hunter of justice

Judge invites challenge to HHS decision that blocked access to emergency contraception

The Center for Reproductive Rights announced Tuesday that it will reopen a lawsuit filed in 2005 in order to challenge unnecessary age restrictions on emergency contraceptives imposed last week by the Obama administration. The lawsuit - Tummino v. von Hamburg -  was originally filed against the FDA. At a hearing on Tuesday, U.S. District Judge Edward Korman invited the Center to refile and expand the case in order to contest the action by U.S. Department of Health and Human Services (HHS) Secretary Kathleen Sebelius overruling the FDA’s recent approval of "Plan B" contraceptives. 

According to AP:

...[Judge] Korman was highly critical of the government's handling of the issue when he ordered the FDA two years ago to let 17-year-olds obtain the medication. At the time, he accused the government of letting "political considerations, delays and implausible justifications for decision-making" cloud the approval process. On Tuesday, he said "it seems to me like we're going through a re-run."

In deciding to limit the over-the-counter availability of the drug, Sebelius said she had concluded that the data submitted for the pill did not establish that prescription dispensing requirements should be eliminated for all ages. She said the studies submitted to the government did not include data on all ages...

Korman repeatedly questioned the lawyer for the government on whether the study data included information on girls older than the youngest girls of reproductive age but younger than the 17-year-olds currently able to get the pill, and whether they would be able to understand the pill instructions and use it properly. Assistant U.S. Attorney Scott Landau said he couldn't answer that question, both because it was proprietary information and because the issue hadn't actually been raised for the court to rule on.

In his 2009 decision ordering the FDA to reconsider the position it had taken in 2003 that access must be available by prescription only to girls 17 and older, Judge Korman found that the agency under the Bush Administration had "acted in bad faith and in response to political pressure," "departed in significant ways from the agency's normal procedures," and engaged in "repeated and unreasonable delays." In addition, the court found that the FDA's justification for denying over-the-counter access to 17 year olds "lacks all credibility," and was based on "fanciful and wholly unsubstantiated ‘enforcement' concerns."  

Two powerful new reports on lgbt families and youth

Two major reports came out today that have the potential to significantly influence policy debates in their respective, related areas.

A trio of organizations published All Children Matter: How Legal and Social Inequalities Hurt LGBT Families, which spells out in more than 100 pages (with more than 450 footnotes) the ways in which anti-gay policies impede three key needs of every child: stable, loving homes; economic security; and health and well-being. In each area, the report documents the problems, demonstrates the effects of discriminatory laws and policies, and provides recommendations. The Child Welfare League of America wrote the foreword and endorsed the report, which was co-authored by the Movement Advancement Project, Family Equality Council and the Center for American Progress. 

The second publication is from the U.S. Commission on Civil Rights:  Peer to Peer Violence and Bullying: Examining the Federal Response. As a threshold matter, its very issuance signals that the Commission is alive again, after having been starved and sidelined by years of Republican administrations. This  report, also lengthy and well-documented, includes specific findings and recommendations:

The Commission, by majority vote, concluded  that  bullying and harassment, including bullying and harassment based on sex, race, national origin, disability, sexual orientation, or religion, are  harmful to American youth, and developed findings and recommendations to address the problem, including the following recommendations:

 The U.S. Departments of Education and Justice should track their complaints/inquiries regarding sexual harassment or gender-based harassment by creating a category that explicitly encompasses LGBT youth.

 The U.S. Departments of Education and Justice should track complaints that they receive regarding harassment based solely on sexual orientation that are closed for lack of jurisdiction.

 The U.S. Department of Education should track complaints that it receives regarding harassment based solely on religion that are closed for lack of jurisdiction.

 The U.S. Department of Education should consider issuing a new Dear Colleague Letter regarding the First Amendment implications of anti-bullying policies. The new Letter should provide concrete examples to clarify the guidance that the Department of Education previously provided [on] July 28, 2003.

Two really impressive contributions. 

Bureau of Prisons changes its treatment policy for trans inmates

GLAD has settled the case it brought on behalf of Vanessa Adams, a Federal Bureau of Prisons (BOP) inmate at FMC Butner in North Carolina who has gender identity disorder (GID). Adams sued BOP in order to receive appropriate treatment for her GID, and the settlement is based on a recent Bureau of Prisons policy adopted in response to the lawsuit.

Under the settlement, BOP is ending its so-called “freeze frame” policy in which treatment for any person with GID is kept frozen at the level provided at the time he or she entered the federal prison system. The new policy states in part:

[I]nmates in the custody of the Bureau with a possible diagnosis of GID will receive a current individualized assessment and evaluation.  Treatment options will not be precluded solely due to level of services received, or lack of services, prior to incarceration...

It further specifies that "current, accepted standards of care will be used as a reference for developing the treatment plan."

How same-sex marriage, without more options, can set back progressive goals

Once again, the NY Times has discovered an issue that many of us have been wrestling with for years: how to preserve alternatives to marriage for gay and straight couples who want other options.

This problem will be somewhat alleviated in 2014, when the health insurance exchanges mandated by the health reform law will come into effect. Exchanges will guarantee that every individual, regardless of marriage or other relationship, will be able to purchase a health insurance policy at group rates. But those policies are likely to be inferior to what is available through employer-sponsored insurance and will cost more than the incremental "family" premium that applies to most workplace policies. Moreover, the policies offered on exchanges will do nothing to address the range of non-workplace related issues that often come with partner or marital status, such as visitation and inheritance rights.

Now that same-sex marriage has been legalized in New York, at least a few large companies are requiring their employees to tie the knot if they want their partners to qualify for health insurance.

Corning, I.B.M. and Raytheon all provide domestic partner benefits to employees with same-sex partners in states where they cannot marry. But now that they can legally wed in New York, five other states and the District of Columbia, they will be required to do so if they want their partner to be covered for a routine checkup or a root canal.

On the surface, this appears to put the couples on an even footing with heterosexual married couples. After all, this is precisely what they have been fighting for: being treated as a spouse. But some gay and lesbian advocates are arguing that the change may have come too soon: some couples may face complications, since their unions are not recognized by the federal government.

“Even with the complications, many people will want to get married for the reasons people want to get married,” said Ross D. Levi, executive director of the Empire State Pride Agenda. “But from our perspective, to hinge something as important as insurance for your family to what is still a complicated legal matter for same-sex couples doesn’t seem to be a fair thing to do.”

He said that there were a variety of reasons — legal, financial and personal — that companies should keep the domestic partnership option at least until gay marriage was recognized at the federal level. Legally speaking, getting married could create immigration issues or it could potentially muddy the process of adopting a child. In some instances, he added, an employee may work in a gay marriage state but live in a neighboring state that does not recognize the marriage. The couple may want to wait to marry until they can be legally wed in their home state.

“There are certainly reasons why a couple may not wish to marry,” added Camilla Taylor, marriage project director at Lambda Legal. “People with certain immigration statuses might want to think very carefully before getting married. There are some types of visas that are meant to be temporary, and if you get married to someone who is a citizen, it could flag your renewal application and reflect your more permanent decision to stay.”

When it comes to adopting a child, couples may run into trouble if they are trying to adopt from a place that restricts same-sex married couples from adopting. Having one parent adopt while still single may be easier. “If you want to be able to answer honestly in paperwork, multiple interviews and background checks, then you won’t want to get married,” Ms. Taylor said, adding that many foreign countries ban adoptions to same-sex couples.

Marrying could also have serious implications for couples who relocate to a nonmarriage state, and ultimately decide to split up. Getting a divorce can be complicated, since one member of a couple may have to return to the gay marriage state and live there before their split can be completed.

The employers making the changes said they spoke regularly with their gay and lesbian employee groups and planned to phase in the requirement. Corning, based in Corning, N.Y., said it would offer a reasonable grace period, though it had not completed the details.

“After waiting so much time for that right, we want them to have the opportunity to enjoy that,” said Christy Pambianchi, a senior vice president for human resources at Corning, which put the policy into effect in New Hampshire and Massachusetts when gay marriage became legal there. She said employees did not raise concerns about the requirement. “They are delighted,” she said.

Raytheon, based in Waltham, Mass. — another state where gay marriage is legal — said it would give employees several months to comply with its marriage requirement. Like Corning and I.B.M., the company said domestic partner benefits would remain in states where couples cannot marry (Raytheon also has an exemption for active members of the military, so they are covered for benefits without having to marry. Getting married violates the “don’t ask, don’t tell” policy, which is being phased out).

I.B.M., based in Armonk, N.Y., said its workers would have up to a year to get married to maintain their current benefits.

At least for now, these companies seem to be in the minority, though it is unclear whether more employers will follow their lead. Eastman Kodak, based in Rochester, said it would continue to offer domestic partner coverage to both same-sex and opposite-sex partners.

“My impression is that there has been lots of discussion about dropping domestic partner coverage when marriage is first opened up to same-sex couples, but very few employers actually end up taking this step,” said Jennifer C. Pizer, legal director at the Williams Institute, which studies sexual orientation law and policy issues. “Some employers initially believe that it is fairer of them to impose the same marriage requirements on all employees, regardless of sexual orientation. But then employees and others explain that employees with a same-sex life partner remain in difficult circumstances due to the continuing federal discrimination.”

Whether same-sex couples marry, they will still be responsible for paying federal income taxes on the value of their partner or spouse’s benefits since they are not recognized by the federal government as an economic unit, unless the person covered is considered a dependent. Couples will not owe those taxes at the state level in places like New York that recognize gay marriage.

But it should become easier for gay employees who marry and live in New York to obtain insurance for their spouses. (There are an estimated 42,000 same-sex couples in New York, according to the Williams Institute.) Not only are the same-sex spouses of state workers eligible for spousal coverage, but the same goes for many people who work for private employers.

There could be some exceptions, however. Employers who do not contract with an insurance company but instead pay for health benefits out of their own assets — so-called self-insured plans — are not subject to the state’s insurance laws but are governed by federal law.

Most large employers have self-insured plans, said Helen Darling, president of the National Business Group on Health, a membership organization that focuses on health policies for large employers. That means they can choose to cover same-sex employees, but they do not have to. While virtually all large company plans cover legal spouses, she added, some companies offer domestic partner benefits only to gay employees who do not have the option to marry. (Some companies also extend the benefits to heterosexual unmarried couples.)

“I am getting a lot of questions about what other employers are doing,” Ms. Darling said. “I see a movement coming where marriage will be a factor where marriage is possible.”

HHS takes lead in laying foundation for data-driven policies on lgbt health issues

From Metro Weekly:

Today, the Department of Health and Human Services announced a plan to include sexual orientation and gender identity in health data collection, a result of discretion granted to the secretary of HHS in a provision of the Affordable Care Act addressing data collection regarding health disparities. 

Specifically, today's plan requires "HHS [to] integrate questions on sexual orientation into national data collection efforts by 2013 and begin a process to collect information on gender identity." 

The release notes that the plan includes the testing of questions on sexual orientation to potentially be incorporated into the National Health Interview Survey.  According to today's information, HHS also intends to convene "a series of research roundtables with national experts to determine the best way to help the department collect data specific to gender identity."

Under section 4302 of the Affordable Care Act, data collection efforts to understand health disparities relating to race, ethnicity, sex, primary language and disability status are required. The secretary, however, has authority to require additional standards.

The moves, advocates say, are a first step in determining standards for inclusion of sexual orientation and gender identity questions in all HHS surveys, which include agencies like the Centers for Disease Control and nationwide surveys like the Youth Risk Behavior Survey. 

In a release announcing the move, Sebelius said, "Health disparities have persistent and costly affects for minority communities, and the whole country. Today we are taking critical steps toward ensuring the collection of useful national data on minority groups, including for the first time, LGBT populations. The data we will eventually collect in these efforts will serve as powerful tools and help us in our fight to end health disparities."

Explaining the significance of the move, Center for American Progress senior vice president for external affairs Winnie Stachelberg said, "It's foundational. One of the things that we always try to do here at a think tank is quantify the problem and understand the problem – and base your solutions on facts. 

"You can't do that unless you have the data about the gay and transgender community. And finally we'll be able to collect that data so that we can develop solutions that actually address the problems – not the notional problems, but the actual ones that are data driven."

Williams Institute scholar Dr. Gary Gates responded to the news in a statement, saying, "As was clearly stated in the findings from the recent Institutes of Medicine report on LGBT health disparities, the need for more data is acute. I urge HHS to move as quickly as possible to include sexual orientation and gender identity questions on the NHIS." ...

Secretary Sebelius makes "fantastic" commitment to data on sex/o and GI

From the Blade:

Secretary of Health & Human Services Kathleen Sebelius committed on Tuesday to start the collection LGBT data as part of federal health surveys, although she said the questions that would be used to gather the information must first be market-tested before they’re made as part of any questionnaire. 

During a news conference at the White House, Sebelius said in response to a question from the Washington Blade that the Department of Health & Human Services “fully intend[s] to collect LGBT data” through federal surveys. 

“So it is definitely a commitment,” Sebelius said. “We will be adding data questions to the national health surveys. And right now we are looking at developing a slew of questions, market-testing them, coming back and making sure we have the right way to solicit the information that we need.” 

Sebelius said including LGBT questions on federal health surveys has been difficult because the federal government hasn’t engaged in such data collection before and hasn’t settled on the right way to ask such questions. The secretary asserted the Department of Health & Human Services is market-testing questions to make sure they’re worded in the right way to collect the necessary information.... 

Gary Gates, distinguished scholar at the Williams Institute at the University of California in Los Angeles, called the commitment from Sebelius “fantastic,” but said questions on sexual orientation and gender identity “need not start from scratch.”

“We know a great deal already about how to measure sexual orientation and some recent studies have also highlighted promising approaches to measuring gender identity,” Gates said. “HHS now has a real opportunity to develop an open and transparent process as they assess how to best utilize this body of research to inform how they achieve LGBT inclusion in their data collection. That process must be transparent and involve experts from both inside and outside of the government as well as experts from the LGBT community.”

New Medicaid policy is more important than it may seem

The Obama administration issued guidance last Friday delineating how same-sex couples can be financially protected if one becomes Medicaid eligible in the process of securing long-term care for a serious disability (often age-related). As the letter explains, married heterosexual couples have a variety of legal mechanisms that allow the non-disabled spouse to retain some basic assets such as their home. Because of DoMA, same-sex marriages cannot be recognized. Thus no same-sex couples have had access to the same options for preventing spousal impoverishment. 

The new guidance letter on Medicaid rules for same-sex couples suggests a variety of ways that the same kinds of protections can apply to same-sex couples, whether married or not.  This may sound like a mush of bureaucratic legalese, but it is much more than that. Aside from the smart lawyering involved in producing this analysis (kudos to the HHS legal staff), this development has both short and long term importance.

In the here and now, more and more same-sex couples are entering the final third of life, along with every other baby booomer in the U.S.  Medicaid, originally set up as a health insurance system for the poor, including the "medically indigent," now pays more than half the total costs of long-term care in the U.S. Given the crushing expense of nursing homes even for middle-class Americans, Medicaid has been necessary for millions of elders to receive decent care.  For senior same-sex couples, the new Administration position is a huge and immediate change.

But there is another, potential long-term effect of the new guidance as well. It's less obvious but, with a little investment of energy, one that could help end routinely anti-gay policies in social services agencies.  Here's why -

Medicaid is a joint federal-state program, both in funding and administration. Its day-to-day operations are carried out by state agencies - you don't go to the local federal building to apply for Medicaid, you go to the state human services field office.  Among other things, state government agencies determine eligibility. This is why the Administration's policy was announced in the form of a guidance letter to state officials: it provided every state agency with the green light to make eligibility determinations that de facto treat same-sex couples as straight married couples are treated.

In some states, officials wanted to accord these benefits to gay couples, but may have been worried that to do so would expose them to charges that they were violating DoMA. In Massachusetts, for example, HHS may now assert that the new policy moots the state's claim that DoMA forces it to violate its own state law allowing same-sex couples to marry. There will be other states - probably all those that already allow either marriage or a civil union status - that will welcome the new HHS policy as well.

The most important political change could occur in states with the worst anti-gay policies. There the new policy creates a strong basis for demanding equal treatment for same-sex couples.  In other words, those officials cannot hide behind the DoMA argument any longer. 

As the HHS letter states, the federal agency cannot require state agencies to take these steps: the Medicaid statute itself does not provide authority for a mandate. But the letter does explicitly declare that states have the discretion to do so, and it encourages states to exercise that discretion.

With this guidance from the federal level, state advocates can much more powerfully demand the implementation of such policies. State officials may refuse, but their legal justification for a refusal has just gotten immensely weaker.

Split decision on Irish abortion law: Court finds human rights violation only if woman's life is endangered

The European Court of Human Rights issued its decision this morning in A, B, and C v. Ireland (background here), finding that the third plaintiff C's rights under the European Convention on Human Rights were violated because she was forced to travel to the UK to secure an abortion even though the pregnancy, combined with her ongoing cancer, endangered her life. However, the Court denied the plaintiffs B's and C's arguments that a risk to their health - as distinct from a risk to life - required allowance of an abortion.

Ireland prohibits abortion under an 1861 law that carries life imprisonment as the maximum penalty. A 1983 referendum amended the national constitution to recognize the unborn child as an Irish citizen with full rights. A 1992 Irish Supreme Court decision held that abortion is legal if there is a real and substantial risk to the woman's health from the pregnancy. The national Parliament, however, has never enacted laws to effectuate that decision, and the Grand Chamber Human Rights Court decision noted that for procedural reasons, Irish courts do not offer a venue in which women can seek orders granting a legal abortion. About 5,500 Irish women travel to England and Wales every year to obtain an abortion.

The rulings of the European Court of Human Rights are binding on nations. According to The Guardian, "It is understood that the judgment is being considered by the [Irish] Republic's department of health and the Irish attorney general."

In today's decision, the court said that it "considered that the establishment of a risk to [C's] life clearly concerned fundamental values and essential aspects of her right to respect for her private life," a right protected by Article 8 of the European Convention on Human Rights. The court found that it had been violated by the Irish government's failure to implement the decision of its supreme court.

Congratulations to lead counsel (and my former student) Julie Kay -

HHS issues final hospital visitation reg

After considering thousands of comments on a proposed regulation requiring all hospitals that receive Medicare funds (which essentially = all hospitals in the U.S.) to develop visitation policies that allow patients to designate anyone, including same-sex partners, as visitors, the Department of Health and Human Services has issued the final regulation. It will take effect in 60 days.

Here is reporting from The Advocate, based on a conference call between Secretary Sebelius and HHS Deputy General Counsel (and former ACLU LGBT Rights Project attorney) Ken Choe with advocates:

The rule change is the result of a directive that President Barack Obama gave to HHS in April after hearing stories of people who were denied access to their same-sex partners during the critical and, in some cases, final hours of their lives.

Hospitals will be required to have written policies and procedures detailing visitation rights and the specific circumstances under which a hospital can restrict access based on reasonable clinical needs. Hospitals must also inform incoming patients of their right to choose their visitors, regardless of whether the visitor is a family member, a spouse, a domestic partner (including a same-sex domestic partner), or other type of visitor, as well as their right to withdraw such consent to visitation at any time.

Ken Choe, deputy general counsel at HHS, said no documentation will be required to prove any particular kind of relationship. Patients need only give an oral designation of whom they wish to permit access to, a designation that can also be revoked at any point during their stay.

If a patient enters the hospital unconscious, Choe said complications with access would only arise if two people claimed to be the person who should be making visitation decisions on the patient’s behalf. In that case, hospitals would be allowed to ask for documentation in order to determine who should be allowed access to the patient.

Choe said complaints can be lodged against hospitals believed to be out of compliance in several ways. All hospitals must have a formalized internal grievance process, and people can also report hospitals to their state’s Survey and Certification Process, which governs Medicare and Medicaid participation. Medicare beneficiaries can also take their concerns to Quality Improvement Organizations (QIOs) in every state.

Massive gap in partner benefits produces lack of health insurance

A new study documents the harsh impact on lesbians and gay men of the absence of partner benefits in employer-sponsored health insurance (ESI). Through the mid-2000's in California, less than one-third (28%) of partnered lesbians received "dependent" coverage from ESI, a differential that resulted in the fact that among all partnered or married women, lesbians were twice as likely to lack health insurance as heterosexual women. Among partnered or married men, less than half (42%) of partnered gay men received "dependent" coverage from ESI. Although there was no gap based on sexual orientation in employed persons receiving their own health coverage, the magnitude of the shortfall in partner benefits produced a gay/straight differential in overall health insurance coverage.

The study - The Effects Of Unequal Access To Health Insurance For Same-Sex Couples In California by Ninez A. Ponce, Susan D. Cochran, Jennifer C. Pizer and Vickie M. Mays - has been published online by Health Affairs; the study will also appear in the journal’s August issue. Health Affairs is the leading health policy journal in the U.S. There is free access to the full article until July 8. Ponce, Cochran, and Mays are on the faculty at UCLA; Jenny Pizer is senior counsel and director of the marriage project at Lambda Legal in Los Angeles.

This study is the first to quantify the gap between dependent coverage received by heterosexual employees and that received by lesbian and gay employees, and to quantify the greater extent to which the dependent partners of lesbian and gay employees are uninsured.

The study sample was drawn from results of the California Health Interview Survey in 2001, 2003, and 2005. As a result, most of the data were collected before full implementation of the California Insurance Equality Act of 2005, which requires employers that offer spousal benefits to also extend benefits to registered domestic partners. (Employers that offer self-funded ERISA plans - 31% of CA employers - are exempt from the state law; but two-thirds of the exempt employers had voluntarily extended partner benefits as of 2009). The authors expect that the 2005 California law as well as the national Patient Protection and Affordable Care Act may serve to alleviate some of the disparities documented by this study. They also found, however, that the way government agencies and employers define “dependents” and the federal taxation of health benefits for a same-sex spouse or partner continue to be “a relevant underlying structural determinant of whether or to what extent sexual-orientation minorities will have more equal access to employer-sponsored insurance.” Achieving universal coverage, they conclude, depends, in part, on “remedying inequalities in state and federal marriage-related rules.”

In the study sample, 51% of lesbians and 38% of gay men reported being in a partnered or married relationship, compared to 64% of both female and male heterosexuals. Other studies have found that half of cohabiting lesbian couples in CA and about a quarter of cohabiting gay male couples have registered as partners under the state's law.

There are many more fascinating details available if one reads the full study. It brings home the point of how important it is to analyze data both now and after the insurance mandate and the availabiliy of exchanges become nation-wide realities in 2014. Will exchanges, for example, essentially eliminate this differential? Even if the differential disappears, will there still be a quality gap between the coverage that is available through an exchange and what is available to partners of an individual insured at his/her workplace? Cutting the other way, will the fact that securing a policy through an exchange will not require coming out, as is implicitly part of the process when an employee secures coverage for a partner, make that route more appealing to LGB persons?  Could both dynamics result, perhaps with geographic differentials?

Kudos to the authors for this terrific study!

What hath Stupak wrought

A new Guttmacher Institute report describes how the Stupak amendment will effectively deny insurance coverage for abortion to women who will be purchasing policies in the new exchanges:

Consumers purchasing exchange plans that include abortion coverage would have to make two separate premium payments—one to cover abortion services and one to cover everything else. Insurance companies would have to jump through numerous, unprecedented hoops to estimate the cost of abortion coverage and ensure that the abortion payments never mix with other funds; they also are likely to face extensive public scrutiny and protest around their action.

The inevitable result: insurers plan not to include abortion rather than undergo the hassle of administering separate premiums.  And the obvious next step is that those abortion-excluding plans will become the norm for policies sold outside the exchanges as well.

Not scary enough for you? The WSJ reports that choice opponents are trying to enact bans on insurance coverage in all plans now, before the exchanges come online in 2014:

Lawmakers in least six states are pushing for legislation to block abortion coverage in some health plans... [They] are turning to another provision in the legislation that says states can choose to prevent plans offered through their exchanges from covering abortion altogether. That would likely affect most individual and small-group plans in a state, starting when the exchanges launch in 2014...The new state-level proposals are likely to rekindle abortion as a political issue in November elections... Since the beginning of this year, lawmakers in five states including Tennessee and Oklahoma have introduced bills that would generally block abortion coverage in exchange plans...

In other words, unless a future Congress considers this to be one of those necessary "fixes" to the health reform bill, a massive cutback in reproductive rights is on the way -

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.