The “Real Life” Effects of Stupak-Pitts: An Analysis by Legal Experts at Planned Parenthood

Jodi Jacobson

What are the real-life effects of the Stupak-Pitts amendment to the House health care bill? An analysis by experts on health law, and reproductive and sexual health issues, shows just how far it goes.

What are the real-life effects of the Stupak-Pitts amendment to the House health care bill?

An analysis by experts on health law, and reproductive and sexual health issues at Planned Parenthood shows the following:

The New Health Insurance Exchange

The new health insurance exchange is intended to provide a
new source of affordable, quality coverage for the roughly 46 million uninsured
Americans and the millions more whose current coverage is unaffordable or
inadequate.  The House bill is
expected to cover 96 percent of all uninsured Americans by offering subsidies
for private coverage or the choice of a public plan.  Depending on their income level and the final package
approved by the Congress, individuals would receive subsidies on a sliding
scale to purchase private insurance through the exchange.

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In the House-passed bill, all
individuals with incomes up to 400 percent of poverty ($88,000 for a family of
four) would receive subsidies to help purchase health insurance.  However, not everyone in the exchange would
have subsidized coverage — a significant portion of people (for instance, those
currently purchasing in the individual market and those working for small
businesses) who would buy insurance in the exchange would not receive any subsidies,
also known as affordability credits.

The Stupak-Pitts Amendment

The Stupak-Pitts amendment prohibits any coverage of
abortion in the public option and prohibits anyone receiving a federal subsidy
from purchasing a health insurance plan that includes abortion.  It also prohibits private health
insurance plans from offering through the exchange a plan that includes
abortion coverage to both subsidized and unsubsidized individuals.  

Thus, if a plan wants to offer coverage
in the exchange to both groups of individuals, it would have to offer two
different plans: one with abortion coverage for women without subsidies and one
without abortion coverage for women with subsidies.  These private insurance plans would need to be identified as
either providing or not providing coverage for abortion.   

Health insurance plans are highly unlikely to operate in this
manner, and it is not even clear that this is feasible under the administration
of the exchange and affordability credits.  As one alternative, the Stupak amendment purports to
allow women to purchase a separate, single-service “abortion rider,” but
abortion riders don’t exist.  In
the five states that only allow abortion coverage through a separate rider,
there is no evidence that they are available. 

Furthermore, women are unlikely to think ahead to choose a
plan that includes abortion coverage, since they do not plan for unplanned
pregnancy.  In addition, it is not clear
that health plans would even be allowed to offer two separate plans under other
provisions of the act, such as the anti-discrimination and guaranteed-issue provisions.   Those elements of the bill, which
are very important to consumers, may make it impossible for plans to provide
two separate plans, one that includes abortion and another that does not.

Realistically, the actual effect of the Stupak-Pitts amendment is to ban
abortion coverage across the entire exchange, for women with both subsidized
and unsubsidized coverage.  

Who Would Be Covered in the Exchange

Most immediately, the exchange would offer coverage to many
of the 17 million women ages 18–64 who are uninsured.  It would also be a source of coverage
for the 5.7 million women who are now purchasing coverage in the individual
market.  Typically, these are women
who are not receiving health coverage through an employer — they may be
self-employed, underemployed, or unemployed.  Small employers (with fewer than 100 employees) are also
likely to transition their health insurance to the exchange where they may be
able to find more affordable options.  

In most of these cases, women will lose abortion coverage
that they currently have — in the current private insurance market, the
majority of health insurance plans include abortion.  A self-employed graphic designer or writer, buying coverage
from Kaiser Permanente in the individual market, will likely have abortion
coverage.  Under the health reform
plan amended by Stupak, she would purchase that same plan from Kaiser Permanente
in the exchange, but it would not include abortion coverage because it would be
barred.  This ban would be in
effect even if she were paying the full premium.  

Similarly, a woman working for a small graphic design firm,
who currently has abortion coverage through her company’s plan, would lose it
under reform if the company decides to seek more affordable coverage in the
exchange.  

Roughly 60 million women aged 18–64 get their coverage
through their employer or through their spouse’s employer.  For some of these women, nothing will
change immediately.  But if current
trends continue in the erosion of employer-sponsored health care, more and more
women will be getting their health care through the exchange.  Women are much more likely to be covered
as dependents on their husbands’ health insurance plans, and more and more
employers are eliminating dependent coverage as a way to cut costs.  Where will these women get covered?  They will get health insurance from the
exchange where abortion coverage is prohibited.

Moreover, women are much more likely to lose
employer-sponsored insurance coverage as a result of a husband’s death or
divorce.  While they will be able to
purchase coverage in the exchange, their coverage will not include abortion
coverage.  Moreover, the House bill
opens the door to large employers joining the exchange by giving the commissioner
the authority to allow large employers into the exchange beginning in the third
year of the enactment of health reform. 
If this proves to be true, over time, women who get coverage through
large companies would lose access to abortion coverage entirely.

The Two-Tiered Health Care System

The House-passed health care system adds a huge swath of the
female population to the “have nots” column of an already two-tiered health
care system when it comes to abortion coverage in the United States.  Prior to the passage of the House bill,
our health care system was a system in which only women who could afford to pay
for abortions with their own money or through their insurance plans would have
access to abortion.  Consider the
current restrictions already in place:

  • low-income women on Medicaid
  • federal employees, their spouses, and female dependents
  • women serving in the military overseas
  • women in federal prisons
  • women in the District of Columbia

 

The House-passed bill would add to this list of women who do
not have coverage millions of women who are getting their health insurance
through the exchange.  Consider
just a few examples:

  • working mothers
    in families that earn up to $88,000

  • women who are
    self-employed and paying the entire cost of their coverage and don’t have
    access to employer-sponsored coverage

  • young women
    entering the job market for the first time who are the least likely to have
    employer-sponsored coverage

  • women who were
    insured through their husbands’ employers, but now are divorced and have to
    purchase coverage on their own through the exchange

  • women who work
    in small businesses whose owners decide to seek more affordable, quality
    coverage through the exchange

 

The experts conclude:

Over the last six months, we have heard much about how important
it is to reform the health care system to meet the needs of women.  Women are much more likely to be left
out of the current employer-based system because this system wasn’t designed
for them — it was designed for higher-wage, full-time earners who have
dependents at home — namely, men.  

Women
tend to be in lower-wage or part-time jobs that don’t offer insurance, move in
and out of the workforce because of childbearing and childrearing
responsibilities, and become uninsured because of divorce or death of a spouse.
 But these are the very same women
who are targeted by the Stupak-Pitts amendment.  And they will join the growing ranks of women who are denied
coverage of a legal medical procedure.

It’s turning out to be a strange sisterhood:  the poor, the incarcerated, the
federally employed, the stateless, the soldier, and now the middle-class in the
exchange.

Essentially, the amendment violates the underlying principle
of health care reform, as articulated by President Obama, that “no one will
lose the benefits they currently have.” 
The truth is that under the Stupak-Pitts amendment, millions of women would
lose benefits that they currently have and millions more would be prohibited
from getting the kind of private sector health care coverage that most women
have today.  To put a fine point on
it, millions of women would lose private coverage for abortion services and
millions more would be prohibited from buying it even with their own money.  Simply put, women’s access to private
coverage for abortion would be restricted by health care reform.

Roundups Politics

Campaign Week in Review: Trump Selects Indiana Gov. Mike Pence to Join His Ticket

Ally Boguhn

And in other news, Donald Trump suggested that he can relate to Black people who are discriminated against because the system has been rigged against him, too. But he stopped short of saying he understood the experiences of Black Americans.

Donald Trump announced this week that he had selected Indiana Gov. Mike Pence (R) to join him as his vice presidential candidate on the Republican ticket, and earlier in the week, the presumptive presidential nominee suggested to Fox News that he could relate to Black Americans because the “system is rigged” against him too.

Pence Selected to Join the GOP Ticket 

After weeks of speculation over who the presumptive nominee would chose as his vice presidential candidate, Trump announced Friday that he had chosen Pence.

“I am pleased to announce that I have chosen Governor Mike Pence as my Vice Presidential running mate,” Trump tweeted Friday morning, adding that he will make the official announcement on Saturday during a news conference.

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The presumptive Republican nominee was originally slated to host the news conference Friday, but postponed in response to Thursday’s terrorist attack in Nice, France. As late as Thursday evening, Trump told Fox News that he had not made a final decision on who would join his ticket—even as news reports came in that he had already selected Pence for the position.

As Rewire Editor in Chief Jodi Jacobson explained in a Thursday commentary, Pence “has problems with the truth, isn’t inclined to rely on facts, has little to no concern for the health and welfare of the poorest, doesn’t understand health care, and bases his decisions on discriminatory beliefs.” Jacobson further explained: 

He has, for example, eagerly signed laws aimed at criminalizing abortion, forcing women to undergo unnecessary ultrasounds, banning coverage for abortion care in private insurance plans, and forcing doctors performing abortions to seek admitting privileges at hospitals (a requirement the Supreme Court recently struck down as medically unnecessary in the Whole Woman’s Health v. Hellerstedt case). He signed a ‘religious freedom’ law that would have legalized discrimination against LGBTQ persons and only ‘amended’ it after a national outcry. Because Pence has guided public health policy based on his ‘conservative values,’ rather than on evidence and best practices in public health, he presided over one of the fastest growing outbreaks of HIV infection in rural areas in the United States.

Trump Suggests He Can Relate to Black Americans Because “Even Against Me the System Is Rigged”

Trump suggested to Fox News’ Bill O’Reilly that he could relate to the discrimination Black Americans face since “the system [was] rigged” against him when he began his run for president.

When asked during a Tuesday appearance on The O’Reilly Factor what he would say to those “who believe that the system is biased against them” because they are Black, Trump leaped to highlight what he deemed to be discrimination he had faced. “I have been saying even against me the system is rigged. When I ran … for president, I mean, I could see what was going on with the system, and the system is rigged,” Trump responded.

“What I’m saying [is] they are not necessarily wrong,” Trump went on. “I mean, there are certain people where unfortunately that comes into play,” he said, concluding that he could “relate it, really, very much to myself.”

When O’Reilly asked Trump to specify whether he truly understood the “experience” of Black Americans, Trump said that he couldn’t, necessarily. 

“I would like to say yes, but you really can’t unless you are African American,” said Trump. “I would like to say yes, however.”

Trump has consistently struggled to connect with Black voters during his 2016 presidential run. Despite claiming to have “a great relationship with the blacks,” the presumptive Republican nominee has come under intense scrutiny for using inflammatory rhetoric and initially failing to condemn white supremacists who offered him their support.

According to a recent NBC News/Wall Street Journal/Marist poll released Tuesday, Trump is polling at 0 percent among Black voters in the key swing states of Ohio and Pennsylvania.

What Else We’re Reading

Newt Gingrich, who was one of Trump’s finalists for the vice presidential spot, reacted to the terrorist attack in Nice, France, by calling for all those in the United States with a “Muslim background” to face a test to determine if they “believe in sharia” and should be deported.

Presumptive Democratic nominee Hillary Clinton threw her support behind a public option for health insurance.

Bloomberg Politics’ Greg Stohr reports that election-related cases—including those involving voter-identification requirements and Ohio’s early-voting period—are moving toward the Supreme Court, where they are “risking deadlocks.”

According to a Reuters review of GOP-backed changes to North Carolina’s voting rules, “as many as 29,000 votes might not be counted in this year’s Nov. 8 presidential election if a federal appeals court upholds” a 2013 law that bans voters from casting ballots outside of their assigned precincts.

The Wall Street Journal reported on the election goals and strategies of anti-choice organization Susan B. Anthony List, explaining that the organization plans to work to ensure that policy goals such as a 20-week abortion ban and defunding Planned Parenthood “are the key issues that it will use to rally support for its congressional and White House candidates this fall, following recent setbacks in the courts.”

Multiple “dark money” nonprofits once connected to the Koch brothers’ network were fined by the Federal Election Commission (FEC) this week after hiding funding sources for 2010 political ads. They will now be required to “amend past FEC filings to disclose who provided their funding,” according to the Center for Responsive Politics. 

Politico’s Matthew Nussbaum and Ben Weyl explain how Trump’s budget would end up “making the deficit great again.”

“The 2016 Democratic platform has the strongest language on voting rights in the party’s history,” according to the Nation’s Ari Berman.

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.