Policy Updates

On the Hill Updates: April 25, 2019

Reproductive Health, Rights, and Justice

Victory for insurance coverage of abortion

On February 19, NCJW submitted a comment on a Centers for Medicare and Medicaid Services (CMS) proposal that would have required qualified health plans offering abortion coverage through the Affordable Care Act’s marketplace to also offer mirror plans that did not cover abortion. This proposed regulation was blatantly designed to incentivize insurers to withhold abortion coverage in order to avoid millions of dollars in costs and administrative hurdles. NCJW members also took action by submitting their own comments. Due to the sheer number of comments that CMS received (over 25,000!), the mirror plan provision was not finalized. NCJW celebrates this victory safeguarding private insurance coverage of abortion and thanks all who submitted comments and spoke out against this onerous policy.

Federal Courts

Senate to consider additional judicial nominees

The Senate will return from recess next Monday, April 29 and will be moving on to a slate of judges including Andrew Brasher and J. Campbell Barker, two movement lawyers who have spent their careers pushing an extreme and dangerous ideological agenda, especially with regard to voting rights. Barker and Brasher are nominated to of lifetime seats on the US District Courts for the Eastern District of Texas and the Middle District of Alabama, respectively. Barker is a Texas state government lawyer who has fought against protections for immigrant children and their parents, environmental protection, reproductive rights, LGBTQ equality, fairness in the criminal justice system, and voting rights, including defending Texas’ photo ID law. Brasher is the Alabama Solicitor General, and has attempted to restrict voting rights, LGBTQ equality, reproductive freedom, environmental protection, and other critical civil and human rights. NCJW opposes Barker’s nomination.

Legal victory for Title X; related lawsuits underway

On April 23, Judge Michael McShane of the US District Court for the Eastern District of Oregon granted a preliminary injunction temporarily blocking the Title X gag rule from taking effect while the case continues to be litigated. Planned Parenthood Federation of America, Planned Parenthood of Southwestern Oregon, and Planned Parenthood Columbia Willamette joined the American Medical Association and the Oregon Medical Association in filing this lawsuit. The Oregon and New York Attorneys general, joined by 21 other attorneys general, filed a case in the same court. While the precise scope of the judge’s order will be revealed in his written order, it is certain that this ruling applies to all Planned Parenthood affiliates.

Meanwhile, at least four similar suits against what Judge McShane labelled a “ham-fisted approach to public health policy” are also underway. Oral arguments began on April 18 in the US District Court for the Northern District of California, where California Attorney General Xavier Becerra and Essential Access Health (administrator of state’s Title X funding) contended that the gag rule is unconstitutional, violates current law, and inflicts irreparable harm on patients across the nation. Still more suits began on April 24 — filed by the Maine Family Planning Association in the US District Court for the District of Maine — and April 25, filed by Washington State and the National Family Planning and Reproductive Health Association in the US District Court for the Eastern District of Washington. Absent a nationwide injunction from one of these courts, the gag rule will go into effect on May 3.

SCOTUS hears census case

This week the US Supreme Court heard oral arguments in Department of Commerce v. New York, which will decide whether a citizenship question can be added to the 2020 Census. The case bypassed the 2nd Circuit Court of Appeals in order to be decided before the print deadline for the census. Three district courts have ruled against including the question. NCJW opposes adding a citizenship question to the census, which studies show will result in an undercounting of Latinx and immigrant communities. NCJW signed on to an amicus brief in the case and included it on our list of cases to watch this term.

SCOTUS taking up Title VII cases

On April 22, the US Supreme Court announced it would decide whether the 1964 Civil Rights Act’s Title VII prohibition against sex-based employment discrimination includes discrimination based on sexual orientation or gender identity. The circuit courts of appeals have split decisions regarding these protections, and the Trump administration has taken the position that the law does not include protections for LGBTQ workers (a reversal from the Obama administration). The three cases granted cert are Altitude Express v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes v. EEOC. The cases will be heard and decided during next year’s term. Currently, only 22 states and the District of Columbia explicitly protect against LGBTQ employment discrimination.

SCOTUS asked to decide Louisiana TRAP law case

On April 17, the Center for Reproductive Rights (CRR) filed a petition for certiorari asking the Supreme Court to strike down a Louisiana law requiring any physician providing abortion services to secure admitting privileges at a hospital within 30 miles of the procedure. The Court previously issued an emergency stay delaying implementation of the law, preventing the shuttering of two of the state’s three remaining abortion clinics. Notably, CRR requested that the Court overturn Act 620 without a hearing, maintaining that there is no need for a new argument because the justices declared an identical Texas law unconstitutional in 2016’s Whole Woman’s Health v. Hellerstedt. Should the Court opt to hear June Medical Services v. Gee next term, it will directly test its own precedent in deciding whether a law that would leave only one provider qualified to care for the nearly 10,000 Louisiana women seeking abortions each year constitutes an “undue burden.”

Foster care victory in Philly

On April 22, the 3rd Circuit Court of Appeals ruled that Philadelphia city contractors have to abide by nondiscrimination policies in the placement of foster care children with LGBTQ couples. Last year, Philadelphia ended a contract with Catholic Social Services over their policy not to place children with same-sex couples. The agency sued, but so far both the lower court and now the appeals court sided with the city, which has a robust nondiscrimination law.

Sign On Letters

  • On April 18, NCJW and 45 other members of the National Coalition for Public Education sent a letter to congressional leadership urging them to oppose the reauthorization or continued funding of the District of Columbia private school voucher program in the FY 2020 Financial Services and General Government Appropriations bill.
  • On April 22, 127 organizations including NCJW sent a letter to all US political parties urging them to adopt platforms that repeal the Muslim Ban and reverse the historically low cap on refugees.

Amicus Briefs

  • NCJW signed on as an amicus curiae (friend of the court) to a brief in California v. U.S. Department of Health and Human Services, a case before the Ninth Circuit Court of Appeals concerning the Trump administration’s final rules establishing religious and moral exemptions that effectively nullify the ACA’s contraceptive coverage requirement and its protections for countless women.

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