Dear Progressive Allies in Health Care Reform: Where Were You on the Stupak Amendment?

Amie Newman

Dear progressive allies, I know abortion has been made controversial and politics is a giant game. But we can win if we stick together. So where are you on the Stupak Amendment?

Update, 11/12/09: This morning, Thursday, November 12, one of our staff received an email from seeking to raise funds for Democrat Mary Jo Kilroy, representative from Ohio who voted against the Stupak Amendment.  The email clearly rallies the membership against the Stupak Amendment. We are waiting to see if is sending out a nationwide email on the Stupak Amendment but are appreciative of this effort. 

Dear progressive allies,

I know that abortion access is one of the most divisive issues of our time. I understand that politics is one giant game. But it’s a game that has true benefits when it’s played right – and when we stick together. 

Unfortunately, I’m not sure I have seen this kind of unity when it comes to the anti-choice Stupak Amendment. In my email inbox, I’m getting elation-infused emails from, my state Democratic party, Americans for Democratic Action, even SEIU. Organizations for which I have tremendous respect – truly. But even as your emails proclaim that "the fight is far from over", none of you mention the heinous hit women’s access to abortion care took when this House bill was passed.

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Not one of your emails even references the fight pro-choice legislators and women’s health advocates have ahead of us. Not one of your emails touches on the ways in which abortion access is critical to a broader progressive agenda. Women’s reproductive and sexual health care access is tied to women’s rights, of course, but also to environmental sustainability, maternal health, immigrants’ rights, LGBTI rights, newborn health, healthy economies, and more. How can it be that somehow abortion access has been largely ignored by other progressive organizations working for health care reform?

Women make up at least half of all of your constituencies. It would stand to follow, then, that the passage of this bill with the inclusion of the Stupak Amendment would be of tremendous interest, at the very least, to your supporters. Do most women know that Democrats sold them out for health care reform on Saturday? They woudn’t know it from your letter, Washington state Democrats, which came to me via email and asking for money, letting me know that Democrats made history (they sure did!):

Dear Amie,

Saturday evening, the House of Representatives made history when it passed a sweeping health care reform bill, but the battle for affordable health care is not over. 

The heatlh care battle will now move to the Senate. Desperate Republicans are planning a filibuster to destroy any meaningful legislation. Insurance companies are ramping up their campaign of arm-twisting and threats. Right-wing media advocates like Rush Limbaugh, Glenn Beck, and Bill O’Reilly are spreading the politics of fear and doubt in reaction to Saturday’s vote. 

Later in the letter you ask me for money to continue with your effort to fight Republicans. But what of the anti-choice Democrats who pushed for the Stupak Amendment in the first place? Why is there no mention of the Stupak Amendment nor an attempt to educate voters on how Democrats actually voted in regards to the amendment?

Dwight Pelz, the Washington state Democratic Party Chair, told me,

"I think we were all blind-sided by the Stupak Amendment. I do believe that Speaker Pelosi let the bill go out with the Stupak Amendment in it, knowing it could be addressed in the conference committee. It’s become one more hanging issue that has to be resolved – along with the public option, the threat of filibuster, etc."

This does little to placate me, however. The public option is a very different issue than the Stupak Amendment. The Stupak Amendment did not need to be a "hanging issue" at all – if Democrats had not caved to the US Conference of Catholic Bishops or kowtowed to their constituency by creating entirely new ways of enacting anti-choice policies that would roll back women’s rights by decades.

And What happened?

I am still receiving emails from you asking me for money to help your efforts but, still, women’s access to critical reproductive health care in health care reform does not warrant a single mention.

Even as you admit, "The bill that passed in the House was far from perfect, and we’ll keep fighting together to fix it" you still do not find it important enough to rally your progressive base against the Stupak Amendment in the House or work to educate members to ensure something similar does not wind up in the Senate version. 

You tell me,

Dear MoveOn member,

We won a big victory on health care on Saturday when the House of Representatives passed a bill that includes a public health
insurance option.

But dozens of conservative Democrats sided with Big Insurance to vote against it.

We’ve got to show that voters will make them pay a political price for standing in the way of health care reform—and
send a message to any Democrats in the Senate who are considering doing the same.

So we’re rushing to launch a major new TV ad campaign in the home districts of the Democrats
who voted against the bill
—spending more than ever before on ads to hold Democrats accountable.

What will you do to make sure women’s access to legal abortion care doesn’t disappear? Will your campaign address this?, I am not alone. There was even a twitter campaign that sprung from the frustration of similar-minded folks, spreading the word,

" can go suck it. email asking for $ 2 fight Dems who voted against #HCR. no mention of #stupak."

The sentiment is, um, clear. It may be that the lack of mention is a strategic move, Or it may be that you just don’t deem this issue important enough to mention to your members. But it is.

I will not donate money to you to create an ad campaign that does not address anti-choice Democrats’ plan to wipe out both private and public abortion coverage.

If you’d like an example of an organization whose actions you can emulate, why not check out the Human Rights Campaign? The Human Rights Campaign advocates for the rights of lesbian, gay, bisexual and transgender individuals. So lobbying against and publicly opposing an abortion access amendment is not what immediately comes to mind when you think of their legislative priorities. But, in fact, they do think it’s critical. Calling the Stupak Amendment "outrageous", HRC says, "Clearly, anti-choice lawmakers are not satisfied with a federal funding
ban and are using health care reform to carry out their agenda of
making abortion coverage even more difficult to obtain."

And in one line they do what many of our other progressive allies have yet to do, proclaim both their opposition to the amendment as well as their goal to remain unified with pro-choice advocates:

HRC opposes the Stupak-Pitts amendment and will work with our
pro-choice coalition allies to help see that it is removed or revised
as health care reform moves forward.

I hope that as we move forward with health care reform efforts, knowing that we are at a historic place, we can all remember that no one should be left behind. No one should feel sacrificed in this process. No one should come away from these congressional measures with less rights than we went in with. Will the bills be perfect? Of course not. I understand that. I also understand this is a tough battle, long in the making. But if you, our progressive allies, do not stick with us, who will? You understand, of course, that women are not a special interest group. That we are critical to winning and maintaining Democratic seats; not to mention ensuring a Democratic presidency. 

I am asking our progressive allies, as we continue fighting for true health care reform, to remember this: Women’s rights are not a bargaining chip and using legal access to
abortion as a pawn in health care reform is not something women will
stand for. But if you stand with us, we’ll all be stronger for it.  


Amie Newman



News Health Systems

Illinois Bill: Catholic Hospitals Must Inform Patients Where They Can Obtain Denied Care

Nicole Knight Shine

The legislation amends the state Health Care Right of Conscience Act to require religiously affiliated facilities to inform patients in writing about health-care providers "who they reasonably believe" offer procedures that the institutions will not perform.

Religiously affiliated hospitals in Illinois must advise patients where they can find treatments that the institutions won’t offer on religious grounds, under new legislation sitting on the governor’s desk.

The patient information measure, SB 1564, comes at a time when almost about 30 percent of hospital beds in the state—and one in six in the nation—are in Catholic institutions that bar certain reproductive health and end-of-life treatments, according to recent figures from the advocacy group MergerWatch.

The legislation amends the state Health Care Right of Conscience Act to require religiously affiliated facilities to inform patients in writing about health-care providers “who they reasonably believe” offer procedures that the institutions will not perform, or to refer or transfer patients to those alternate providers. Hospitals must do this in response to patient requests for such procedures. The legislation cleared the state house on a 61-54 vote and the senate on a 34-19 vote. Democrats control both chambers.

The office of Illinois Gov. Bruce Rauner (R) did not respond to request for comment on whether he would sign the bill.

Catholic facilities often follow U.S. Conference of Catholic Bishops religious directives  that generally bar treatments such as sterilization, in vitro fertilization, and abortion care. The federal Church Amendment and some state laws protect these faith-based objections.

Even so, growing concerns over facilities that deny treatment that patients want—and that doctors advise—has recently prompted lawmakers in Illinois, Michigan, and Washington state to advance patient information measures.

A Michigan lawsuit now on appeal alleges a Catholic facility caused unnecessary trauma by denying a patient treatment. In 2010, then-18-weeks pregnant Tamesha Means arrived at a Catholic hospital, Mercy Health Partners in Muskegon, Michigan, bleeding and miscarrying. On two occasions, the hospital turned away Means, as Rewire reported. It wasn’t until Means started delivering on her third hospital visit that she received treatment.

The Illinois legislation represents a compromise among the Illinois Catholic Health Association, the Illinois State Medical Society, and the Illinois affiliate of the American Civil Liberties Union (ACLU), representatives from the groups told Rewire.

Lorie Chaiten, director of the ACLU of Illinois’ Reproductive Rights Project, said in an online statement that the legislation “protects patients when health care providers exercise religious refusals.”

Research indicates that patients aren’t always aware that religiously affiliated facilities don’t provide a full spectrum of reproductive health services, according to a 2014 paper published in Contraception.

Patrick Cacchione, executive director of the Illinois Catholic Health Association, said the organization, which represents the state’s 43 Catholic hospitals, opposed an early version of the bill requiring religious health-care facilities to give patients a written list of known medical providers that perform the treatments that the religious institutions oppose.

Cacchione said such a direct referral would have made Catholic hospitals “complicit.”

“We will provide all the information you need, but we will not make a direct referral,” he told Rewire in a phone interview Monday. The new version of the legislation does not require hospitals to confirm that providers perform the treatments; the facilities must only have a “reasonable belief” that they do.

He said Illinois hospitals are already doing what the legislation now requires.

Approximately one in five doctors surveyed at religiously affiliated institutions “had experienced conflict with the institution over religiously based patient care policies,” according to the 2010 paper, “Religious Hospitals and Primary Care Physicians: Conflicts Over Policies for Patient Care,” published in the Journal of General Internal Medicine.

In an emailed statement, Dr. Thomas M. Anderson, a Chicago radiologist and president of the Illinois State Medical Society, told Rewire, “The Society strongly believes physicians should be able to exercise their right of conscience and changes made to SB 1564 protect that right.”

Analysis Law and Policy

How Conservatives Are Using a 2012 Supreme Court Health-Care Case to Challenge Trans Rights

Jessica Mason Pieklo

Buried in the legal complaint challenging the Obama administration's recent agency actions on transgender rights is a legal claim designed to appeal directly to conservative judges.

Back in 2012, when conservatives’ first challenge to the Affordable Care Act (ACA) landed before the U.S. Supreme Court, the Court ruled that much of the health-care reform law was constitutional. But buried in that opinion was a poison pill—one with which conservatives are trying to kill off the Obama administration’s recent actions to protect transgender rights.

Eleven states and their officials sued the Obama administration in Texas federal court on Wednesday over its recent federal guidance advising public schools to allow transgender students to use bathrooms that align with their gender identity. Much of the joint lawsuit argues, essentially, that the Obama administration is illegally trying to rewrite federal civil rights statutes in a series of administrative agency actions called “guidances.” Such claims are effectively baseless, as Rewire Senior Legal Analyst Imani Gandy has already done an excellent job demonstrating here and here.

But still, buried in the lawsuit filed Wednesday is one additional claim that could prove irresistible for a conservative federal court judge in Texas—namely, District Judge Reed O’Connor, a 2007 President George W. Bush appointee who is expected to hear the case.

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The bulk of the Obama administration’s guidance lets some schools and employers know that it is the official, legal position that current civil rights statutes like Title VII and Title IX protect transgender students from discrimination on the basis of their sex. Should those entities instate policies that conflict with that interpretation, then they risk a loss of federal funding. Conservatives argue that threat of funding loss is unconstitutional. And they point to National Federation of Independent Businesses (NFIB) v. Sebelius, the decision that largely upheld the Affordable Care Act, for support.

“The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion,” the Court wrote in NFIB. “[T]he expansion accomplishes a shift in kind, not merely degree,” the Court continued. “The original program was designed to cover medical services for particular categories of vulnerable individuals. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level.” The effect of that decision was to prevent the Obama administration from using that funding as the carrot to induce all states into setting up their own health-care exchanges and expanding Medicaid.

That question—whether the Obama administration’s guidance in the reading of Title VII and Title IX is a fundamental shift, or more of a shift in degree—is exactly what conservatives are pressing a federal district court judge to answer.

“By placing in jeopardy a substantial percentage of Plaintiffs’ budgets if they refuse to comply with the new rules, regulations, guidance and interpretations of Defendants, Defendants have left Plaintiffs no real choice but to acquiesce in such policy,” the complaint challenging the Obama administration guidance states.

That, right there, is the same “coercion” argument advanced and accepted by the Supreme Court in 2012.

The lawsuit challenging the transgender guidances borrows heavily from the language in NFIB‘s opinion, including quoting that the federal government “puts a gun to the head” of states when it makes the receipt of federal dollars dependent on doing or not doing a particular action.

But the thing is, the Obama administration’s guidance on transgender rights and its notice that certain federal funds hinge on compliance is not at all like the fight in NFIB. This is because of one key, compelling reason: In NFIB, states were not required to buy into the Affordable Care Act. The law was just written in a way that was designed to entice them into doing so.

That is not the case with the Obama administration’s guidance on transgender rights. Schools and federal agencies—in other words, recipients of federal funds—are already required to comply with federal law. Should they not, whether it be in the form of implementing discriminatory bathroom policies or refusing to hire an employee based on their gender identity, those federal funds recipients risk losing those federal dollars.

Think of it this way. The law describes the kind of “spending” relationship between the states and the federal government like it’s a contract. The federal government “offers” the states money to support certain state programs, whether they be public schools or health-care centers. But that “offer” has conditions, and one of those conditions is that the state recipient of those dollars obeys federal law. And in this case, obeying federal law means allowing transgender people to use the bathroom that aligns with their identity.

But the challengers argue that, effectively, the Obama administration has changed the terms of their contract; they say Title VII and IX were never intended to protect transgender students, and instead demand the laws require sex-segregated facilities like bathrooms and locker rooms.

“Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights,” the complaint states.

The argument advanced by conservatives that federal agencies lack the power to interpret the statutes they are charged with enforcing is disingenuous at best. But it’s also an argument conservative federal courts have been willing to accept in the past, so it’s entirely likely a conservative judge would accept that argument here too. Which is exactly why of the 11 states joined in the lawsuit, conservatives chose Texas—and the ultra-conservative Fifth Circuit Court of Appeals—to bring this claim.

There are a lot of unanswered questions regarding the legitimacy of Wednesday’s lawsuit. It’s not entirely clear the plaintiffs have standing to bring this suit in the first place, and that’s not even touching on all the legal deficiencies Gandy already mentioned. But if we’ve learned anything from the health-care reform litigation, it’s that conservatives care very little if the facts and law are on their side, so long as at least one federal court is willing to enable their attacks on policies they lack the legislative and political power to block in the first place.