Pro-Choice Groups Will Not Back Passage of Senate Bill With Nelson Language

Rachel Larris

In the wake of the weekend's Senate abortion language "compromise" pro-choice activists are still sorting out all the details and trying to decide where they should stand on the passage of the final health care reform bill.

In the wake of the weekend’s Senate abortion language "compromise"
pro-choice activists are still sorting out all the details and trying to decide
where they should stand on the passage of the final health care reform bill. Many pro-choice organizations have already indicated they will oppose final passage if the language stays in.

In the House, the 190-member
Congressional
Pro-Choice Caucus
said they "serious reservations about the abortion
provision included in the U.S. Senate’s health care bill."

Reps. Diana DeGette (D-Colo.)
and Louise M. Slaughter (D-N.Y.), the co-chairwomen of the abortion-rights
caucus, stopped short of saying they would oppose the Senate bill’s abortion
language as similarly-aligned groups have.

Leaders of the caucus said they will be meeting with "attorneys and insurance companies" before deciding how to proceed.

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Many pro-choice groups have already issued statements
condemning the language in the manager’s amendment, and a few were
already coming out in opposition to passage of the final bill.

Cecile Richards, president of Planned
Parenthood Federation of America,
is opposing the Senate version.

We understand that leaders in the
Senate and the White House want to move the process forward, but given this
provision, we have no choice but to oppose the Senate bill.

Several pro-choice organizations have made similar statments to say that if the Nelson language remains in the final bill they will oppose its passage. NARAL
Pro-Choice America
is likely to withhold support if the language stays in.

The language regarding abortion coverage comes at too high a price for reproductive health. Thus, we must oppose this new Nelson language. And NARAL Pro-Choice America withholds support from the overall health-reform legislation until we assess the totality of provisions in the final bill that comes out of a conference committee between the House and Senate.

Terry
O’Neill, president of NOW,
says they will call on senators to reject final passage of the health care
reform bill if the language in the manager’s amendment remains.

Some pro-choice groups issued struck a more conciliatory
note. Vicki Saporta, president and CEO of the National Abortion
Federation
, says "the Nelson language in the manager’s amendment places an
unreasonable burden on women by mandating that they take unnecessary steps in
paying for abortion coverage." She concludes by saying they will "work to
ensure that such abortion restrictions are removed from the health care reform
bill in conference."

Nancy Northup, president of the Center
for Reproductive Rights
, also issued a statement that CRR "will work with
the Congress going forward to fix this dubious equation."
Suzanne
T. Poppema, board chair of Physicians for Reproductive Choice and Health, said "we
will continue working with our pro-choice allies to improve the language in the
final health reform bill.”

Meanwhile the Marcia D. Greenberger, co-president of the National
Women’s Law Center
issued this statement.

The Senate bill, while containing
some major advances for women, falls short of what’s needed to truly protect
women’s health.

She concludes:

While the manager’s amendment marks
an important step toward the historic passage of health care reform
legislation, the final conference report must be strengthened. NWLC will not
rest until health care reform finally works for women and their families.

Analysis Law and Policy

California Bill Aimed at Anti-Choice Videos Draws Free Speech Concerns

Amy Littlefield

“We wanted to make sure that we updated ... laws to kind of reflect a changing world and to make sure that we actually protect the doctors who provide these important services to women,” California Assemblymember Jimmy Gomez said, adding that his legislation would also protect patient safety and access to abortion.

A California bill that would make it a crime to distribute secret recordings of health-care providers—like the ones David Daleiden used in his smear campaign against Planned Parenthood—has cleared a legislative hurdle, but faces opposition from media groups and civil liberties advocates, who say the legislation is overly broad.

It is already illegal in California to record, whether in audio or video form, a confidential communication without the consent of all parties involved. But California Assemblymember Jimmy Gomez, who introduced AB 1671, told Rewire that while current law specifically forbids the distribution of illegally recorded telephone calls, there is no similar protection for videos.

“We wanted to make sure that we updated those laws to kind of reflect a changing world and to make sure that we actually protect the doctors who provide these important services to women,” Gomez said, adding that his legislation would also protect patient safety and access to abortion.

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AB 1671 makes it a crime if someone who violates California’s existing law against secret recordings “intentionally discloses or distributes, in any manner, in any forum, including, but not limited to, Internet [websites] and social media, or for any purpose, the contents of a confidential communication with a health care provider that is obtained by that person.”

Violators could be jailed for up to a year and fined up to $2,500, penalties similar to those already in place for making illegal recordings. But the new measure specifies that for both recording and distribution, the fines apply to each violation; that means someone like Daleiden, who circulated his videos widely, could quickly rack up heavy fines. Repeat offenders could face fines of up to $10,000 per violation.

The effort to pass the bill comes as abortion providers face a rising tide of threats and secret recordings. Besides Daleiden’s efforts, covertly recorded footage of clinic staff has cropped up in the documentary HUSH and in videos released by the anti-choice group Live Action. Planned Parenthood reported a ninefold increase in harassment at its health centers in July last year, when Daleiden began releasing the deceptively edited videos he claimed showed the organization was illegally profiting from fetal tissue donation. (Multiple federal and state investigations have found no wrongdoing by Planned Parenthood.) The National Abortion Federation recorded an “unprecedented” spike in hate speech and threats against abortion providers last year, peaking with the fatal shooting of three people at a Colorado Springs Planned Parenthood.

Increased Threats

“It was so alarming and so extensive that our staff that normally tracks threats and violence against providers could not keep up,” NAF President and CEO Vicki Saporta told Rewire. The organization was forced to hire an outside security firm.

Beth Parker, chief legal counsel for Planned Parenthood Affiliates of California, told Rewire the new legislation is needed to protect the safety of abortion providers.

“If our providers aren’t safe, then they won’t provide, and we won’t have access to reproductive health care,” Parker said in a phone interview.

Daleiden’s group, the Center for Medical Progress, is based in California, and much of his covert recording took place there. Of the four lawsuits he and his group face over the recordings, three have been filed in federal court in California. Yet so far, the only criminal charges against Daleiden have been lodged in Texas, where a grand jury tasked with investigating Planned Parenthood instead indicted Daleiden and fellow anti-choice activist Sandra Merritt for purportedly using fake California driver’s licenses as part of their covert operation. The charges were later dropped for procedural reasons.

Last summer, California Attorney General Kamala Harris announced plans to review whether the Center for Medical Progress violated any laws, and in April, state investigators raided Daleiden’s apartment. Harris has not yet announced any charges. Daleiden has accused officials of seizing privileged information, a claim the attorney general’s office told Rewire it is working on resolving in court.

Harris, meanwhile is running for Senate; her campaign website describes her as “a champion for a woman’s right to choose.”

“We think there is an excellent case and the attorney general should have prosecuted,” Beth Parker of Planned Parenthood Affiliates of California told Rewire. “Daleiden did more than just publish the videos, as we know, I mean he falsified driver’s licenses, he falsified credit cards, he set up a fake company. I mean, we have, as you know, a major civil litigation against him and his conspirators. I just can’t answer to why the attorney general hasn’t prosecuted.”

Parker said AB 1671 could increase incentives for law enforcement to prosecute such cases.

“What we’ve heard as we’ve been working [on] the bill is that criminal law enforcement almost never prosecutes for the violation of illegal recording,” Parker said. “It’s just too small a crime in their view.”

Assemblymember Gomez also said he hopes his bill will facilitate the prosecution of people like Daleiden, and serve as a deterrent against people who want to use illegal recordings to “undermine the fact that people have this right to have control over their bodies.”

“That’s the hope, is that it actually does change that landscape, that DAs will be able to make a better case against individuals who illegally record and distribute,” Gomez said.

Vicki Saporta of the National Abortion Federation says the actions of law enforcement matter when it comes to the safety of abortion providers.

“There’s certainly a correlation between law enforcement’s response to criminal activity aimed at abortion providers and the escalation or de-escalation of that activity,” Saporta said, citing the federal government’s response to the murders of abortion providers in the 1990s, which included the deployment of federal marshals to guard providers and the formation of a task force by then-Attorney General Janet Reno. “We had more than a decade of decreases in extreme violence aimed at abortion providers, and that ended in 2009 with the murder of Dr. [George] Tiller.”

But media and civil liberties groups, including the Electronic Frontier Foundation and American Civil Liberties Union of California, have expressed concerns the bill could sweep up journalists and whistleblowers.

“The passing of this law is meant to chill speech, right, so that’s what they want to do,” Nikki Moore, legal counsel of the California Newspaper Publishers Association, which opposes the legislation, said in an interview with Rewire. In addition to potential criminal penalties, the measure would create new civil liabilities that Moore says could make journalists hesitant to publish sensitive information.  

“A news organization is going to look at it and say, ‘Are we going to get sued for this? Well, there’s a potential, so we probably shouldn’t distribute it,’” Moore said.

As an example of the kind of journalism that could be affected by the bill, Moore cited a Los Angeles Times investigation that analyzed and helped debunk Daleiden’s footage.

“Planned Parenthood’s bill would criminalize that behavior, so it’s short-sighted of them if nothing else,” Moore said.

Assemblymember Gomez disagrees about the scope of the bill. “We have tailored it narrowly to basically say it applies to the person who illegally recorded the video and also is distributing that video, so it doesn’t apply to, say, a news agency that actually ends up getting the video,” he said.

Late last week, the California Senate Appropriations Committee released AB 1671 to the state senate floor on a vote of 5 to 2, with Republicans opposing it. The latest version has been amended to remove language that implicated “a person who aids and abets” the distribution of secret recordings, wording civil liberties groups said could be used to sweep in journalists and lawyers. The latest draft also makes an exception for recordings provided solely to law enforcement for investigations.

But the ACLU of California and the California Newspaper Publishers Association said they still oppose the bill. (The Electronic Frontier Foundation said it is still reviewing the changes.)

“The likelihood of a news organization being charged for aiding and abetting is certainly reduced” under the new language, Moore said. But provisions already exist in the California penal code to implicate those accused of aiding and abetting criminal behavior.

“You can imagine scenarios where perhaps the newspaper published it and it’s an anonymous source, and so now they’re aiding and abetting the distribution, and they’re the only person that the prosecutor knows might have been involved,” Moore says.

In letter of opposition sent in June to Assemblymember Gomez, Kevin Baker, legislative director of the ACLU of California, raised concerns about how the measure singles out the communications of health-care providers.

“The same rationale for punishing communications of some preferred professions/industries could as easily be applied to other communications —e.g., by law enforcement, animal testing labs, gun makers, lethal injection drug producers, the petroleum industry, religious sects,” Baker wrote.

Gomez said there could be further changes to the bill as talks aimed at resolving such opposition continue. An earlier version passed the assembly easily by a vote of 52 to 26. The latest draft faces an August 31 deadline to pass the senate and a concurrence vote in the assembly before the end of the session. After that, Gomez said he hopes California Gov. Jerry Brown (D) will sign it.

“If we can strike the right balance [between the rights of privacy and free speech], my hope is that it’s hard for him not to support it,” Gomez said. 

News Health Systems

Anti-Choice Group Files Lawsuit Over Newly Signed Law That Protects Illinois Patients

Michelle D. Anderson

The policy, which is an amendment to the Illinois Health Care Right of Conscience Act, requires physicians and medical facilities to to provide patients upon request with information about their medical circumstances and treatment options consistent with "current standards of medical care," in cases where the doctor or institution won’t offer services on religious grounds.

CORRECTION: This piece has been updated to clarify the scope of SB 1564 and which groups are opposing it.

A conservative Christian legal group has followed through on its threat to use litigation to fight against a new state policy that protects patients at religiously-sponsored hospitals in Illinois.

The Alliance Defending Freedom (ADF) on Friday filed a lawsuit in the Circuit Court of the 17th Judicial Circuit in Winnebago County against Illinois Gov. Bruce Rauner and Bryan A. Schneider, the secretary of the Illinois Department of Financial & Professional Regulation.

Rauner, a Republican, signed the contested policy, SB 1564, into law on July 29.

The ADF, which warned Rauner about signing the bill in a publicized letter and statement in May, filed the complaint on behalf of several fake clinics, also known as crisis pregnancy centers. These included the Pregnancy Care Center of Rockford and Aid for Women, Inc. Anti-choice physician Dr. Anthony Caruso of A Bella Baby OBGYN—also known as Best Care for Women—was also named as a plaintiff.

“Alliance Defending Freedom is ready and willing to represent Illinois pro-life pregnancy centers if SB 1564 becomes law,” the group said in May. The ADF wrote on behalf of several anti-choice groups, claiming SB 1564 violated the Illinois state law and constitution and risked putting federal funding, such as Medicaid reimbursements, in jeopardy.

In February 2015, state Sen. Daniel Biss (D-Skokie) introduced the policy, which is an amendment to the Illinois Health Care Right of Conscience Act.

The revised law requires physicians and medical facilities to provide patients upon request with information about their medical circumstances and treatment options consistent with “current standards of medical care,” in cases where the doctor or institution won’t offer services on religious grounds.

The new policy also gives doctors and medical institutions the option to provide a referral or transfer the patient.

Unlike an earlier version of the legislation, the version passed by Rauner does not require hospitals to confirm that providers they share with patients actually perform procedures the institutions will not perform; they must only have a “reasonable belief” that they do, Rewire previously reported.

As previously noted by Rewire:

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.

The plaintiffs, which are also being represented by Mauck & Baker LLC attorney Noel Sterett, argued in a statement that the Illinois Constitution protects “liberty of conscience,” and quoted a passage from state law that says “no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions.”

Illinois Right to Life and the Thomas More Society joined the ADF in protesting the bill. The Catholic Conference of Illinois (CCI) and the Illinois Catholic Health Association (ICHA) initially protested the bill after it was introduced early last year. However, the two groups later negotiated with the ACLU to pass a different version of the bill that was introduced.

In support of the bill around the time of its introduction in early 2015, the American Civil Liberties Union of Illinois pushed its Put Patients First initiative to help stop the use of religion to deny health care to patients. The advocacy group noted that patients who are miscarrying or facing ectopic pregnancies, same-sex couples, and transgender people and persons seeking contraception such as vasectomies and tubal ligations are particularly vulnerable to these harmful practices.

A new study, “Referrals for Services Prohibited in Catholic Health Care Facilities,” set to be published in Perspectives on Sexual and Reproductive Health in September, suggested that Catholic hospitals often “dump” abortion patients and deny them critical referrals as result of following religious directives outlined by the U.S. Conference of Catholic Bishops (USCCB).

Recent figures from an ACLU and MergerWatch advocacy group collaboration suggest Catholic hospitals make up one in six hospital beds nationwide.

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