in many ways, a fight that started in the workplace—one that eventually got the backing of the Obama administration before becoming a flashpoint of conservative election-cycle politics. Thomas’ book doesn’t close on a prediction of what the next big Title VII fight will be per se, but it is impossible to finish it and not see the narrative threads of the historical fight for workplace equality woven throughout the the contemporary one. Sex. Gender. How the law understands and navigates the two. All this is what makes Thomas’ Because of Sex the closest thing to an assigned reading I can make.