Health Reform 2.0: Contraception is Integral Preventive Care for Women

Adam Sonfield

As health care reform goes from law to policy, contraceptive services and supplies need to be fully covered under "preventive healthcare."

This piece was originally published by the Guttmacher Institute and is reprinted here with permission.

Under the health care reform law enacted in March, all new private insurance plans written after mid-September will be required to cover various, specified categories of preventive services, free of any cost-sharing. One such category is “preventive care and screenings” for women.

With a deadline looming, the U.S. Department of Health and Human Services (DHHS) will need to move quickly to develop an official interpretation of this requirement and of the specific preventive services it requires. Reproductive health providers and advocates hope and expect that it will be appropriately delineated to fully cover contraceptive services and supplies.

The Letter of the Law

The Patient Protection and Affordable Care Act, as the health care reform law is officially titled, holds off on its most sweeping changes for several years. By 2014, two major pieces of the law will go into effect: a massive expansion to Medicaid eligibility for the lowest income Americans, and a new marketplace and subsidies to help somewhat higher income Americans purchase private insurance (related article, page 25). To help bridge that four-year gap, both substantively and politically, the law includes a series of smaller changes to public and private insurance that are designed to provide meaningful, immediate benefits to millions of people.

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One of these early changes, scheduled to go into effect six months after the March 23 signing of the bill, requires all new private health plans— whether for groups or individuals—to provide coverage of a slate of preventive health services without any cost-sharing. (The term “cost-sharing” includes a variety of ways that insurance plans require patients to share in the cost of a visit, service or supply, including flat copayments, percentage-based coinsurance and deductibles for all expenses that must be met before coverage kicks in at all.) The provision requires this coverage for four groups of services:

  • tems or services currently recommended by the U.S. Preventive Services Task Force (USPSTF);
  • immunizations currently recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC);
  • preventive care and screenings for infants, children and adolescents, as recommended by guidelines supported by the Health Resources and Services Administration (HRSA); and
  • preventive care and screenings for women, also as recommended by HRSA-supported guidelines.

The first two of these groups are very specific— and extremely narrow. The USPSTF currently recommends only about three dozen services. Several of these are related to reproductive health: screening for breast and cervical cancer, and screening and counseling for HIV and several other specific sexually transmitted infections (STIs). The ACIP recommendations, meanwhile, include vaccination for human papilloma virus (HPV) and hepatitis B; both infections can be transmitted sexually, and both vaccines may be provided as part of a family planning visit for adolescents or young adults. The HPV vaccine, especially, is expensive, and may currently require substantial cost-sharing, when it is covered at all.

In writing this provision of health care reform, however, Congress recognized that the USPSTF and ACIP recommendations are too limited to serve as the sole guideline for insurance coverage of preventive services. The USPSTF has the capacity to look at only about 15 services each year, and focuses its efforts on crafting recommendations that may improve current clinical practices and on keeping its highest priority recommendations up to date. At the same time, it often varies its recommendations for different demographic groups, so that it recommends a service for some groups and reserves judgment for others; in the latter case, it is expected that patients and their health care providers would discuss the pros and cons of the service and come to their own conclusion. Moreover, the task force focuses on specific screenings and counseling, rather than the broader, overall preventive care visit. Under many insurance plans today, patients are expected to make a single copayment for a wellness visit, rather than pay for specific pieces of that visit—so, eliminating cost-sharing for specific pieces would in many cases be meaningless.

Because of concerns over the limitations of these recommendations, the authors of the preventive health amendment originally included a third category for required, cost-sharing–free coverage: preventive care and screenings for infants, children and adolescents, as delineated in guidelines written by the American Academy of Pediatrics and supported by HRSA.Those guidelines include a wide array of preventive services for minors that go well beyond the small list of screenings, vaccines and counseling recommended by the USPSTF and ACIP. Included in its 2010 list of insurance billing codes for pediatric preventive care are those for contraceptive management, routine gynecologic examination and pelvic exams. Indeed, the guidelines include “promoting healthy sexual development and sexuality” as one of its 10 health promotion themes, asserting that “information about contraception, including emergency contraception and STIs, should be offered to all sexually active adolescents and those who plan to become sexually active.”

Meanwhile, public concerns over the USPSTF recommendations crystallized late in 2009 when the task force issued revised guidance on mammograms, recommending that regular screenings for breast cancer begin at age 50, rather than age 40, and take place every two years, rather than annually. Although not intended to dissuade earlier or more frequent mammograms for specific women considered by their doctors to be at heightened risk, a wide range of critics decried the new guidelines for sending a mixed message to women about the importance of mammography and for potentially leading insurers to deny coverage for screenings outside the guidelines’ new parameters. Conservative opponents of the administration’s health care reform legislation seized on the USPSTF recommendations as evidence that reform would lead to federal “rationing” of care.

In response, the Senate approved an amendment to health care reform that effectively negated the new mammography recommendation. More importantly, Sen. Barbara Mikulski (DMD) successfully leveraged the controversy to secure passage of an amendment adding women’s preventive care and screenings as a fourth category of mandated preventive services.The amendment was adopted by a vote of 61-39.

The Mikulski amendment is tied by law to guidelines from HRSA, but in contrast to the category for minors’ care, such guidelines do not currently exist. Accordingly, HRSA must quickly flesh them out in the coming months if they are to be up and running by the time the preventive care provision takes effect in September, or anytime soon thereafter.

Contraception as Preventive Care

Although much of the floor debate over Mikulski’s amendment centered on mammography, the provision itself was clearly designed to guarantee coverage without cost-sharing of a far broader group of preventive services, notably including family planning. At least six senators joined Mikulski in praising the amendment’s inclusion of family planning. According to Sen. Al Franken (DMN), for example, “several crucial women’s health services are omitted” from the USPSTF recommendations and “Senator Mikulski’s amendment closes this gap” by including other key services, “such as the well woman visit, prenatal care, and family planning.” Similarly, Sen. Barbara Boxer (DCA) asserted that “these health care services include annual mammograms for women at age 40, pregnancy and postpartum depression screenings, screenings for domestic violence, annual women’s health screenings, and family planning services.” Her state colleague, Sen. Diane Feinstein (DCA), also included family planning in describing the scope of the amendment, and then summed it up succinctly: “In other words, the amendment increases access to the basic services that are a part of every woman’s health care needs at some point in her life.” Even Sen. Ben Nelson (DNE), who voted against the amendment because of spurious claims that it could somehow mandate coverage of abortion, said he did so “with regret because I strongly support the underlying goal of furthering preventive care for women, including mammograms, screenings, and family planning.”

To date, HRSA has not indicated how it will go about drafting the guideline it is now directed to write. With limited staff and resources, and with a large number of concurrent deadlines in September to implement pieces of health care reform, it appears that HRSA may look to an Institute of Medicine panel or another outside body to do the heavy lifting; even so, the guidelines may not be ready this fall. As it considers the appropriate scope of recommendations for women’s preventive and screening services, such a panel will have ample precedents to point to for including contraceptive counseling, services and supplies.

National Goals

The case for contraception as preventive care is perhaps made best by the federal Healthy People series, updated every decade by DHHS to set the official public health goals for the United States. As described by one of the preliminary documents for the upcoming goals for the year 2020, “Healthy People frames the Nation’s prevention agenda through a set of science-based, 10-year national objectives for promoting health and preventing disease.”

The current iteration of these goals, Healthy People 2010, describes the importance of family planning services in terms of preventing the social, economic and medical costs of unintended pregnancy. In this context, it is the medical costs that are most relevant: “Medically, unintended pregnancies are serious in terms of the lost opportunity to prepare for an optimal pregnancy, the increased likelihood of infant and maternal illness, and the likelihood of abortion.…The mother is less likely to seek prenatal care in the first trimester and more likely not to obtain prenatal care at all. She is less likely to breastfeed and more likely to expose the fetus to harmful substances, such as tobacco or alcohol. The child of such a pregnancy is at greater risk of low birth weight, dying in its first year, being abused, and not receiving sufficient resources for healthy development.”

The CDC cites similar reasons for its own work to prevent unintended pregnancy and for labeling family planning as one of the top 10 public health achievements of the 20th century. And, indeed, there is clear evidence that contraception is effective preventive care. For example, publicly funded contraceptive services and supplies alone help women in the United States avoid nearly two million unintended pregnancies each year. In the absence of such services (from family planning centers and from doctors serving Medicaid patients), estimated U.S. levels of unintended pregnancy, abortion and unintended birth would be nearly two-thirds higher among women overall and nearly twice as high among poor women. The evidence is just as clear internationally: In 2008, use of modern contraceptives helped women prevent 188 million unintended pregnancies and, by doing so, prevented some 1.2 million newborn deaths and 230,000 maternal deaths and saved tens of millions of years of productive life (related article, page 12).

It is no surprise, therefore, that family planning was one of the five priority areas listed under “preventive health services” in the first Healthy People in 1979 and has been a focus area in every edition. In 2010, there were 13 objectives within the family planning focus area, mostly related to preventing unintended pregnancy and improving contraceptive access and use. Notably for health care reform’s preventive care provision, one of those objectives was to “increase the proportion of health insurance plans that cover contraceptive supplies and services.”This is important, according to the report, “because in the absence of comprehensive coverage, many women may opt for whatever method may be covered by their health plan rather than the method most appropriate for their individual needs and circumstances. Other women may opt not to use contraception if it is not covered under their insurance plan.”

Public Health Programs

Several other key precedents come directly from federal public health programs. One important example is in the federal law authorizing funding for community health centers, Sec. 330 of the Public Health Service Act. Within the list of services that centers are required to provide is a collection of “preventive health services” that specifically includes family planning, alongside such others as prenatal and perinatal care, cancer screening, immunizations and well-child care. Similarly, states have for many years provided funding for family planning services under a variety of federal block grants with a preventive care focus, including the Maternal and Child Health Block Grant and the Preventive Health and Health Services Block Grant. In fact, the first federal funding for contraception came through the maternal and child health program in the early 1940s.

The most recent federal precedent for including contraception as preventive care is from the Medicaid program. A regulation issued in April 2010, in describing options for states in designing alternative Medicaid benefit packages under a 2006 law, includes a requirement for “family planning services and supplies and other appropriate preventive services, as designated by the Secretary [of DHHS].” Medicaid also provides a different type of precedent: The program has for decades not only required family planning in all state programs, but also has exempted family planning services and supplies from all cost-sharing requirements. Those Medicaid requirements—along with the establishment of the Title X national family planning program around the same time in the early 1970s—were designed in large part to address the then new research findings that closely spaced births and childbearing very early or late in a woman’s reproductive years could lead to adverse health outcomes for both mothers and their children.

Provider Guidelines

Numerous health care provider associations have also touted the importance of family planning as preventive care, including the American Medical Association, the American Academy of Family Physicians, the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists (ACOG) and the Society for Adolescent Medicine.

Family planning has been a longstanding focus area for the American Public Health Association (APHA), perhaps the nation’s preeminent umbrella group for public health and preventive care. Its Population, Reproductive and Sexual Health section—one of 27 sections within the association—was founded in 1975, and APHA has been an active supporter of increased access to contraception to help women and couples time, space and ultimately limit the number of their children.The March of Dimes, too, has lent its support to publicly funded family planning, noting that the “central purpose of family planning is to promote healthy births,” by improving birth spacing and helping women obtain timely prenatal care.

Among the provider associations, ACOG has been particularly vocal in its support for an appropriately broad interpretation of the Mikulski language, citing the group’s own, extensive guidelines for women’s preventive care. In comparing its own guidelines with the current USPSTF recommendations, ACOG highlights several crucial limitations of the latter, including its lack of a current recommendation on family planning counseling and on prescription contraceptive drugs, devices and related services. The association has long argued that “contraception is basic, preventive health care and should be readily available and treated the same as prophylactic therapies for other medical conditions.”

Beyond their primary purpose of preventing unplanned pregnancies and promoting planned, healthy ones, hormonal contraceptives have for years been prescribed “to alleviate heavy bleeding, irregular periods, and acne and to protect against a number of other health problems that affect women, such as ovarian cysts, bone loss, benign breast disease, the symptoms of polycystic ovary syndrome, and anemia.”

Impact on Health and Costs

The benefits to women and couples of universal insurance coverage of contraceptive services and supplies could be substantial. First, a nationwide coverage mandate would close several key gaps in current insurance practices. Surveys from the past decade do indicate that in the wake of a major campaign in the 1990s to change what had been inadequate insurance coverage of contraception, coverage is now strong. Nearly nine in 10 typical employer-purchased insurance plans covered the five most common methods in 2002, with similarly strong coverage of both the methods themselves and related services (such as the insertion and removal of a long-acting method, or the act of injecting an injectable contraceptive). However, current coverage is likely to be less common and comprehensive than those data indicate for some types of plans, especially those offered by small employers and those sold to individuals. Moreover, if the new preventive care provision in health care reform were interpreted to require coverage of contraceptive counseling, that would be a meaningful breakthrough: Studies have demonstrated little about whether plans are adequately covering the time that health care providers need for contraceptive counseling services, but anecdotal reports indicate that such reimbursement is limited at best and is a major disincentive for providers.

The other major benefit from including contraception under the new preventive care provision would come from the elimination of cost-sharing. Average copayments in employer-sponsored insurance have increased considerably over the past decade, to as much as $46 in 2009 for many brand-name drugs (see chart). With copayments so high, private insurance is in many cases today providing only a marginal discount from what a woman would pay out-of-pocket at a drug store without insurance. Other plans require customers to pay a percentage of the cost of a service or supply, rather than a flat copayment. This coinsurance is a particularly high hurdle for long-acting methods like the IUD and implant, which have hundreds of dollars of upfront costs for the device and its insertion, but which provide the greatest long-term effectiveness and cost-effectiveness, because they allow for fewer opportunities for misuse. Numerous studies have demonstrated that even seemingly small cost-sharing requirements can dramatically reduce use of even needed preventive care, particularly among lower-income Americans—a fact that is at the core of why Congress has acted to eliminate cost-sharing for such services. Indeed, several of the largest insurers in the country, as well as their umbrella group, America’s Health Insurance Plans, publicly called for including the broader preventive care provision in health care reform.

COVERED AT A COST
Average copayments have increased rapidly over the past decade for the brand-name drugs placed in the second and third tiers of insurers’ prescription drug benefits.
COVERED AT A COST
Source: Kaiser Family Foundation and Health Research & Educational Trust, 2009.

As with almost any attempt to mandate coverage of specific services in private insurance, the primary objection to including contraception under this provision may be concerns that doing so would lead to increased premiums and more costs for the entire health care system. The evidence on that front may be mixed for preventive care in general, but that is not the case for contraception. Although there are relatively little data from the private sector, publicly funded contraceptive services and supplies have been demonstrated time and again to be highly cost-effective. For example, every $1 invested in public dollars for contraception saves $3.74 in Medicaid expenditures that otherwise would have been needed to provide pregnancy-related care (prenatal, labor, delivery and postpartum care) for women’s unintended births, as well as one year of medical care for their infants. Significantly, these savings do not account for any of the broader health, social or economic benefits to women and families from contraceptive services and supplies and the ability to time, space and prepare for pregnancies.

The data that do exist for the private sector are likewise positive. According to a 1998 analysis conducted for the Guttmacher Institute by Buck Consultants, an employee benefit and actuarial consulting firm, covering contraception is a relatively low-cost proposition. The addition of coverage for the full range of reversible prescription methods to a plan that included no contraceptive coverage at all would increase costs by about $21 per employee per year. More recently, a 2007 guide for employers from the National Business Group on Health (a membership group for large private- and public-sector employers to address their health policy concerns) recommended that all employer-sponsored health plans include comprehensive coverage of unintended pregnancy prevention services, free of any cost-sharing, as part of a recommended minimum set of benefits for preventive care. The addition of that coverage—which includes the full range of prescription contraceptive methods, sterilization services, lab tests, counseling services and patient education—to a plan that currently includes no coverage at all was estimated by PricewaterhouseCoopers to cost about $40 per member per year.These actuarial estimates do not include any potential cost-savings from contraceptive care, although the 2007 guidelines do predict, based on prior research, that the savings will exceed the costs.The $40 figure is miniscule when compared with overall insurance premiums: In 2009, average annual premiums were more than $4,800 for an individual employee and almost $13,400 for family coverage, according to the Kaiser Family Foundation.

Meanwhile, those estimates that do include the potential cost-savings associated with contraceptive coverage have been extremely encouraging. The federal government, the nation’s largest employer, reported that it experienced no increase in costs at all after a 1998 law required coverage of contraceptives for federal employees. In fact, employers should benefit from improved coverage and use of contraception. According to the Washington Business Group on Health and William M. Mercer, an employee benefits consulting firm, it costs employers 15–17% more to not provide contraceptive coverage in employee health plans than to provide such coverage, after accounting for both the direct medical costs of pregnancy and indirect costs such as employee absence and reduced productivity. These savings in private health insurance from covering contraception should only increase in the wake of health care reform, with its new requirements that will close gaps in the coverage of maternity care, prevent insurers from excluding coverage for preexisting conditions, and encourage greater and more stable levels of insurance coverage overall.

All told, the federal programs, clinical guidelines, evidence of effectiveness and ongoing need point to the same conclusion. As federal officials work to implement the preventive care provision in health care reform and establish guidelines for women’s preventive care and screenings, they have every reason to comprehensively incorporate family planning services. This must include coverage for the full range of prescription contraceptive drugs and devices approved by the U.S. Food and Drug Administration; related clinical services necessary to appropriately supply those drugs and devices, including insertion and removal; and the counseling and patient education that health care providers should routinely provide to help women and men gauge their own contraceptive needs and practice contraception most effectively.

Analysis Economic Justice

New Pennsylvania Bill Is Just One Step Toward Helping Survivors of Economic Abuse

Annamarya Scaccia

The legislation would allow victims of domestic violence, sexual assault, and stalking to terminate their lease early or request locks be changed if they have "a reasonable fear" that they will continue to be harmed while living in their unit.

Domestic violence survivors often face a number of barriers that prevent them from leaving abusive situations. But a new bill awaiting action in the Pennsylvania legislature would let survivors in the state break their rental lease without financial repercussions—potentially allowing them to avoid penalties to their credit and rental history that could make getting back on their feet more challenging. Still, the bill is just one of several policy improvements necessary to help survivors escape abusive situations.

Right now in Pennsylvania, landlords can take action against survivors who break their lease as a means of escape. That could mean a lien against the survivor or an eviction on their credit report. The legislation, HB 1051, introduced by Rep. Madeleine Dean (D-Montgomery County), would allow victims of domestic violence, sexual assault, and stalking to terminate their lease early or request locks be changed if they have “a reasonable fear” that they will continue to be harmed while living in their unit. The bipartisan bill, which would amend the state’s Landlord and Tenant Act, requires survivors to give at least 30 days’ notice of their intent to be released from the lease.

Research shows survivors often return to or delay leaving abusive relationships because they either can’t afford to live independently or have little to no access to financial resources. In fact, a significant portion of homeless women have cited domestic violence as the leading cause of homelessness.

“As a society, we get mad at survivors when they don’t leave,” Kim Pentico, economic justice program director of the National Network to End Domestic Violence (NNEDV), told Rewire. “You know what, her name’s on this lease … That’s going to impact her ability to get and stay safe elsewhere.”

“This is one less thing that’s going to follow her in a negative way,” she added.

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Pennsylvania landlords have raised concerns about the law over liability and rights of other tenants, said Ellen Kramer, deputy director of program services at the Pennsylvania Coalition Against Domestic Violence, which submitted a letter in support of the bill to the state House of Representatives. Lawmakers have considered amendments to the bill—like requiring “proof of abuse” from the courts or a victim’s advocate—that would heed landlord demands while still attempting to protect survivors.

But when you ask a survivor to go to the police or hospital to obtain proof of abuse, “it may put her in a more dangerous position,” Kramer told Rewire, noting that concessions that benefit landlords shift the bill from being victim-centered.

“It’s a delicate balancing act,” she said.

The Urban Affairs Committee voted HB 1051 out of committee on May 17. The legislation was laid on the table on June 23, but has yet to come up for a floor vote. Whether the bill will move forward is uncertain, but proponents say that they have support at the highest levels of government in Pennsylvania.

“We have a strong advocate in Governor Wolf,” Kramer told Rewire.

Financial Abuse in Its Many Forms

Economic violence is a significant characteristic of domestic violence, advocates say. An abuser will often control finances in the home, forcing their victim to hand over their paycheck and not allow them access to bank accounts, credit cards, and other pecuniary resources. Many abusers will also forbid their partner from going to school or having a job. If the victim does work or is a student, the abuser may then harass them on campus or at their place of employment until they withdraw or quit—if they’re not fired.

Abusers may also rack up debt, ruin their partner’s credit score, and cancel lines of credit and insurance policies in order to exact power and control over their victim. Most offenders will also take money or property away from their partner without permission.

“Financial abuse is so multifaceted,” Pentico told Rewire.

Pentico relayed the story of one survivor whose abuser smashed her cell phone because it would put her in financial dire straits. As Pentico told it, the abuser stole her mobile phone, which was under a two-year contract, and broke it knowing that the victim could not afford a new handset. The survivor was then left with a choice of paying for a bill on a phone she could no longer use or not paying the bill at all and being turned into collections, which would jeopardize her ability to rent her own apartment or switch to a new carrier. “Things she can’t do because he smashed her smartphone,” Pentico said.

“Now the general public [could] see that as, ‘It’s a phone, get over it,'” she told Rewire. “Smashing that phone in a two-year contract has such ripple effects on her financial world and on her ability to get and stay safe.”

In fact, members of the public who have not experienced domestic abuse may overlook financial abuse or minimize it. A 2009 national poll from the Allstate Foundation—the philanthropic arm of the Illinois-based insurance company—revealed that nearly 70 percent of Americans do not associate financial abuse with domestic violence, even though it’s an all-too-common tactic among abusers: Economic violence happens in 98 percent of abusive relationships, according to the NNEDV.

Why people fail to make this connection can be attributed, in part, to the lack of legal remedy for financial abuse, said Carol Tracy, executive director of the Women’s Law Project, a public interest law center in Pennsylvania. A survivor can press criminal charges or seek a civil protection order when there’s physical abuse, but the country’s legal justice system has no equivalent for economic or emotional violence, whether the victim is married to their abuser or not, she said.

Some advocates, in lieu of recourse through the courts, have teamed up with foundations to give survivors individual tools to use in economically abusive situations. In 2005, the NNEDV partnered with the Allstate Foundation to develop a curriculum that would teach survivors about financial abuse and financial safety. Through the program, survivors are taught about financial safety planning including individual development accounts, IRA, microlending credit repair, and credit building services.

State coalitions can receive grant funding to develop or improve economic justice programs for survivors, as well as conduct economic empowerment and curriculum trainings with local domestic violence groups. In 2013—the most recent year for which data is available—the foundation awarded $1 million to state domestic violence coalitions in grants that ranged from $50,000 to $100,000 to help support their economic justice work.

So far, according to Pentico, the curriculum has performed “really great” among domestic violence coalitions and its clients. Survivors say they are better informed about economic justice and feel more empowered about their own skills and abilities, which has allowed them to make sounder financial decisions.

This, in turn, has allowed them to escape abuse and stay safe, she said.

“We for a long time chose to see money and finances as sort of this frivolous piece of the safety puzzle,” Pentico told Rewire. “It really is, for many, the piece of the puzzle.”

Public Policy as a Means of Economic Justice

Still, advocates say that public policy, particularly disparate workplace conditions, plays an enormous role in furthering financial abuse. The populations who are more likely to be victims of domestic violence—women, especially trans women and those of color—are also the groups more likely to be underemployed or unemployed. A 2015 LGBT Health & Human Services Network survey, for example, found that 28 percent of working-age transgender women were unemployed and out of school.

“That’s where [economic abuse] gets complicated,” Tracy told Rewire. “Some of it is the fault of the abuser, and some of it is the public policy failures that just don’t value women’s participation in the workforce.”

Victims working low-wage jobs often cannot save enough to leave an abusive situation, advocates say. What they do make goes toward paying bills, basic living needs, and their share of housing expenses—plus child-care costs if they have kids. In the end, they’re not left with much to live on—that is, if their abuser hasn’t taken away access to their own earnings.

“The ability to plan your future, the ability to get away from [abuse], that takes financial resources,” Tracy told Rewire. “It’s just so much harder when you don’t have them and when you’re frightened, and you’re frightened for yourself and your kids.”

Public labor policy can also inhibit a survivor’s ability to escape. This year, five states, Washington, D.C., and 24 jurisdictions will have passed or enacted paid sick leave legislation, according to A Better Balance, a family and work legal center in New York City. As of April, only one of those states—California—also passed a state paid family leave insurance law, which guarantees employees receive pay while on leave due to pregnancy, disability, or serious health issues. (New Jersey, Rhode Island, Washington, and New York have passed similar laws.) Without access to paid leave, Tracy said, survivors often cannot “exercise one’s rights” to file a civil protection order, attend court hearings, or access housing services or any other resource needed to escape violence.

Furthermore, only a handful of state laws protect workers from discrimination based on sex, sexual orientation, gender identity, and pregnancy or familial status (North Carolina, on the other hand, recently passed a draconian state law that permits wide-sweeping bias in public and the workplace). There is no specific federal law that protects LGBTQ workers, but the U.S. Employment Opportunity Commission has clarified that the Civil Rights Act of 1964 does prohibit discrimination based on gender identity and sexual orientation.

Still, that doesn’t necessarily translate into practice. For example, the National Center for Transgender Equality found that 26 percent of transgender people were let go or fired because of anti-trans bias, while 50 percent of transgender workers reported on-the-job harassment. Research shows transgender people are at a higher risk of being fired because of their trans identity, which would make it harder for them to leave an abusive relationship.

“When issues like that intersect with domestic violence, it’s devastating,” Tracy told Rewire. “Frequently it makes it harder, if not impossible, for [victims] to leave battering situations.”

For many survivors, their freedom from abuse also depends on access to public benefits. Programs like Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), the child and dependent care credit, and earned income tax credit give low-income survivors access to the money and resources needed to be on stable economic ground. One example: According to the Center on Budget and Policy Priorities, where a family of three has one full-time nonsalary worker earning $10 an hour, SNAP can increase their take-home income by up to 20 percent.

These programs are “hugely important” in helping lift survivors and their families out of poverty and offset the financial inequality they face, Pentico said.

“When we can put cash in their pocket, then they may have the ability to then put a deposit someplace or to buy a bus ticket to get to family,” she told Rewire.

But these programs are under constant attack by conservative lawmakers. In March, the House Republicans approved a 2017 budget plan that would all but gut SNAP by more than $150 million over the next ten years. (Steep cuts already imposed on the food assistance program have led to as many as one million unemployed adults losing their benefits over the course of this year.) The House GOP budget would also strip nearly $500 billion from other social safety net programs including TANF, child-care assistance, and the earned income tax credit.

By slashing spending and imposing severe restrictions on public benefits, politicians are guaranteeing domestic violence survivors will remain stuck in a cycle of poverty, advocates say. They will stay tethered to their abuser because they will be unable to have enough money to live independently.

“When women leave in the middle of the night with the clothes on their back, kids tucked under their arms, come into shelter, and have no access to finances or resources, I can almost guarantee you she’s going to return,” Pentico told Rewire. “She has to return because she can’t afford not to.”

By contrast, advocates say that improving a survivor’s economic security largely depends on a state’s willingness to remedy what they see as public policy failures. Raising the minimum wage, mandating equal pay, enacting paid leave laws, and prohibiting employment discrimination—laws that benefit the entire working class—will make it much less likely that a survivor will have to choose between homelessness and abuse.

States can also pass proactive policies like the bill proposed in Pennsylvania, to make it easier for survivors to leave abusive situations in the first place. Last year, California enacted a law that similarly allows abuse survivors to terminate their lease without getting a restraining order or filing a police report permanent. Virginia also put in place an early lease-termination law for domestic violence survivors in 2013.

A “more equitable distribution of wealth is what we need, what we’re talking about,” Tracy told Rewire.

As Pentico put it, “When we can give [a survivor] access to finances that help her get and stay safe for longer, her ability to protect herself and her children significantly increases.”

Analysis Law and Policy

Do Counselors-in-Training Have the Right to Discriminate Against LGBTQ People?

Greg Lipper

Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”

A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.

There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.

The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.

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Keeton v. Anderson-Wiley

The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”

It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:

  • She would try to change the sexual orientation of gay clients;
  • If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
  • If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”

Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.

Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.

Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.

Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.

The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”

Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.

As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Ward v. Polite

The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.

Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.

Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”

All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.

On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.

And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”

Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.

In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”

But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.

Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)

Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.

Cash v. Hofherr

The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.

The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.

But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.

All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.

In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.

Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”

That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.

But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.

Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.

More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.

* * *

The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attempts to challenge bans on “reparative therapy.”

The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.