Analysis Law and Policy

Obama Administration’s Weak Defense May Prove To Be Birth Control Benefit’s Achilles Heel

Jessica Mason Pieklo

Ultimately, it may not be the conservative justices' animosity toward reproductive rights and women's health care generally that sinks the birth control benefit, but rather the Obama administration's refusal to vigorously defend it.

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

The conservative justices on the Supreme Court hate abortion rights. So it was a smart move by Paul Clement, counsel for Hobby Lobby and Conestoga Wood Specialties, during oral arguments in the Supreme Court today, to link the birth control benefit under the Affordable Care Act (ACA) to the possibility that a future government rule could also require that abortions be covered, thus “forcing” corporations to pay for abortions. There is no greater bogeyman on the right than the ever-present threat of “forcing someone else” to pay for abortion care.

But ultimately it may not be the conservative justices’ animosity toward abortion rights and women’s health care generally that sinks the birth control benefit, but rather the Obama administration’s refusal to vigorously defend it.

Justice Kennedy, while closing with a shot at the Obama administration today, did momentarily express his concerns for the employees who face the immediate burden and expense of their employers’ exercise of religion to deny them benefits under the law. But he was the only male justice even remotely concerned with the plight of employees during the argument, which is not that surprising given the Roberts Court’s deep concern with the rights of the 1 percent. Even less surprising was the fact that it was the three female justices on the Supreme Court who most vigorously defended the law, even when compared to Solicitor General Verilli, who was at the Supreme Court to do that very thing.

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In fact, it was the women on the bench who demonstrated the greatest grasp of the difference between the legal challenges to the birth control benefit and the political ones Clement proposed. Justice Sonia Sotomayor asked the obvious question of why Hobby Lobby doesn’t just drop insurance coverage and pay the tax penalty, questioning the very premise that Hobby Lobby and other for-profit employers objecting to providing the coverage face any real “substantial burden” on religious rights if there’s such an easy out. Justice Elena Kagan drove this point home:

There’s one penalty that is if the employer continues to provide health insurance without this part of the coverage, but Hobby Lobby could choose not to provide health insurance at all. And in that case Hobby Lobby would pay $2000 per employee, which is less than Hobby Lobby probably pays to provide insurance to its employees.

She continued:

So there’s a choice here. It’s not even a penalty by—in the language of the statute. It’s a payment or a tax. There’s a choice. And so the question is, why is there a substantial burden at all?

According to Clement, the cost to Hobby Lobby is to pay either a $475 million-per-year penalty for not complying with the coverage requirements or $26 million per year in tax penalties for not providing coverage at all. He said that while dropping coverage is an option, the justices should ignore that option for a couple reasons. First, Clement argued, it won’t change the fact that Hobby Lobby would still be injured as a result of the birth control benefit existing at all since it faces penalties either way and “feels punitive” to his clients who just want to do the right thing and provide their employees with health insurance that fits with their religious worldview and would rather the Obama administration find a way to make that coverage available to employees without burdening private enterprise. Of course, all taxes feel punitive to conservatives, a point not lost on Justice Sotomayor, who framed Clement’s position like this:

So the $2,000 tax—that’s what it’s called—is to help the government provide subsidies to people on the exchange that don’t have employer insurance. So it’s a tax because it’s—it is to do exactly what your client wants, to get the government to supply the contraceptives, not the insurance companies.

But Clement wouldn’t budge, insisting the “problem” with that solution is it doesn’t take into account that Hobby Lobby would be hurt; the company would probably have to raise wages to help its employees offset any cost associated with purchasing insurance on their own. In this view, Hobby Lobby faces a “punitive” tax for failing to comply with the law or a “punitive” remedy by increasing employee wages and dropping employer-sponsored health insurance. The range of injuries, according to Clement, all center on Hobby Lobby’s interests and those interests alone.

So why hasn’t the issue of the government exchanges and their potential solution to this “burdening” of corporate religious rights gotten more play? Even Justice Kennedy, who may ultimately decide to grant companies broad religious exemptions, was willing to see the exchanges as a possible escape valve to this mess of religion, contraception, and employer-provided health insurance. The problem lies with the administration, which hasn’t raised this line of argument in defending the health-care law’s birth control benefit in court.

“[T]his all turns on issues that the government hasn’t put in issue,” said Clement. “This case hasn’t been litigated on this particular theory, so I think—I’d love to have the opportunity to show how by not providing health insurance it would have a huge burden on my client and their ability to attract workers, and that in fact would cost them much more out of pocket. But that’s not been the nature of the government’s theory.”

If one stumbling point for the government case is the Obama administration’s unwillingness to aggressively champion its health insurance exchanges as a means for employers to avoid a choice between providing comprehensive contraception coverage or violating the religious tenets of its owners, then another could be the administration’s willingness to grant so many exemptions to other employers, like religiously affiliated nonprofits and grandfathered plans.

Clement used the existence of the exemptions to argue against the government’s claimed “compelling interest” in providing the coverage at all. In fact, Clement seemed to suggest, this whole mess could just go away if the administration was willing to grant the same kind of exemption to for-profit employers as it is to religiously affiliated nonprofits—a point Justice Alito was more than willing to pick up later, suggesting that there are a “number” of alternatives for women to access contraception other than through employer-provided health insurance plans.

Of course, there are a host of problems with this argument. First, conservatives tried to get such an exemption passed, and it failed. So really, Clement’s point is to show that conservatives are now trying to achieve via litigation what they were not able to accomplish via legislation.

Second, even that accommodation cited by Clement as a possible solution is under attack as too onerous under the Religious Freedom Restoration Act (RFRA). So to call this a solution is disingenuous at best, when conservatives believe the simple act of filing out a form unduly burdens religious rights.

Third, how exactly would this work in the for-profit context? Clement doesn’t say, and the justices didn’t press him for details, but we already have a road map. Employers would have to assert a religious objection to providing insurance plans that cover contraception. But unlike religiously affiliated nonprofits, where the entire notion of “sincere religious beliefs” is accepted without question, how is the government to distinguish between the “sincere” beliefs of corporate owners and those just looking to avoid fully complying with the law? There are two real answers: One is that the administration can’t or won’t be able to and will just drop the birth control benefit generally. The other would be to challenge those beliefs, and essentially litigate every request for an exemption—a cost and burden that could eventually cripple the birth control benefit politically.

Which is, of course, exactly the point.

I don’t know how the justices are going to rule in this case. I’m not quite willing to conclude that the birth control benefit is dead in its entirety and that corporations have a wide range of free exercise rights, nor am I quite willing to conclude that Hobby Lobby loses outright. But I do believe the case against the birth control benefit, both politically and legally, has been greatly bolstered by the Obama administration’s unwillingness to question the sincerity of the corporate attacks against the benefit—whether it be in the junk science that argues an intrauterine device (IUD) is an abortifacient, or in the fact that Hobby Lobby was for providing health insurance that covered contraception before it was against it. I remain firmly convinced that, absent a significant rewrite, the ACA is on the administration’s side and the side of those supporting comprehensive contraception coverage—which means if the birth control benefit falls, it will be a result of a political failing, not a shortcoming of the law.

And for that we’ll have nobody to blame but the administration.

Analysis Abortion

‘Pro-Life’ Pence Transfers Money Intended for Vulnerable Households to Anti-Choice Crisis Pregnancy Centers

Jenn Stanley

Donald Trump's running mate has said that "life is winning in Indiana"—and the biggest winner is probably a chain of crisis pregnancy centers that landed a $3.5 million contract in funds originally intended for poor Hoosiers.

Much has been made of Republican Gov. Mike Pence’s record on LGBTQ issues. In 2000, when he was running for U.S. representative, Pence wrote that “Congress should oppose any effort to recognize homosexual’s [sic] as a ‘discreet and insular minority’ [sic] entitled to the protection of anti-discrimination laws similar to those extended to women and ethnic minorities.” He also said that funds meant to help people living with HIV or AIDS should no longer be given to organizations that provide HIV prevention services because they “celebrate and encourage” homosexual activity. Instead, he proposed redirecting those funds to anti-LGBTQ “conversion therapy” programs, which have been widely discredited by the medical community as being ineffective and dangerous.

Under Pence, ideology has replaced evidence in many areas of public life. In fact, Republican presidential nominee Donald Trump has just hired a running mate who, in the past year, has reallocated millions of dollars in public funds intended to provide food and health care for needy families to anti-choice crisis pregnancy centers.

Gov. Pence, who declined multiple requests for an interview with Rewire, has been outspoken about his anti-choice agenda. Currently, Indiana law requires people seeking abortions to receive in-person “counseling” and written information from a physician or other health-care provider 18 hours before the abortion begins. And thanks, in part, to other restrictive laws making it more difficult for clinics to operate, there are currently six abortion providers in Indiana, and none in the northern part of the state. Only four of Indiana’s 92 counties have an abortion provider. All this means that many people in need of abortion care are forced to take significant time off work, arrange child care, and possibly pay for a place to stay overnight in order to obtain it.

This environment is why a contract quietly signed by Pence last fall with the crisis pregnancy center umbrella organization Real Alternatives is so potentially dangerous for Indiana residents seeking abortion: State-subsidized crisis pregnancy centers not only don’t provide abortion but seek to persuade people out of seeking abortion, thus limiting their options.

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“Indiana is committed to the health, safety, and wellbeing [sic] of Hoosier families, women, and children,” reads the first line of the contract between the Indiana State Department of Health and Real Alternatives. The contract, which began on October 1, 2015, allocates $3.5 million over the course of a year for Real Alternatives to use to fund crisis pregnancy centers throughout the state.

Where Funding Comes From

The money for the Real Alternatives contract comes from Indiana’s Temporary Assistance for Needy Families (TANF) block grant, a federally funded, state-run program meant to support the most vulnerable households with children. The program was created by the 1996 Personal Responsibility and Work Opportunity Reconciliation Act signed by former President Bill Clinton. It changed welfare from a federal program that gave money directly to needy families to one that gave money, and a lot of flexibility with how to use it, to the states.

This TANF block grant is supposed to provide low-income families a monthly cash stipend that can be used for rent, child care, and food. But states have wide discretion over these funds: In general, they must use the money to serve families with children, but they can also fund programs meant, for example, to promote marriage. They can also make changes to the requirements for fund eligibility.

As of 2012, to be eligible for cash assistance in Indiana, a household’s maximum monthly earnings could not exceed $377, the fourth-lowest level of qualification of all 50 states, according to a report by the Congressional Research Service. Indiana’s program also has some of the lowest maximum payouts to recipients in the country.

Part of this is due to a 2011 work requirement that stripped eligibility from many families. Under the new work requirement, a parent or caretaker receiving assistance needs to be “engaged in work once the State determines the parent or caretaker is ready to engage in work,” or after 24 months of receiving benefits. The maximum time allowed federally for a family to receive assistance is 60 months.

“There was a TANF policy change effective November 2011 that required an up-front job search to be completed at the point of application before we would proceed in authorizing TANF benefits,” Jim Gavin, a spokesman for the state’s Family and Social Services Administration (FSSA), told Rewire. “Most [applicants] did not complete the required job search and thus applications were denied.”

Unspent money from the block grant can be carried over to following years. Indiana receives an annual block grant of $206,799,109, but the state hasn’t been using all of it thanks to those low payouts and strict eligibility requirements. The budget for the Real Alternatives contract comes from these carry-over funds.

According to the U.S. Department of Health and Human Services, TANF is explicitly meant to clothe and feed children, or to create programs that help prevent “non-marital childbearing,” and Indiana’s contract with Real Alternatives does neither. The contract stipulates that Real Alternatives and its subcontractors must “actively promote childbirth instead of abortion.” The funds, the contract says, cannot be used for organizations that will refer clients to abortion providers or promote contraceptives as a way to avoid unplanned pregnancies and sexually transmitted infections.

Parties involved in the contract defended it to Rewire by saying they provide material goods to expecting and new parents, but Rewire obtained documents that showed a much different reality.

Real Alternatives is an anti-choice organization run by Kevin Bagatta, a Pennsylvania lawyer who has no known professional experience with medical or mental health services. It helps open, finance, and refer clients to crisis pregnancy centers. The program started in Pennsylvania, where it received a $30 million, five-year grant to support a network of 40 subcontracting crisis pregnancy centers. Auditor General Eugene DePasquale called for an audit of the organization between June 2012 and June 2015 after hearing reports of mismanaged funds, and found $485,000 in inappropriate billing. According to the audit, Real Alternatives would not permit DHS to review how the organization used those funds. However, the Pittsburgh Post-Gazette reported in April that at least some of the money appears to have been designated for programs outside the state.

Real Alternatives also received an $800,000 contract in Michigan, which inspired Gov. Pence to fund a $1 million yearlong pilot program in northern Indiana in the fall of 2014.

“The widespread success [of the pilot program] and large demand for these services led to the statewide expansion of the program,” reads the current $3.5 million contract. It is unclear what measures the state used to define “success.”

 

“Every Other Baby … Starts With Women’s Care Center”

Real Alternatives has 18 subcontracting centers in Indiana; 15 of them are owned by Women’s Care Center, a chain of crisis pregnancy centers. According to its website, Women’s Care Center serves 25,000 women annually in 23 centers throughout Florida, Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.

Women’s Care Centers in Indiana received 18 percent of their operating budget from state’s Real Alternatives program during the pilot year, October 1, 2014 through September 30, 2015, which were mostly reimbursements for counseling and classes throughout pregnancy, rather than goods and services for new parents.

In fact, instead of the dispensation of diapers and food, “the primary purpose of the [Real Alternatives] program is to provide core services consisting of information, sharing education, and counseling that promotes childbirth and assists pregnant women in their decision regarding adoption or parenting,” the most recent contract reads.

The program’s reimbursement system prioritizes these anti-choice classes and counseling sessions: The more they bill for, the more likely they are to get more funding and thus open more clinics.

“This performance driven [sic] reimbursement system rewards vendor service providers who take their program reimbursement and reinvest in their services by opening more centers and hiring more counselors to serve more women in need,” reads the contract.

Classes, which are billed as chastity classes, parenting classes, pregnancy classes, and childbirth classes, are reimbursed at $21.80 per client. Meanwhile, as per the most recent contract, counseling sessions, which are separate from the classes, are reimbursed by the state at minimum rates of $1.09 per minute.

Jenny Hunsberger, vice president of Women’s Care Center, told Rewire that half of all pregnant women in Elkhart, LaPorte, Marshall, and St. Joseph Counties, and one in four pregnant women in Allen County, are clients of their centers. To receive any material goods, such as diapers, food, and clothing, she said, all clients must receive this counseling, at no cost to them. Such counseling is billed by the minute for reimbursement.

“When every other baby born [in those counties] starts with Women’s Care Center, that’s a lot of minutes,” Hunsberger told Rewire.

Rewire was unable to verify exactly what is said in those counseling sessions, except that they are meant to encourage clients to carry their pregnancies to term and to help them decide between adoption or child rearing, according to Hunsberger. As mandated by the contract, both counseling and classes must “provide abstinence education as the best and only method of avoiding unplanned pregnancies and sexually transmitted infections.”

In the first quarter of the new contract alone, Women’s Care Center billed Real Alternatives and, in turn, the state, $239,290.97; about $150,000 of that was for counseling, according to documents obtained by Rewire. In contrast, goods like food, diapers, and other essentials for new parents made up only about 18.5 percent of Women’s Care Center’s first-quarter reimbursements.

Despite the fact that the state is paying for counseling at Women’s Care Center, Rewire was unable to find any licensing for counselors affiliated with the centers. Hunsberger told Rewire that counseling assistants and counselors complete a minimum training of 200 hours overseen by a master’s level counselor, but the counselors and assistants do not all have social work or psychology degrees. Hunsberger wrote in an email to Rewire that “a typical Women’s Care Center is staffed with one or more highly skilled counselors, MSW or equivalent.”

Rewire followed up for more information regarding what “typical” or “equivalent” meant, but Hunsberger declined to answer. A search for licenses for the known counselors at Women’s Care Center’s Indiana locations turned up nothing. The Indiana State Department of Health told Rewire that it does not monitor or regulate the staff at Real Alternatives’ subcontractors, and both Women’s Care Center and Real Alternatives were uncooperative when asked for more information regarding their counseling staff and training.

Bethany Christian Services and Heartline Pregnancy Center, Real Alternatives’ other Indiana subcontractors, billed the program $380.41 and $404.39 respectively in the first quarter. They billed only for counseling sessions, and not goods or classes.

In a 2011 interview with Philadelphia City Paper, Kevin Bagatta said that Real Alternatives counselors were not required to have a degree.

“We don’t provide medical services. We provide human services,” Bagatta told the City Paper.

There are pregnancy centers in Indiana that provide a full range of referrals for reproductive health care, including for STI testing and abortion. However, they are not eligible for reimbursement under the Real Alternatives contract because they do not maintain an anti-choice mission.

Parker Dockray is the executive director of Backline, an all-options pregnancy resource center. She told Rewire that Backline serves hundreds of Indiana residents each month, and is overwhelmed by demand for diapers and other goods, but it is ineligible for the funding because it will refer women to abortion providers if they choose not to carry a pregnancy to term.

“At a time when so many Hoosier families are struggling to make ends meet, it is irresponsible for the state to divert funds intended to support low-income women and children and give it to organizations that provide biased pregnancy counseling,” Dockray told Rewire. “We wish that Indiana would use this funding to truly support families by providing job training, child care, and other safety net services, rather than using it to promote an anti-abortion agenda.”

“Life Is Winning in Indiana”

Time and again, Bagatta and Hunsberger stressed to Rewire that their organizations do not employ deceitful tactics to get women in the door and to convince them not to have abortions. However, multiple studies have proven that crisis pregnancy centers often lie to women from the moment they search online for an abortion provider through the end of their appointments inside the center.

These studies have also shown that publicly funded crisis pregnancy centers dispense medically inaccurate information to clients. In addition to spreading lies like abortion causing infertility or breast cancer, they are known to give false hopes of miscarriages to people who are pregnant and don’t want to be. A 2015 report by NARAL Pro-Choice America found this practice to be ubiquitous in centers throughout the United States, and Rewire found that Women’s Care Center is no exception. The organization’s website says that as many as 40 percent of pregnancies end in natural miscarriage. While early pregnancy loss is common, it occurs in about 10 percent of known pregnancies, according to the American Congress of Obstetricians and Gynecologists.

Crisis pregnancy centers also tend to crop up next to abortion clinics with flashy, deceitful signs that lead many to mistakenly walk into the wrong building. Once inside, clients are encouraged not to have an abortion.

A Google search for “abortion” and “Indianapolis” turns up an ad for the Women’s Care Center as the first result. It reads: “Abortion – Indianapolis – Free Ultrasound before Abortion. Located on 86th and Georgetown. We’re Here to Help – Call Us Today: Abortion, Ultrasound, Locations, Pregnancy.”

Hunsberger denies any deceit on the part of Women’s Care Center.

“Clients who walk in the wrong door are informed that we are not the abortion clinic and that we do not provide abortions,” Hunsberger told Rewire. “Often a woman will choose to stay or return because we provide services that she feels will help her make the best decision for her, including free medical-grade pregnancy tests and ultrasounds which help determine viability and gestational age.”

Planned Parenthood of Indiana and Kentucky told Rewire that since Women’s Care Center opened on 86th and Georgetown in Indianapolis, many patients looking for its Georgetown Health Center have walked through the “wrong door.”

“We have had patients miss appointments because they went into their building and were kept there so long they missed their scheduled time,” Judi Morrison, vice president of marketing and education, told Rewire.

Sarah Bardol, director of Women’s Care Center’s Indianapolis clinic, told the Criterion Online Edition, a publication of the Archdiocese of Indianapolis, that the first day the center was open, a woman and her boyfriend did walk into the “wrong door” hoping to have an abortion.

“The staff of the new Women’s Care Center in Indianapolis, located just yards from the largest abortion provider in the state, hopes for many such ‘wrong-door’ incidents as they seek to help women choose life for their unborn babies,” reported the Criterion Online Edition.

If they submit to counseling, Hoosiers who walk into the “wrong door” and “choose life” can receive up to about $40 in goods over the course their pregnancy and the first year of that child’s life. Perhaps several years ago they may have been eligible for Temporary Assistance for Needy Families, but now with the work requirement, they may not qualify.

In a February 2016 interview with National Right to Life, one of the nation’s most prominent anti-choice groups, Gov. Pence said, “Life is winning in Indiana.” Though Pence was referring to the Real Alternatives contract, and the wave of anti-choice legislation sweeping through the state, it’s not clear what “life is winning” actually means. The state’s opioid epidemic claimed 1,172 lives in 2014, a statistically significant increase from the previous year, according to the Centers for Disease Control and Prevention. HIV infections have spread dramatically throughout the state, in part because of Pence’s unwillingness to support medically sound prevention practices. Indiana’s infant mortality rate is above the national average, and infant mortality among Black babies is even higher. And Pence has reduced access to prevention services such as those offered by Planned Parenthood through budget cuts and unnecessary regulations—while increasing spending on anti-choice crisis pregnancy centers.

Gov. Pence’s track record shows that these policies are no mistake. The medical and financial needs of his most vulnerable constituents have taken a backseat to religious ideology throughout his time in office. He has literally reallocated money for poor Hoosiers to fund anti-choice organizations. In his tenure as both a congressman and a governor, he’s proven that whether on a national or state level, he’s willing to put “pro-life” over quality-of-life for his constituents.

News Media

Study: Politicians Dominate Nightly News Reports on Birth Control

Nicole Knight Shine

Study co-author Michelle H. Moniz, assistant professor of obstetrics and gynecology at the University of Michigan, noted that news segments largely framed contraception as a political issue, rather than a matter of public health.

When it comes to asking experts to weigh in on birth control, the nation’s three major TV networks favor political figures over doctors, according to a forthcoming paper in the journal Contraception.

Analyzing nightly news segments on contraception on ABC, CBS, and NBC between 2010 to 2014, the authors found that few broadcasts included medical professionals (11 percent) or health researchers (4 percent). Politicians, however, dominated coverage, appearing as sources 40 percent of the time, followed by advocates (25 percent), the general public (25 percent), and Catholic Church leaders (16 percent).

Sixty-nine percent of news segments on birth control included no medical information, the authors found.

Study co-author Michelle H. Moniz, assistant professor of obstetrics and gynecology at the University of Michigan, noted that news segments largely framed contraception as a political issue, rather than a matter of public health.

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“Health professionals are an untapped resource for ensuring that the most up-to-date, scientific information is available to the public watching the news,” Moniz said in an email to Rewire.

An estimated 24 million Americans watch nightly news, making it an “influential information source,” the authors note.

And although nearly half of pregnancies in the United States each year are unplanned, news segments did not emphasize highly effective contraception like IUDs, the researchers found. Instead, emergency contraception, commonly known as the morning-after pill, warranted the most coverage, at 18 percent, followed by the daily oral contraceptive pill, at 16 percent.

The researchers’ analysis of 116 nightly news segments coincided with the rollout of the Affordable Care Act by President Obama and continued through the June 2014 U.S. Supreme Court decision in Burwell v. Hobby Lobby, which carved out the right for private corporations to deny birth control coverage to employees on religious grounds.

“We found that when the network television media covers contraception,” the authors observed, “they do so within a largely political frame and emphasize the controversial aspects of contraception, while paying less attention to health aspects and content experts.”

The paper was authored by five researchers from the University of Michigan, Ann Arbor; the Veterans Affairs Center for Clinical Management and Research in Michigan; and the Pennsylvania Department of Health.

The study builds on earlier work exposing media bias and gender disparities in reproductive health coverage.

In June, an analysis of prime-time news programs on cable networks CNN, Fox News, and MSNBC by media watchdog group Media Matters for America found that 40 percent of guests on all three networks made anti-choice statements or identified as anti-choice, compared with 17 percent of guests who made pro-choice statements or identified as reproductive rights advocates. On Fox, guests made a total of 705 inaccurate statements about abortion care over a 14-month period.

The nightly news study follows a report earlier this year on gender disparities by the Women’s Media Center, a nonprofit advocacy group, indicating that male journalists dominate reproductive health coverage, with bylines on 67 percent of all presidential election stories related to abortion and contraception. Female journalists, in comparison, wrote 37 percent of articles about reproductive issues.