hunter of justice

Could Stupak-Pitts have a silver lining?

For years I never worried much about an outright reversal of Roe v. Wade, because I thought that the political instincts of conservative Justices would cause them to blink before they took that ultimate step, even if they had the five votes to do it.  If the right to choose were ever actually taken away from American women, the mostly dormant, somewhat ambivalent pro-choice majority would rise like a phoenix and exact revenge.  Goodbye to suburban mom Republican votes. And, although bad decisions have chipped away at it, Roe is still good law, at least formally.

More recently, I'm less certain about this underlying political calculation. If each state could decide whether to allow or prohibit abortion, many would opt for pro-choice laws much as they have today, and many women living in states where abortion was illegal would be able to travel to a location where they could obtain the procedure. 

Of course, it is also true that many would not be able to afford the time, the travel and the procedure. But those are only the poor women. My fear, to be blunt, is that if middle-class women basically retained the option to have an abortion, either formally through their state's law or informally through their own economic capacity, there would be no political price to pay for retracting the federal constitutional right entirely. And sooner or later, conservatives would figure that out.

Now Priscilla Smith, a savvy analyst of reproductive rights issues, has posted an intriguing essay at Balkinization in which she argues that the Stupak-Pitts amendment to the health reform bill might reverse this trend toward fragmentation along economic lines by putting the majority of women in the same sinking boat. Following are excerpts:

From a public relations viewpoint, it is possible that by extending the double standard that already exists for poor women’s health care to middle class women, the inequality and injustice of the restriction on funding for poor women will come into greater focus for the more fortunate. The sting of the public funding ban is much greater for poor women than it will likely prove for middle and certainly upper class women. Studies have shown that approximately one-fifth to one-third of Medicaid-eligible women who become pregnant and would have obtained an abortion are forced to carry their pregnancies to term because they cannot raise the necessary funds. Still, despite significant success in state courts which have repeatedly pointed to the harmful and discriminatory nature of the bans, the political will has not existed to change the policy on the federal level. If middle and upper class women feel the sting of discrimination that many poor women have already felt -- when the men in their lives get their Viagra prescriptions filled but they are forced to pay out of pocket for their abortions – perhaps a new understanding of inequality and what poor women have gone through will gain hold. ...

Perhaps more importantly, Stupak-Pitts could change the landscape against which an equal protection claim was heard, perhaps leading to a renewed challenge to the Hyde Amendment itself:

• First, it magnifies the equal protection violation caused by the Hyde Amendment and prevents health care coverage of one health care service, abortion, that is needed only by women, not only in the “exchange,” but by extension ..., in the private market itself, while allowing health care coverage of lots of stuff that men need, especially treatments for erectile dysfunction which anyone watching television or videos on the internet knows is a HUGE problem out there;

• Second, equal protection challenges to abortion restrictions have gained support over the last ten years or so...

• Third, remember that the U.S. Supreme Court in Harris v. McRae 448 U.S. 297 (1980) (upholding ban on federal funding for abortions in the Medicaid program), did not consider a sex discrimination claim so the field is open.

• Fourth, in Harris the Court decided was focused on a privacy claim and found that the Hyde Amendment didn’t infringe the right to obtain an abortion at all; it wasn’t the funding ban that made it harder for women to obtain abortions, it was their indigency that was too blame. As crazy as that argument might sound, it would be irrelevant in a sex discrimination claim...

Stupak amendment would result in massive cut in abortion access

The Stupak amendment to the House health reform bill, adopted by a 240 to 194 vote, does not explicitly bar any insurance plan from covering abortion, yet it achieves that effect by barring any plan that accepts federal subsidy dollars at all from including abortion coverage from the insurance exchange through which plans will be sold.  Few, if any, insurance plans will have a body of enrollees that does not include at least some receiving premium subsidies. The abortion access issue had been building for months, and finally exploded as a floor vote became imminent. (See my first post from July here; additional background here, here, and here.)  The Kaiser Family Foundation has posted helpful Qs and As. Following is an analysis of the final amendment by Jessica Arons, from Wonk Room:

Here’s what the Stupak Amendment does:

1. It effectively bans coverage for most abortions from all public and private health plans in the Exchange: In addition to prohibiting direct government funding for abortion, it also prohibits public money from being spent on any plan that covers abortion even if paid for entirely with private premiums. Therefore, no plan that covers abortion services can operate in the Exchange unless its subscribers can afford to pay 100% of their premiums with no assistance from government “affordability credits.” As the vast majority of Americans in the Exchange will need to use some of these credits, it is highly unlikely any plan will want to offer abortion coverage (unless they decide to use it as a convenient proxy to discriminate against low- and moderate-income Americans who tend to have more health care needs and incur higher costs).

2. It includes only extremely narrow exceptions: Plans in the Exchange can only cover abortions in the case of rape or incest or “where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death.” Given insurance companies’ dexterity in denying claims, we can predict what they’ll do with that language. Cases that are excluded: where the health but not the life of the woman is threatened by the pregnancy, severe fetal abnormalities, mental illness or anguish that will lead to suicide or self-harm, and the numerous other reasons women need to have an abortion.

3. It allows for a useless abortion “rider”: Stupak and his allies claim his Amendment doesn’t ban abortion from the Exchange because it allows plans to offer and women to purchase extra, stand-alone insurance known as a rider to cover abortion services. Hopefully the irony of this is immediately apparent: Stupak wants women to plan for a completely unexpected event.

4. It allows for discrimination against abortion providers: Previously, the health care bill included an evenhanded provision that prohibited discrimination against any health care provider or facility “because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.” Now, it only protects those who are unwilling to provide such services.

One in three women will have an abortion in their lifetime. Eighty-seven percent of employer plans offer abortion coverage. None of that will matter if the Senate takes its cues from the House. In every other way, this bill will expand access to health care. But for millions of women, they are about to lose coverage they currently have and often need.

New proposal attempts to thread abortion needle in health reform

Anti-abortion House Dems, whose number is large enough to defeat health reform, have balked at the compromise worked out earlier to avoid the use of federal funds for abortion and are insisting on additional conditions. From the NY Times:

Under the House bill, health plans are neither required nor forbidden to cover abortions. Under [Rep. Brad] Ellsworth’s proposal, if the public plan decides to cover abortion, it would have to hire private contractors to handle money that might be used for that purpose.

Supporters of abortion rights, like the Planned Parenthood Federation of America, said the proposed restrictions went too far. Laurie Rubiner, vice president of Planned Parenthood, said Mr. Ellsworth’s proposal would “tip the balance away from women’s access to reproductive health care. Abortion should not be treated any differently from any other medical benefit or procedure,” Ms. Rubiner said. “It is our hope and expectation that the secretary would decide to include coverage of abortion in the public option.” [The bill calls for the Secretary of HHS to decide the criteria for benefits.]

On the other hand, Liz Farrar, a spokeswoman for Mr. Ellsworth, said, “We think the public option will become the pro-life option.”

The bill stipulates that in every part of the country, there must be at least one insurance plan that provides coverage of abortions and at least one that does not.

Douglas D. Johnson, legislative director of the National Right to Life Committee, said Mr. Ellsworth’s proposal was “a phony compromise. It serves no purpose except to assist Speaker Pelosi in peeling votes away from an amendment that would flatly prohibit the public plan from paying for elective abortions,” Mr. Johnson said. That amendment was offered by Representative Bart Stupak, Democrat of Michigan. Mr. Johnson said Mr. Ellsworth’s proposal authorized “a money-laundering scheme under which the health secretary would hire an agent to pay abortion providers.”

The Congressional Research Service said recently that money received by the government insurance plan, including premiums, “may be classified as federal funds or government funds.” But in a memorandum analyzing the House bill, Prof. Laurence H. Tribe of Harvard took issue with that conclusion, which he described as “an exercise in sophistry.” Under the House bill, he said, abortion services could be financed “only by special private premiums that are segregated” from other money. Thus, he concluded, the House bill, “as it currently stands, does not authorize governmental funding of abortion.”

Split on abortion threatens health reform

CQ reports on an abortion impasse in the House that will hit the wall when the health reform bill goes to the floor. Anti-choice Dems are insisting that there be no allowance of abortion services in any plan to be offered in insurance exchanges, a position that would effectively preclude coverage of abortion for millions of women.

A showdown is shaping up among Democrats as abortion foes press House leaders to change the health care bill to explicitly ban abortion funding, or at least permit a floor vote on the issue. The effort led by Bart Stupak of Michigan and Daniel Lipinski of Illinois could have far-reaching implications for the fate of the legislation when the House takes up the health care overhaul late next week.

Stupak, who has been at the forefront of a group of several dozen anti-abortion Democratic dissidents, said he would likely vote against a rule providing for floor action on the health care overhaul bill if party leaders do not come his way. “I’ve got to have somewhere to responsibly express my opinion and that of my district,” Stupak said.

House Majority Leader Steny H. Hoyer of Maryland points to the abortion disagreement as perhaps the most important unresolved issue as he prepares to move the measure to the floor. Stupak said he would look for ways to work with Republicans, if necessary, and moderate senators including Bob Casey of Pennsylvania to override the decision by House Speaker Nancy Pelosi , D-Calif., to omit an outright ban on abortion funding from the legislation she unveiled Thursday.

The anti-abortion Democrats want to win language that would essentially extend the existing abortion funding ban known as the “Hyde amendment” to the new and expanded programs that would be created by the health care overhaul. Mindful that abortion is a politically divisive issue within her caucus, Pelosi and her leadership team have sought to promote a compromise, but the anti-abortion Democrats consider it to be too weak.

The compromise language is similar to current restrictions on the use of federal Medicaid funds. The provision would ensure that federal dollars are kept in separate accounts when they flow into health insurance plans, and that federal accounts could not be used to fund an abortion.

Abortion and health reform - state of play

The following is a chart by Jessica Arons at the Center for American Progress, published at RH reality check, which updates my earlier post describing the Capps Amendment by adding a comparison to the Senate Finance Committee bill: 

Current law	Capps Amendment to House health care reform bill	Senate health care reform bill
The Hyde Amendment
The Hyde Amendment prohibits federal Medicaid and Medicare money from being spent on most types of abortion, including pregnancies that threaten the woman’s health or involve fetal anomalies. Federal money can only be used to pay for an abortion when the pregnancy threatens the life of the woman or results from rape or incest.	The Hyde Amendment restrictions would apply to all insurance plans that participate in the health insurance exchange, whether those plans are operated by private insurers or by the government’s “public option.” In other words, no federal funding, including affordability credits or other subsidies, would be used to pay for abortions beyond what is currently allowed. Private premiums would be segregated from public funds and only the private premiums could pay for abortion services beyond those allowed by the Hyde Amendment.	The Hyde Amendment restrictions would apply to all insurance plans that participate in the health insurance exchange, whether those plans are operated by private insurers or member-run co-ops. In other words, no federal funding, including affordability credits or other subsidies, would be used to pay for abortions beyond what is currently allowed. Private premiums would be segregated from public funds and only private premiums could pay for abortion services beyond those allowed by the Hyde Amendment.
Other government programs
Laws similar to the Hyde Amendment that restrict coverage of abortion services also apply to military employees and their dependents, federal employee health plans, members of the Peace Corps, women in federal prisons and detention centers, and Native Americans who receive health care through the Indian Health Services.	Current restrictions on federal spending for abortion services would not change.	Current restrictions on federal spending for abortion services would not change.
States
States have the option to use their own money to pay for abortion services beyond what is permitted under the Hyde Amendment, and 17 states currently do so. Federal money subsidizes these state Medicaid programs even though they cover abortion.	Federal money would subsidize plans that cover abortion—just like they currently do for state Medicaid plans and employer plans—but no public money would be used to pay for abortion services not allowed by the Hyde Amendment. Government money would only be used to help pay for the other medical services covered by those plans.	Federal money would subsidize plans that cover abortion—just like they currently do for state Medicaid plans and employer plans—but no public money would be used to pay for abortion services not allowed by the Hyde Amendment. Government money would only be used to help pay for the other medical services covered by those plans.
Private insurance
Private insurance companies are allowed to decide whether to cover abortion services, and 87 percent of typical employment plans currently provide such coverage. The federal government subsidizes these plans through an employer tax credit, even if the plans include abortion.	Each plan in the exchange could decide whether to cover abortion services beyond those allowed by the Hyde Amendment, provided that at least one plan in each market area offers such services and one plan does not. This provision goes well beyond current law to guarantee that consumers have the option to purchase a plan that suits their medical needs and their values. No abortion services—even those allowed by the Hyde Amendment for cases that threaten the woman’s life or result from rape or incest—can be mandated as part of a minimum benefits package.	Each plan in the exchange could decide whether to cover abortion services beyond those allowed by the Hyde Amendment, provided that at least one plan in each market area offers such services and one plan does not. This provision goes well beyond current law to guarantee that consumers have the option to purchase a plan that suits their medical needs and their values. No abortion services—even those allowed by the Hyde Amendment for cases that threaten the woman’s life or result from rape or incest—can be mandated as part of a minimum benefits package.

Lambda settles Benitez case

Last year, Lambda Legal won a decision in the California Supreme Court that a private medical practice could not assert the religious beliefs of its doctor-owners as a defense to a claim that a lesbian had been denied services because of her sexual orientation. Yesterday, rather than take the case to trial, the defendants agreed to settle with the plaintiff, Guadalupe Benitez.  Mucho kudos to lead counsel Jenny Pizer.

From the San Diego Union Tribune:

A long-running lawsuit between an Oceanside lesbian couple and two doctors that pitted the civil rights of same-sex couples against religious freedom for physicians has been settled. The terms of the settlement were not disclosed. It ends a lawsuit filed in 2001 by Guadalupe Benitez against Drs. Douglas Fenton and Christine Brody at North Coast Women's Care in Vista.

Benitez alleged that the doctors told her they would not inseminate her because their religious convictions – they are Christians – prohibited them from doing the procedure for a lesbian couple. Benitez went to another doctor, got pregnant and had a child with her partner, Joanne Clark. The boy is now 7. The couple also have 4-year-old twins....

  ... [T]he doctors and the couple released a joint statement in which the doctors said they were sorry that Benitez and Clark felt they were being treated differently because of their sexual orientation. The doctors said they want “all of their patients, including those who are lesbian and gay, to feel welcome and accepted in their medical practice, and are committed to treating all of their patients with equal dignity and respect in the context of the highest quality of medical care.”

The doctors contended as the case went on that they declined to do the procedure because Benitez was unmarried – not because of her sexual orientation. But there was also evidence in the case early on that the doctors had acknowledged that they did not inseminate her because she is a lesbian....

“It was a really hard thing to go through, but it was worth it because we have hopefully paved the way for other people, and made sure that this is not going to happen to someone else,” [Benitez] said....

The state's civil rights law ... allow[s] doctors to opt out of some kinds of medical procedures, such as abortion. But if a physician does offer to do certain procedures, they must be made available to all, said Jennifer Pizer of Lambda Legal, an advocacy group for same-sex rights.

While the exact amount of the settlement is private, Pizer said it was enough so that the couple's children “will be able to have whatever type of education they want to have in the future.” ...

Court dismisses case brought by partner denied hospital visitation

In a case with heart-wrenching facts, the federal district court in Miami has ruled that Jackson Memorial Hospital violated no duties of care in denying visitation to the partner and children of a patient who lay dying and in largely ignoring their requests for updates as to the patient's status. In Langbehn v Jackson Memorial Hospital, the court held that Janice Langbehn, who furnished a copy of her health care power of attorney to hospital staff shortly after her partner Lisa Pond was admitted, had no basis to recover in tort for the way that she was treated during the eight hours she spent in the trauma center [ER] waiting area. 

The court accorded no weight to proof of bias behind why Langbehn was treated as she was, and instead acknowledged only a narrow potential zone of liability for situations in which the health care surrogate could show that the denials of information or visitation create medical risk for the patient or that the surrogate would have made different decisions regarding care had she been more fully informed.

Lambda, which represents Langbehn, describes the facts as follows:

While on a family cruise leaving from Miami, Lisa Pond, a healthy 39 year-old, suddenly collapsed. She was rushed to Miami's Jackson Memorial Hospital with her partner Janice and three children following close behind. There, the hospital refused to accept information from Janice about her partner's medical history. Janice was informed that she was in an anti-gay city and state, and she could expect to receive no information or acknowledgment as Lisa's partner or family. A doctor finally spoke with Janice telling her that there was no chance of recovery. Other than one five minute visit that was arranged by a Catholic priest at Janice's request to perform last rites, and despite the doctor's acknowledgment that no medical reason existed to prevent visitation, neither Janice — who provided the hospital with a medical Power of Attorney document — nor their children were allowed to see Lisa until nearly eight hours after their arrival. Soon after Lisa's death, Janice tried to get her death certificate in order to get life insurance and Social Security benefits for their children. She was denied both by the State of Florida and the Dade County Medical Examiner.

The court agreed that the hospital had a duty to inform Langbehn about Pond's condition and to allow her, as the surrogate, to make decisions. However, it found that this duty was not breached because doctors consulted with Langbehn twice (during the eight hours), including once when they sought her permission to use a brain monitor. Because there was no medical need, as determined by the physicians, to provide additional information to Langbehn, the court ruled that the hospital staff had no duty to do so. Further, the court held that the duty to provide any information ceased after last rites were administered because there were no further medical decisions to be made.

The court's reasoning was similarly strained as to visitation. Staff in the ER where Pond was initially taken repeatedly refused Langbehn's requests to see Pond, despite one doctor's statement that there was no medical reason for Pond's family not to be with her. The sole exception was when last rites were administered. Seven hours after she was admitted, Pond was transferred to a non-trauma room in a different part of the hospital, but Langbehn was not told. An hour later, Pond's sister arrived. Hospital staff treated the sister as a legitimate relative, and informed her of Pond's transfer. Together with the sister, Langbehn and the children were then allowed visitation with Pond until she died.

On these facts, the court found no liability because "doctors at a trauma unit do not have a freestanding legal duty, untethered to informed consent..., to allow visitation with a patient who is in critical condition and undergoing treatment ... or to allow visitation with a terminal patient ... who is going to be transferred to a regular room where visitation will be permitted...[D]ecisions as to visitation must be left to the medical personnel in charge of the patient..."

In a similar case, the Washington Court of Appeals ruled that a patient's life partner could sue for outrage and negligent infliction of emotional distress for having been excluded from the patient's room for long periods the night before her death.  Reed v. ANM Healthcare, 147 Wash. App. 1044 (2008). There the physicians had allowed visitation, but a nurse countermanded the order.  The judge distinguished the facts in the Florida case because it was the physicians who barred the visitation that Langbehn sought.

At the very end of his opinion, Judge Jordan noted that "the defendants' lack of sensitivity and inattention" to the plaintiffs "caused them needless distress...[Defendants' actions] exhibited a lack of compassion and was unbecoming of a renowned trauma center...Unfortunately, no relief is available..."

In this case, tragic facts made very bad law, although the public education value of the ruling will probably be enormous. Not only should Lambda appeal, but Florida legislators should swiftly enact provisions that clearly prohibit this kind of conduct.

New structural intervention strategies for AIDS prevention emerging in San Francisco

The Stop AIDS Project in San Francisco has begun presenting initial findings from its Where study, which it undertook in conjunction with the University of California San Francisco, the San Francisco Department of Public Health and the California STD/HIV Prevention Training Center.

From Bay Area Reporter:

... [T]he Where study ... collected feedback from nearly 200 one-on-one conversations – mainly with local gay men – concerning different ways to improve the environments of local bars, sex clubs, and cruising Web sites to create an atmosphere more conducive to safer sex.

This approach to HIV and STD prevention, known as structural intervention, is pioneering in that it places an emphasis on making changes at high-risk venues as a means to reduce the number of infections. It's more common that prevention strategies focus on altering high-risk behavior of individuals, not places.

Eventual structural intervention programs may include creating easier access to free water in bars, promoting Web sites for "protected sex only," or providing wrist bracelets at sex clubs reflecting sexual preference, desired acts, positions, or HIV status. The Where study includes over 50 such suggestions, all of which will be further evaluated before any pilot programs are implemented.

Jen Hecht, education director at Stop AIDS, said that the concept of structural intervention has seen notable success on a larger scale. For example, seatbelt laws are considered a structural intervention, as are policies allowing the addition of fluoride to public tap water to prevent tooth decay. Hecht and her team members are focusing on local solutions that use the same concept; creating practices beneficial to a broad spectrum of the community, without increasing the burden placed on any individual.

"A guiding question for this project was what if we could reduce the chance of someone getting HIV or STDs without changing the frequency of condom usage?" Hecht told an audience of about 20 who gathered August 17 at the LGBT Community Center for the agency's community report on HIV data.

While Stop AIDS will continue running and developing its other programs, including those focusing on safer sex practices for individuals, the staff is introducing the new approach as a complement to these programs. Stop AIDS reported that it is the first organization of its kind to be conducting an expansive exploratory study of the concept.

"Structural interventions are not new in public health discourse, but they are new in HIV prevention," said Executive Director Kyriell Noon. "Given the fact that the number of new HIV infections in San Francisco appears to have reached a plateau, we need to do something different to effect change.

Abortion building as health reform issue

Among the many problems facing progressives who want to enact a universal access bill this year that will work (i.e. not just shovel more dollars to insurers and big pharma) is abortion, as I've noted before. The only body to have dealt head-on with this issue so far is the House Energy and Commerce Committee, which adopted basically  the same compromise position that was developed 16 years ago in the Clinton effort.

The committee position has several components.  With regard to access via plans offered in new insurance exchanges, the amendment says there would have to be at least one plan that covers abortion and one that doesn't in every part of the country. As far as public monies subsidizing abortion through supplements to allow low-income persons to purchase insurance, the amendment allows coverage of abortion, but the money would have to come from the portion of the premiums that are paid by the individuals. A sliver of those monthly premiums would be segregated and abortion services would be reimbursed from that separate account.The Hyde Amendment and any state law restrictions on access to abortion would remain in place. Lastly, what would the default position be?  Most of the current legislation punts to the Secretary of HHS the authority to promulgate regulations defining what will and will not be required of a basic benefits plan.

Will this compromise hold?  It's not a good sign when elements of the Roman Catholic hierarchy, a faith group that has fought for access to care for the poor for many years, are preaching that no reform is better than any plan that offers an abortion option. As the legislative process becomes more focused on specific language in the coming months, the pressure around this aspect of health reform will grow ever more intense.

Health reform hits abortion wall

With congressional committees having entered the phase of proposing specific legislative language for health reform, an old problem has resurfaced: health reform and abortion rights are on a collision course.  I refer to it as an old problem because it is one of the issues I dealt with when serving in the Clinton administration during the last effort to achieve universal coverage. We struggled then to devise mechanisms that would preserve choices for both sides. The threat to the overall reform effort never became visible, though, because reform crashed for other reasons before public attention focused on that level of detail.  The good news this year is that we seem to be far enough along that abortion has become a meaningful concern.

There are three contexts in which inclusion of abortion is relevant: the structure of a public option plan, the basic benefits package that all private group health insurance plans would have to include, and the use of public subsidies to defray premium costs for low-wage workers and others who need assistance. In each case, conservatives frame the question, as the NY Times article did this morning, as the use of public funds to finance programs that include access to abortion. 

That framing hides some harsh realities.  One is that if a basic benefits package barred coverage for abortion, women who now have coverage through their workplace (or other) health insurance would lose it. That would amount to a massive cutback in access to choice for tens of millions of women. Here's the way the issue should be framed, straight out of my notes from 1993:

• It is essential to maintain the existing coverage and access to services that women now have under private health insurance plans; and
• The basic benefit package design must include all pregnancy-related services that are medically necessary and/or appropriate.

You can expect that most reporting of this debate will treat it as one more example of how the crazy wild card issue of abortion screws up rational political deliberation.  It goes deeper than that, though. The abortion problem in health reform exemplifies the way that sexuality-related questions privatize our political discourse. And, like the Hyde Amendment with which it resonates, it's a morality debate that is likely to get resolved by a compromise deal cut on the backs of the poor - specifically, inscribed on the bodies of poor women. No public funds for abortion involves a tiny number of dollars (the 1993 estimate was that abortion services accounted for 0.3 per cent of the average insurance premium), but the amount looms large for the individual woman who needs it.

The miracle of rebranding: abstinence = health

By Jessica Valenti, from The Nation:

...[A]bstinence organizations are not going away. In fact, they're getting organized. Well aware that their cause is in trouble and unpopular, purity proponents are revamping their image to appear more mainstream. ...

One of the "Strategic Objectives" now listed on the National Abstinence Education Association (NAEA) website is "Rebranding the abstinence message." So when the NAEA met for its annual lobby day in March, high on the list of priorities was developing a strategy for continuing to receive federal dollars. Joe Sonka, managing editor of the Advocates for Youth blog Amplify, wrote of the lobby day, "Instead of abandoning their demonization of condoms and adherence to social conservative ideology over sound science, they would simply rebrand themselves as a curriculum that 'wasn't just about abstinence,' but was all about 'holistic approaches' to 'healthy lifestyle choices.'"

At an April 29 Capitol Hill briefing, [the head of the NAEA] told the room that abstinence-only education is "not a 'just say no' message." "This is not abstinence only, this is a holistic message that prepares and gives students all of the information they need to make healthy decisions," [she] said. In fact, the NAEA isn't even calling its programs "abstinence only" anymore--now they're "abstinence centered."

Similarly, WhyKnow--a major provider of abstinence-only education curriculums--recently changed its name to On Point, its tag line to "Direction for Life" and hired PR company Maycreate Idea Group to help recast its image. Lesley Scearce, executive director of On Point, said in an article for the Chattanoogan that the organization is trying to "get teens involved in new, positive directions that lead to a healthier, more fulfilling life. Without a re-naming, re-branding and re-positioning, this new direction wouldn't have been possible."...

The good news in all of this is President Obama's budget cutting most abstinence-only education funding and seeking to redirect the funds to "teen pregnancy prevention programs." The bad news is that 25 percent of the $164 million marked for teen pregnancy prevention would be open to abstinence-only programs, and the language in the budget doesn't make room for initiatives to curb sexually transmitted infections....

Introductions ... ENDA, meet EHDLA - you're perfect for each other

The important effort to enact the Employment Non-Discrimination Act got its official launch on Wednesday, with the introduction of HR 3017.  Lead sponsor Barney Frank was joined on the bill by 117 cosponsors. This year's version contains no surprises: it is trans-inclusive, but also grants religious groups a free pass to discriminate. Most people think the trans-inclusive version will pass the House, and that a version with a more proportional religious exemption would not.

The day before, Rep.Tammy Baldwin introduced a new and largely unexpected (beyond the Hill) bill, the Ending Health Disparities for LGBT Americans Act, HR 3001.  EHDLA is a comprehensive collection of reforms covering such topics as non-discrimination in federal health programs, cultural competence training for health professionals, Medicare benefits for same-sex partners, etc etc. The goal is not so much enactment of the package as creating a resource upon which progressives can draw for ideas as health reform (hopefully) progresses.

Personally, I think they make a lovely couple.

California Supreme Court: no religious exemption for providing medical care to LGBT patients

Sometimes a case grabs attention less because of how it changes the law than because the parties or the context seem saturated with symbolic or cultural resonance. North_Coast_Women's_Medical Care Group_v_San Diego Superior_Court falls into that second category.

In this case, the California Supreme Court ruled yesterday that doctors have no religious liberty right to deny treatment because of a patient's sexual orientation.  The case arose when Guadalupe Benitez sought fertility treatment. The physician whom they consulted told Benitez and her partner that she would not, for religious reasons, perform intrauterine insemination (IUI) on Benitez. Instead, what ensued was a year of treatment using medication, with Benitez continuing attempts to self-inseminate at home. When it became clear that this was not working, and during a period when the initial physician was away, Benitez sought IUI from another doctor at the same clinic, who informed her that he, too, had religious objections to treating her. She was referred to a third doctor, outside of that practice, who eventually performed successful IVF.

The importance of the case comes from the defendants' claim that they had a First Amendment right not to treat Benitez, thus trumping her rights under a California statute that prohibits sexual orientation discrimination. Under federal law, the doctors had little chance because the state needs to show only a rational basis for a neutral law of general applicability, in order to defeat the claim for an exemption based on religious belief. The more interesting religious liberty claim was under state law, because the standard of review question had not been decided.

On that point, the court held that even under the most searching review, the physicians had no viable religious liberty claim because the state's interest in preventing discrimination based on sexual orientation rose to the level of compelling. This holding as to the importance of the public's interest in  ending sex/o discrimination conceptually rounds out the same court's ruling in the Marriage Cases, 43 Cal. 4th 757, that such discrimination is inherently suspect. As in that case, the primary precedential value is for state law, binding for California and potentially persuasive precedent for other states.

Does this decision extinguish all possibilities for doctors to assert religious objections to providing care? No - the court said that doctors in such situations had two options.  First, they could decline to perform a specific procedure, an act not forbidden by the anti-discrimination law, so long as they decline to perform it for all patients. Second, they could avoid a personal conflict "by ensuring that every patient requiring IUI receives full and equal access to that medical procedure through a North Coast [medical group] physician lacking the defendants' religious objections."

The second option requires that doctors genuinely prioritize the needs of patients, including patients who live different lives and hold different values than the doctors treating them. Its effect would be to insure that a medical practice opens for business only when it is sufficiently staffed to provide care to every category of patient, not just the ones the doctors feel are "deserving" of it.  The last time I checked, that was called ethics.

Breaking News: Benitez decision expected Monday

The Supreme Court of California has just announced that its decision in North Coast Women's Care Medical Group v. Superior Court, 137 Cal.App.4th 781 (2006), is forthcoming. In that case, Guadalupe Benitez sued a physician practice for refusing to provide her with intrauterine insemination because she is lesbian. Defendants asserted their federal and state constitutional rights to the free exercise of religion as an affirmative defense. The trial court granted Benitez's motion for summary judgment on the free exercise issue and the Court of Appeal reversed, on the ground that defendants had raised a triable issue as to whether their refusal was based on Benitez's marital status, a characteristic not protected by the anti-discrimination law, rather than because of her sexual orientation. Benitez is represented by Lambda Legal; Lambda senior attorney Jenny Pizer argued the case before the Califonia Supreme Court. The case has generated significant media attention because of the conflict it poses between religious liberty and LGBT equality.

SDNY allows Medicaid to deny gender transition treatment

In a ruling last week arguably even worse for Medicaid law than for transgender health-related advocacy, Judge Kevin Castel of the Southern District of NY held that an MTF trans person had no cause of action against the decision of NY State's Medicaid agency to eliminate coverage for any "care, services, drugs or supplies rendered for the purpose of gender reassignment." Casillas v. Daines, 2008 WL 3157825.   [Opinion here]

The decision turned less on transgender-specific issues than on the judge's extraordinarily cramped reading of Medicaid law. Judge Castel found that the entitlement to services established in the Medicaid statute was essentially eviscerated by a regulation that allows state agencies (Medicaid is a joint federal-state program, administered by the states) to "place appropriate limits" on services through "utilization control procedures." The phrase "utilization control" generally refers to a cap on the number of events within a certain category, such as hospitalizations or doctor visits.

In what appears to be the first judicial decision to adopt this interpretation, Casillas holds that "utilization control" is so unclear that it could mean almost anything. As a result, the court reasoned, the plaintiff lacked an enforceable right of action for denial of benefits because the language of the regulation so undercut the statutory text that one could not say that a right had been unambiguously conferred, as required under Blessing v. Firestone, 520 U.S. 329 (1997). Rather, this aspect of the Medicaid entitlement had been rendered too "vague and amorphous" for judicial enforcement.

This is a terrible blow to Medicaid recipients, persons who are so indigent that they qualify despite an extraordinarily strict means test to get into the program. Nothing in the Casillas opinion limits its applicability to gender reassignment care; the same argument could be deployed with regard to other conditions as well. To my knowledge, no court of appeals or even another district court has relied on this particular analysis in granting a motion to dismiss for failure to state a claim.

Plaintiff also challenged the NY State policy on equal protection grounds, an argument rejected by the court in a few sentences. Ruling that the policy needed to meet only a rational basis standard, the court found "a more than sufficient rational basis" in the agency's stated concern with health (the risk of complications from genital surgery and long-term administration of estrogen) and with the need to conserve limited medical resources.