Roundups Law and Policy

Legal Wrap: A Win in Arizona and the Case for Insurance Coverage for Abortion

Jessica Mason Pieklo

Good news for the women of Arizona; the fight to restore insurance coverage for safe abortion care; North Dakota court approves sex-ed program; and more.

Good news for the women of Arizona! U.S. District Judge Neil Wake overturned a 2012 state law that stripped Planned Parenthood of funding and threatened access to affordable health care for thousands of Arizonans, ruling that the law’s ban on Medicaid funding for non-abortion health care provided by doctors and clinics that also perform abortions violates federal Medicaid law. Meanwhile, as Tara Sweeney and Kelly Baden argue, the fight over reproductive health care needs to go on the offensive, and it starts with restoring insurance coverage for safe abortion care. To further illustrate the point made by Sweeny and Baden that funding programs are at the heart of the battle over abortion access, Robin Marty offers this analysis of how state legislatures threaten access through tax-payer funding of non-medical crisis pregnancy centers. Imani Gandy takes on the pernicious and disingenuous arguments used by anti-choice extremists to accuse pro-choice groups and abortion clinics of targeting minorities and to push for bans on race and sex selective abortions in this must read. North Dakota has become a hotbed of anti-choice activity as of late, but thanks to this opinion issued by the state’s attorney general, a much-needed sex education program for teens in the Fargo, North Dakota region can move forward. A law designed to help catch serial rapists by allowing law enforcement to take DNA samples of people arrested but not yet convicted of some crimes could have unintended consequences for pregnant women. Immigration reform is an important part of President Obama’s agenda for his second term. Sheila Bapat reports on how domestic workers are making sure their voices are heard as the administration and lawmakers start to put together a bill. It has been relatively quiet this week in the battle over the birth control benefit in Obamacare. The Third Circuit Court of Appeals denied the appeal of Conestoga Wood Specialties Corp., a for-profit businesses owned by a family of Mennonites who are trying to avoid the coverage requirements. Meanwhile Bridgette Dunlap has this great piece on the history of Catholic universities and birth control and how, not so long ago, the very same institutions arguing to courts across the country that providing insurance coverage for birth control violates their religious beliefs used to lobby heavily for family planning and contraception. Huh. According to a recent California Supreme Court decision, employers have some more wiggle-room when trying to defeat claims of discrimination. Thanks to the opinion issued last week, once an employee who is claiming discrimination demonstrates that a discriminatory reason substantially motivated an adverse employment decision, the employer is entitled to show that a legitimate, non-discriminatory reason would have led it to make the same decision. If the employer is able to demonstrate that, notwithstanding the evidence of discrimination, it was also motivated by a non-discriminatory reason, the employee is no longer entitled to monetary damages, back pay or reinstatement, but may still be entitled to an injunction or an award of attorneys’ fees and costs. This is a huge set-back for employees and workplace equality advocates. Oftentimes discriminatory employment decisions are couched in what the law calls “pretext” explanations or evidence of something other than unlawful discrimination, such as claims of poor performance or employee behavioral problems. The law recognized that employers have gotten more sophisticated in communicating bias and had allowed employees to recover money damages should they prove indirect discrimination, a remedy that was designed to help motivate employers to address discrimination in their workplaces. In California, that is no longer the case.

News Abortion

Study: Telemedicine Abortion Care a Boon for Rural Patients

Nicole Knight

Despite the benefits of abortion care via telemedicine, 18 states have effectively banned the practice by requiring a doctor to be physically present.

Patients are seen sooner and closer to home in clinics where medication abortion is offered through a videoconferencing system, according to a new survey of Alaskan providers.

The results, which will be published in the Journal of Telemedicine and Telecare, suggest that the secure and private technology, known as telemedicine, gives patients—including those in rural areas with limited access—greater choices in abortion care.

The qualitative survey builds on research that found administering medication abortion via telemedicine was as safe and effective as when a doctor administers the abortion-inducing medicine in person, study researchers said.

“This study reinforces that medication abortion provided via telemedicine is an important option for women, particularly in rural areas,” said Dr. Daniel Grossman, one of the authors of the study and professor of obstetrics, gynecology, and reproductive sciences at the University of California San Francisco (UCSF). “In Iowa, its introduction was associated with a reduction in second-trimester abortion.”

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Maine and Minnesota also provide medication abortion via telemedicine. Clinics in four states—New York, Hawaii, Oregon, and Washington—are running pilot studies, as the Guardian reported. Despite the benefits of abortion care via telemedicine, 18 states have effectively banned the practice by requiring a doctor to be physically present.

The researchers noted that even “greater gains could be made by providing [medication abortion] directly to women in their homes,” which U.S. product labeling doesn’t allow.

In late 2013, researchers with Ibis Reproductive Health and Advancing New Standards in Reproductive Health interviewed providers, such as doctors, nurses, and counselors, in clinics run by Planned Parenthood of the Great Northwest and the Hawaiian Islands that were using telemedicine to provide medication abortion. Providers reported telemedicine’s greatest benefit was to pregnant people. Clinics could schedule more appointments and at better hours for patients, allowing more to be seen earlier in pregnancy.

Nearly twenty-one percent of patients nationwide end their pregnancies with medication abortion, a safe and effective two-pill regime, according to the most recent figures from the U.S. Centers for Disease Control and Prevention.

Alaska began offering the abortion-inducing drugs through telemedicine in 2011. Patients arrive at a clinic, where they go through a health screening, have an ultrasound, and undergo informed consent procedures. A doctor then remotely reviews the patients records and answers questions via a videoconferencing link, before instructing the patient on how to take the medication.

Before 2011, patients wanting abortion care had to fly to Anchorage or Seattle, or wait for a doctor who flew into Fairbanks twice a month, according to the study’s authors.

Beyond a shortage of doctors, patients in Alaska must contend with vast geography and extreme weather, as one physician told researchers:

“It’s negative seven outside right now. So in a setting like that, [telemedicine is] just absolutely the best possible thing that you could do for a patient. … Access to providers is just so limited. And … just because you’re in a state like that doesn’t mean that women aren’t still as much needing access to these services.”

“Our results were in line with other research that has shown that this service can be easily integrated into other health care offered at a clinic, can help women access the services they want and need closer to home, and allows providers to offer high-level care to women from a distance,” Kate Grindlay, lead author on the study and associate at Ibis Reproductive Health, said in a statement.

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.”

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