News Law and Policy

Obama Administration Revises ACA Contraception Rules—Again

Jessica Mason Pieklo

The latest rules offer a work-around for those for-profit companies objecting to providing contraception coverage in their employee health insurance plans.

The Obama administration on Friday released final rules for employers claiming a religious objection to complying with the Affordable Care Act’s birth control benefit.

The new regulation specifies that, in the wake of the Supreme Court’s 2014 Hobby Lobby decision, closely held for-profit corporations are eligible for an accommodation to the federal contraceptive rule previously extended to religiously affiliated nonprofits.

The final rule defines a for-profit company as one that is not publicly traded, is majority-owned by a relatively small number of people, and objects to providing contraceptive coverage based on its owners’ religious beliefs. The definition includes for-profit entities “controlled and operated by individual owners who are likely to have associational ties, are personally identified with the entity, and can be regarded as conducting personal business affairs through the entity.”

The final regulations exclude publicly traded entities from the definition of a for-profit company eligible for religious accommodation.

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Under the new rule, a closely held for-profit company that objects to providing employer-based health insurance that covers contraception at no additional cost can write a letter to the Department of Health and Human Services stating its objections to birth control.

HHS will then notify a third-party insurer of the company’s objections. The insurer will step in and provide the contraception coverage directly to the employees at no additional cost to the company.

The rule also addresses the accommodation process for religiously affiliated nonprofits, many of which have filed lawsuits objecting to the process of completing a form in order to be exempt from coverage.

Just days after the Hobby Lobby decision, the Supreme Court in Wheaton College ruled the evangelical college could complete an alternative process in order to benefit from the accommodation. The rule announced Friday codifies that Wheaton College interim order.

Based on current litigation challenging the contraceptive coverage requirement, the Obama administration stated in the rules that it anticipates at least 122 nonprofits and 87 closely held for-profit entities will seek an accommodation.

“What this means for women is that you will be able to get birth control without a copay, no matter where you work,” Cecile Richards, president of Planned Parenthood Action Fund, said in a statement following the release of the rule. “Your boss shouldn’t decide whether or not your birth control is covered by insurance, and this guidance from the federal government will ensure women get birth control at no cost.”

While the latest accommodation offers objecting employers a variety of methods to avoid complying with the birth control coverage requirements, there is no guarantee the latest rules will satisfy those who argue any process that allows their employes to access contraceptive coverage violates their religious beliefs.

News Law and Policy

Three Crisis Pregnancy Centers Served for Breaking California Law

Nicole Knight Shine

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act.

The Los Angeles City Attorney is warning three area fake clinics, commonly known as crisis pregnancy centers (CPCs), that they’re breaking a new state reproductive disclosure law and could face fines of $500 if they don’t comply.

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, advocates and the state Attorney General’s office indicate.

The office of City Attorney Mike Feuer served the notices on July 15 and July 18 to two unlicensed and one licensed clinic, a representative from the office told Rewire. The Los Angeles area facilities are Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

The law requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care, and for unlicensed centers to disclose that they are not medical facilities.

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“Our investigation revealed,” one of the letters from the city attorney warns, “that your facility failed to post the required onsite notice anywhere at your facility and that your facility failed to distribute the required notice either through a printed document or digitally.”

The centers have 30 days from the date of the letter to comply or face a $500 fine for an initial offense and $1,000 for subsequent violations.

“I think this is the first instance of a city attorney or any other authority enforcing the FACT Act, and we really admire City Attorney Mike Feuer for taking the lead,” Amy Everitt, state director of NARAL Pro-Choice California, told Rewire on Wednesday.

Feuer in May unveiled a campaign to crack down on violators, announcing that his office was “not going to wait” amid reports that some jurisdictions had chosen not to enforce the law while five separate court challenges brought by multiple fake clinics are pending.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before U.S. Court of Appeals for the Ninth Circuit.

In April, Rebecca Plevin of the local NPR affiliate KPCC found that six of eight area fake clinics were defying the FACT Act.

Although firm numbers are hard to come by, around 25 fake clinics, or CPCs, operate in Los Angeles County, according to estimates from a representative of NARAL Pro-Choice California. There are upwards of 1,200 CPCs across the country, according to their own accounting.

Last week, Rewire paid visits to the three violators: Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

Christie Kwan, a nurse manager at Pregnancy Counseling Center, declined to discuss the clinic’s noncompliance, but described their opposition to the state law as a “First Amendment concern.”

All three centers referred questions to their legal counsel, Alliance Defending Freedom (ADF), an Arizona-based nonprofit and frequent defender of discriminatory “religious liberty” laws.

Matt Bowman, senior counsel with ADF, said in an email to Rewire that forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs” and threatens their free speech rights.

“The First Amendment protects all Americans, including pro-life people, from being targeted by a government conspiring with pro-abortion activists,” Bowman said.

Rewire found that some clinics are following the law. Claris Health, which was contacted as part of Feuer’s enforcement campaign in May, includes the public notice with patient intake forms, where it’s translated into more than a dozen languages, CEO Talitha Phillips said in an email to Rewire.

Open Arms Pregnancy Center in the San Fernando Valley has posted the public notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”

Even so, reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, a person who Googled “abortion clinic” might be directed to a fake clinic, or CPC.

Oakland last week became the second U.S. city to ban false advertising by facilities that city leaders described as “fronts for anti-abortion activists.” San Francisco passed a similar ordinance in 2011.

Culture & Conversation Maternity and Birthing

On ‘Commonsense Childbirth’: A Q&A With Midwife Jennie Joseph

Elizabeth Dawes Gay

Joseph founded a nonprofit, Commonsense Childbirth, in 1998 to inspire change in maternity care to better serve people of color. As a licensed midwife, Joseph seeks to transform how care is provided in a clinical setting.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

Jennie Joseph’s philosophy is simple: Treat patients like the people they are. The British native has found this goes a long way when it comes to her midwifery practice and the health of Black mothers and babies.

In the United States, Black women are disproportionately affected by poor maternal and infant health outcomes. Black women are more likely to experience maternal and infant death, pregnancy-related illness, premature birth, low birth weight, and stillbirth. Beyond the data, personal accounts of Black women’s birthing experiences detail discrimination, mistreatment, and violation of basic human rights. Media like the new film, The American Dream, share the maternity experiences of Black women in their own voices.

A new generation of activists, advocates, and concerned medical professionals have mobilized across the country to improve Black maternal and infant health, including through the birth justice and reproductive justice movements.

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Joseph founded a nonprofit, Commonsense Childbirth, in 1998 to inspire change in maternity care to better serve people of color. As a licensed midwife, Joseph seeks to transform how care is provided in a clinical setting.

At her clinics, which are located in central Florida, a welcoming smile and a conversation mark the start of each patient visit. Having a dialogue with patients about their unique needs, desires, and circumstances is a practice Joseph said has contributed to her patients having “chunky,” healthy, full-term babies. Dialogue and care that centers the patient costs nothing, Joseph told Rewire in an interview earlier this summer.

Joseph also offers training to midwives, doulas, community health workers, and other professionals in culturally competent, patient-centered care through her Commonsense Childbirth School of Midwifery, which launched in 2009. And in 2015, Joseph launched the National Perinatal Task Force, a network of perinatal health-care and service providers who are committed to working in underserved communities in order to transform maternal health outcomes in the United States.

Rewire spoke with Joseph about her tireless work to improve maternal and perinatal health in the Black community.

Rewire: What motivates and drives you each day?

Jennie Joseph: I moved to the United States in 1989 [from the United Kingdom], and each year it becomes more and more apparent that to address the issues I care deeply about, I have to put action behind all the talk.

I’m particularly concerned about maternal and infant morbidity and mortality that plague communities of color and specifically African Americans. Most people don’t know that three to four times as many Black women die during pregnancy and childbirth in the United States than their white counterparts.

When I arrived in the United States, I had to start a home birth practice to be able to practice at all, and it was during that time that I realized very few people of color were accessing care that way. I learned about the disparities in maternal health around the same time, and I felt compelled to do something about it.

My motivation is based on the fact that what we do [at my clinic] works so well it’s almost unconscionable not to continue doing it. I feel driven and personally responsible because I’ve figured out that there are some very simple things that anyone can do to make an impact. It’s such a win-win. Everybody wins: patients, staff, communities, health-care agencies.

There are only a few of us attacking this aggressively, with few resources and without support. I’ve experienced so much frustration, anger, and resignation about the situation because I feel like this is not something that people in the field don’t know about. I know there have been some efforts, but with little results. There are simple and cost-effective things that can be done. Even small interventions can make such a tremendous a difference, and I don’t understand why we can’t have more support and more interest in moving the needle in a more effective way.

I give up sometimes. I get so frustrated. Emotions vie for time and energy, but those very same emotions force me to keep going. I feel a constant drive to be in action and to be practical in achieving and getting results.

Rewire: In your opinion, what are some barriers to progress on maternal health and how can they be overcome?

JJ: The solutions that have been generated are the same, year in and year out, but are not really solutions. [Health-care professionals and the industry] keep pushing money into a broken system, without recognizing where there are gaps and barriers, and we keep doing the same thing.

One solution that has not worked is the approach of hiring practitioners without a thought to whether the practitioner is really a match for the community that they are looking to serve. Additionally, there is the fact that the practitioner alone is not going to be able make much difference. There has to be a concerted effort to have the entire health-care team be willing to support the work. If the front desk and access points are not in tune with why we need to address this issue in a specific way, what happens typically is that people do not necessarily feel welcomed or supported or respected.

The world’s best practitioner could be sitting down the hall, but never actually see the patient because the patient leaves before they get assistance or before they even get to make an appointment. People get tired of being looked down upon, shamed, ignored, or perhaps not treated well. And people know which hospitals and practitioners provide competent care and which practices are culturally safe.

I would like to convince people to try something different, for real. One of those things is an open-door triage at all OB-GYN facilities, similar to an emergency room, so that all patients seeking maternity care are seen for a first visit no matter what.

Another thing would be for practitioners to provide patient-centered care for all patients regardless of their ability to pay.  You don’t have to have cultural competency training, you just have to listen and believe what the patients are telling you—period.

Practitioners also have a role in dismantling the institutionalized racism that is causing such harm. You don’t have to speak a specific language to be kind. You just have to think a little bit and put yourself in that person’s shoes. You have to understand she might be in fear for her baby’s health or her own health. You can smile. You can touch respectfully. You can make eye contact. You can find a real translator. You can do things if you choose to. Or you can stay in place in a system you know is broken, doing business as usual, and continue to feel bad doing the work you once loved.

Rewire: You emphasize patient-centered care. Why aren’t other providers doing the same, and how can they be convinced to provide this type of care?

JJ: I think that is the crux of the matter: the convincing part. One, it’s a shame that I have to go around convincing anyone about the benefits of patient-centered care. And two, the typical response from medical staff is “Yeah, but the cost. It’s expensive. The bureaucracy, the system …” There is no disagreement that this should be the gold standard of care but providers say their setup doesn’t allow for it or that it really wouldn’t work. Keep in mind that patient-centered care also means equitable care—the kind of care we all want for ourselves and our families.

One of the things we do at my practice (and that providers have the most resistance to) is that we see everyone for that initial visit. We’ve created a triage entry point to medical care but also to social support, financial triage, actual emotional support, and recognition and understanding for the patient that yes, you have a problem, but we are here to work with you to solve it.

All of those things get to happen because we offer the first visit, regardless of their ability to pay. In the absence of that opportunity, the barrier to quality care itself is so detrimental: It’s literally a matter of life and death.

Rewire: How do you cover the cost of the first visit if someone cannot pay?

JJ: If we have a grant, we use those funds to help us pay our overhead. If we don’t, we wait until we have the women on Medicaid and try to do back-billing on those visits. If the patient doesn’t have Medicaid, we use the funds we earn from delivering babies of mothers who do have insurance and can pay the full price.

Rewire: You’ve talked about ensuring that expecting mothers have accessible, patient-centered maternity care. How exactly are you working to achieve that?

JJ: I want to empower community-based perinatal health workers (such as nurse practitioners) who are interested in providing care to communities in need, and encourage them to become entrepreneurial. As long as people have the credentials or license to provide prenatal, post-partum, and women’s health care and are interested in independent practice, then my vision is that they build a private practice for themselves. Based on the concept that to get real change in maternal health outcomes in the United States, women need access to specific kinds of health care—not just any old health care, but the kind that is humane, patient-centered, woman-centered, family-centered, and culturally-safe, and where providers believe that the patients matter. That kind of care will transform outcomes instantly.

I coined the phrase “Easy Access Clinics” to describe retail women’s health clinics like a CVS MinuteClinic that serve as a first entry point to care in a community, rather than in a big health-care system. At the Orlando Easy Access Clinic, women receive their first appointment regardless of their ability to pay. People find out about us via word of mouth; they know what we do before they get here.

We are at the point where even the local government agencies send patients to us. They know that even while someone’s Medicaid application is in pending status, we will still see them and start their care, as well as help them access their Medicaid benefits as part of our commitment to their overall well-being.

Others are already replicating this model across the country and we are doing research as we go along. We have created a system that becomes sustainable because of the trust and loyalty of the patients and their willingness to support us in supporting them.

Photo Credit: Filmmaker Paolo Patruno

Joseph speaking with a family at her central Florida clinic. (Credit: Filmmaker Paolo Patruno)

RewireWhat are your thoughts on the decision in Florida not to expand Medicaid at this time?

JJ: I consider health care a human right. That’s what I know. That’s how I was trained. That’s what I lived all the years I was in Europe. And to be here and see this wanton disregard for health and humanity breaks my heart.

Not expanding Medicaid has such deep repercussions on patients and providers. We hold on by a very thin thread. We can’t get our claims paid. We have all kinds of hoops and confusion. There is a lack of interest and accountability from insurance payers, and we are struggling so badly. I also have a Change.org petition right now to ask for Medicaid coverage for pregnant women.

Health care is a human right: It can’t be anything else.

Rewire: You launched the National Perinatal Task Force in 2015. What do you hope to accomplish through that effort?

JJ: The main goal of the National Perinatal Task Force is to connect perinatal service providers, lift each other up, and establish community recognition of sites committed to a certain standard of care.

The facilities of task force members are identified as Perinatal Safe Spots. A Perinatal Safe Spot could be an educational or social site, a moms’ group, a breastfeeding circle, a local doula practice, or a community center. It could be anywhere, but it has got to be in a community with what I call a “materno-toxic” area—an area where you know without any doubt that mothers are in jeopardy. It is an area where social determinants of health are affecting mom’s and baby’s chances of being strong and whole and hearty. Therein, we need to put a safe spot right in the heart of that materno-toxic area so she has a better chance for survival.

The task force is a group of maternity service providers and concerned community members willing to be a safe spot for that area. Members also recognize each other across the nation; we support each other and learn from each others’ best practices.

People who are working in their communities to improve maternal and infant health come forward all the time as they are feeling alone, quietly doing the best they can for their community, with little or nothing. Don’t be discouraged. You can get a lot done with pure willpower and determination.

RewireDo you have funding to run the National Perinatal Task Force?

JJ: Not yet. We have got the task force up and running as best we can under my nonprofit Commonsense Childbirth. I have not asked for funding or donations because I wanted to see if I could get the task force off the ground first.

There are 30 Perinatal Safe Spots across the United States that are listed on the website currently. The current goal is to house and support the supporters, recognize those people working on the ground, and share information with the public. The next step will be to strengthen the task force and bring funding for stability and growth.

RewireYou’re featured in the new film The American Dream. How did that happen and what are you planning to do next?

JJ: The Italian filmmaker Paolo Patruno got on a plane on his own dime and brought his cameras to Florida. We were planning to talk about Black midwifery. Once we started filming, women were sharing so authentically that we said this is about women’s voices being heard. I would love to tease that dialogue forward and I am planning to go to four or five cities where I can show the film and host a town hall, gathering to capture what the community has to say about maternal health. I want to hear their voices. So far, the film has been screened publicly in Oakland and Kansas City, and the full documentary is already available on YouTube.

RewireThe Black Mamas Matter Toolkit was published this past June by the Center for Reproductive Rights to support human-rights based policy advocacy on maternal health. What about the toolkit or other resources do you find helpful for thinking about solutions to poor maternal health in the Black community?

JJ: The toolkit is the most succinct and comprehensive thing I’ve seen since I’ve been doing this work. It felt like, “At last!”

One of the most exciting things for me is that the toolkit seems to have covered every angle of this problem. It tells the truth about what’s happening for Black women and actually all women everywhere as far as maternity care is concerned.

There is a need for us to recognize how the system has taken agency and power away from women and placed it in the hands of large health systems where institutionalized racism is causing much harm. The toolkit, for the first time in my opinion, really addresses all of these ills and posits some very clear thoughts and solutions around them. I think it is going to go a long way to begin the change we need to see in maternal and child health in the United States.

RewireWhat do you count as one of your success stories?

JJ: One of my earlier patients was a single mom who had a lot going on and became pregnant by accident. She was very connected to us when she came to clinic. She became so empowered and wanted a home birth. But she was anemic at the end of her pregnancy and we recommended a hospital birth. She was empowered through the birth, breastfed her baby, and started a journey toward nursing. She is now about to get her master’s degree in nursing, and she wants to come back to work with me. She’s determined to come back and serve and give back. She’s not the only one. It happens over and over again.

This interview has been edited for length and clarity.