On the Hill Updates: May 31, 2019
Reproductive Health, Rights, and Justice
HHS releases rule eliminating anti-discrimination protections
On May 24, the Trump administration released a Notice of Proposed Rulemaking decimating Section 1557 of the Affordable Care Act, the “Health Care Rights Law.” This critical provision prohibits discrimination in health care based on race, color, national origin, age, disability, and sex; importantly, the law’s protections extend to pregnancy, termination of a pregnancy, sex stereotyping, and gender identity, shielding women and LGBTQ patients who are more likely to experience discrimination and be refused necessary health care. Instead, Trump’s proposal will permit health insurers, hospitals, clinics, and any other covered entities to deny patients care because they have had an abortion or because they are transgender. The comment period for this proposed rule will extend 60 days after its publication in the Federal Register. NCJW vehemently opposes this plainly unconscionable regulation and the administration’s continued attacks on women’s health, youth health, immigrant health, LGBTQ health, the health of communities of color, and the health of those struggling to make ends meet.
Scott Lloyd out at HHS
On May 29, the Department of Health and Human Services (HHS) announced that Scott Lloyd, former Director of the Office of Refugee Resettlement (ORR), will leave the Trump administration next week. Throughout his tenure at the helm of ORR, Lloyd shamed, bullied, and coerced young people by blocking access to abortion, effectively abandoning his mandate to provide prompt access to safe medical services to all within the agency’s charge. Lloyd prohibited undocumented minors in federal custody from obtaining abortions; instructed subordinates to prevent these minors from meeting with attorneys and from going to court to request abortion access; engaged in a lengthy (and ultimately unsuccessful) court battle to stop a teenager from leaving her shelter for an abortion; and publicly discussed requiring young immigrants to undergo a medically-unproven “abortion reversal” process. What’s more, Lloyd admitted to Congress that he had failed to alert HHS leaders about the health risks of separating migrant children from their families and even maintained spreadsheets tracking the pregnancies and menstrual cycles of young women in ORR’s custody. NCJW worked tirelessly to secure Lloyd’s removal, collecting thousands of signatures calling for his resignation, and believes that all HHS officials should recognize that abortion is health care and that health care is a human right.
Missouri narrowly avoids becoming first state with no abortion clinic post Roe
On May 31, just hours before Reproductive Health Services of Planned Parenthood of St. Louis’s license was set to expire, Circuit Court Judge Michael Stelzer granted a temporary restraining order and ruled that the facility can continue to provide abortions until the matter can be heard in court again on June 4. The Department of Health and Senior Services is refusing to renew the clinic’s license to provide the procedure, citing Planned Parenthood’s failure to fully comply with the state’s requests. While Planned Parenthood has agreed to adjust who at the clinic provides the state-mandated counseling and to add an additional pelvic exam for abortion patients, the third request — to interview five physicians at the clinic who are not Planned Parenthood employees — is beyond the organization’s control. Absent the court’s intervention, the combined result of medically unnecessary TRAP laws and this weaponization of the licensure process would have left 1.1 million Missouri women of reproductive age without access to abortion in their state, making it the first to no longer offer the procedure since before Roe v. Wade. NCJW is in solidarity with Missourians and continues to fight the wave of draconian restrictions sweeping our nation.
Supreme Court delivers mixed order in Indiana abortion case
On May 28, the US Supreme Court declined to consider an appeal of the Seventh Circuit’s ruling in Box v. Planned Parenthood of Indiana and Kentucky striking down an Indiana law banning abortions on the basis of sex, race, or disability. Such onerous legislation is often fueled by racist stereotypes and is patently unconstitutional, violating patients’ First Amendment rights and creating an undue burden on the right to obtain an abortion. In a separate opinion, Justice Thomas perpetuated these dangerous stereotypes by pointing to data on “widespread sex-selective abortions” in Asia and asserting that “recent evidence suggests that sex-selective abortions of girls are common among certain populations in the United States as well,” referring to Chinese American and Indian American families.
In the very same breath, the Court also reversed the lower court’s decision invalidating another provision of the Indiana law mandating that fetal remains be cremated or interred. In granting a summary reversal, the Court disregarded briefing and oral argument of the case on the merits and decided that the legislation is rationally related to legitimate government interests. Notably, the Court did not apply the standard established in 1992’s landmark abortion rights case Planned Parenthood v. Casey, a more rigorous test declaring laws imposing an “undue burden” to accessing abortion unconstitutional. In a separate opinion, Justice Ginsburg wrote that “‘[i]t is “a waste of th[e] [C]ourt’s resources’ to take up a case simply to say we are bound by a party’s ‘strategic litigation choice’ to invoke rational-basis review alone, but ‘everything might be different’ under the close review instructed by the Court’s precedent.” The National Council of Jewish Women supports advancing reproductive health, rights, and justice, and will continue to fight state and federal laws limiting access to abortion.
Refusals rule faces additional legal battles
On May 28, Lambda Legal, Americans United for Separation of Church and State, and the Center for Reproductive Rights filed a lawsuit in the US District Court for the Northern District of California challenging the Trump administration’s unconscionable refusals of care rule. (The regulation would allow any individual or entity involved in a patient’s care — their doctor, the hospital board, or even the person scheduling the appointment — to use their personal beliefs to dictate that patient’s access to health services.) The groups join two dozen states and municipalities seeking to block the regulation, arguing that it is unconstitutional and violates the Administrative Procedure Act’s arbitrary and capricious standard. In the absence of an injunction, the rule will take effect in July. NCJW forcefully opposes this regulation as an affront to the Jewish traditions of pursuing justice for all, ensuring fair treatment for all, and safeguarding individual religious liberty.
Advocates sue HHS and South Carolina over taxpayer-funded discrimination
On May 30, Lambda Legal, ACLU, ACLU of South Carolina, and South Carolina Equality Coalition sued the Department of Health and Human Services (HHS) and the state of South Carolina. The suit was filed on behalf of a married lesbian couple who were turned away by a government-funded foster care agency, Miracle Hill Ministries, which excludes prospective parents who are same-sex couples or who are not evangelical Protestants. In February, Americans United for Separation of Church and State also filed suit against HHS and South Carolina over the Department’s decision to allow all foster care agencies in the state to discriminate on the basis of religion and sexual orientation without losing federal funding. NCJW opposes taxpayer-funded religious discrimination and joined 120 organizations on a letter denouncing the exemption of federally funded foster care agencies in South Carolina from nondiscrimination protections.
Victory for transgender students
This week, the US Supreme Court denied certiorari and allowed the Third Circuit’s decision in Doe v. Boyertown School District to stand, meaning that transgender students in the district can continue to use facilities that match their gender identity. The Supreme Court’s decision not to hear the case is a bright spot amidst the Trump administration’s attacks on transgender students, including the decision to rescind regulations protecting transgender kids at the start of the administration in 2017. NCJW applauds this victory, and joined an amicus brief in support of the school district’s policy.
New maps in Ohio and Michigan halted, for now
In May, federal judges in Ohio and Michigan ruled their congressional maps unconstitutional gerrymanders, and ordered they be redrawn for the 2020 elections. However, on May 28 the US Supreme Court halted the orders to redraw the maps in light of its upcoming rulings in two partisan gerrymandering cases that NCJW is following closely, Lamone v. Benisek (Maryland) and Rucho v. Common Cause (North Carolina).
Some border wall construction halted
On May 24, a judge in the US District Court of Northern California issued a preliminary injunction halting $1 billion transfer from the Pentagon to fund construction of the border wall. The injunction only covers specific border areas in Texas and Arizona, and does not prevent the administration from tapping other funds. President Trump announced on May 29 his intent to appeal the ruling. NCJW opposes any further construction of the border wall or militarization of border communities.
Spring regulatory agenda released
Twice a year, the federal government publishes the “Unified Agenda,” which lists all ongoing and planned regulations. While the expected dates of new proposed regulations often change, the agenda provides a roadmap for the administration’s work. There are hundreds of current and proposed rules that impact the issues NCJW cares about, including but not limited to the following, listed by agency:
- Department of Education
- Proposed rule to reduce or eliminate unnecessary burdens and restrictions on religious entities and activities to participate in higher education and student aid programs (expected December 2019).
- Finalizing changes to how colleges handle cases of sexual assault and harassment under Title IX.
- Department of Health and Human Services
- Proposed rule requiring qualified health plans offering abortion coverage through the insurance marketplace to offer mirror plans excluding such coverage. Due to the sheer number of comments opposing this proposal, HHS did not finalize.
- Proposed rule eliminating nondiscrimination protections for transgender patients and those who have had an abortion found in Section 1557 of the Affordable Care Act (released this week).
- Proposal to remove “outdated” provisions and requirements of the Refugee Resettlement Program (expected August 2019).
- Proposal to ensure “equal treatment for faith-based organizations” (expected June 2019).
- Finalizing a rule requiring insurers who offer abortion coverage beyond rape, incest, or life endangerment to send two separate bills: one for abortion coverage and one for coverage of all other health services.
- Finalizing a rule implementing Violence Against Women Reauthorization Act of 2013 requirement to adopt national standards for the detection, prevention, reduction, and punishment of rape and sexual assault in facilities that maintain custody of unaccompanied alien children.
- Finalizing a rule that amends regulations relating to the apprehension, processing, care, custody, and release of unaccompanied minors in department custody.
- Department of Homeland Security
- Various proposals to collect biometric data at ports of entry, collect biometric data from both citizens and immigrants / visitors, and expand biometric data collection.
- Proposal to rescind an Obama-era rule that allowed spouses of people with certain immigrant visas to work (expected imminently).
- Vaguely worded proposal to deter “the fraudulent filing of asylum applications” in order to get work authorizations (expected December 2019).
- Proposal to make it more difficult for asylum seekers to claim credible fear (expected April 2020).
- Finalizing the public charge rule, which will make it more difficult for immigrants to obtain green cards if they access certain government benefits, including most Medicaid programs, housing assistance, and food assistance.
- Finalizing a rule that would make it easier for the federal government to hold immigrant children in detention, and for longer periods of time.
- Department of Housing and Urban Development
- Department of Justice
- Proposed rule to make it harder for legal permanent residents to get citizenship if they access certain government benefits, including most Medicaid programs, housing assistance, and food assistance (expected imminently).
- Proposal to make it easier for the Attorney General to refer immigration court cases to himself (expected July 2019).
- Proposed rule amending the regulations governing unaccompanied children in asylum and immigration proceedings as covered by the Trafficking Victims Protection Authorization Act (expected August 2019).
- Broadly written proposal to change asylum eligibility (expected November 2019)
- Department of Labor
- Proposed rule to reissue regulations regarding how tipped workers pool wages, coming on the heels of a 2018 legislative fix to a prior regulation harming tipped workers (expected December 2019).
- Request for information on updating the regulations enforcing the Family and Medical Leave Act (FMLA) (expected April 2020).
Nutrition Assistance Beyond SNAP
The Improving Access to Nutrition Act (HR 2809), introduced by Rep. Barbara Lee (D-CA) on May 16, would keep food on the tables of people struggling to find quality employment. Since 1996, adults ages 18 to 49 without children or a documented disability can only receive Supplemental Nutrition Assistance Program (SNAP) benefits for three months over a 36-month period unless they are working or involved in work-related activity or training at least part time. SNAP is our nation’s largest nutrition assistance program, serving more than 40 million people. NCJW supports HR 2809 which would lift SNAP’s arbitrary three-month time limit and ensure access to nutrition assistance while seeking full-time work.
Cissna out at DHS
The administration announced this week that L. Francis Cissna, Director of US Immigration and Citizenship Services (USCIS), would be leaving the Department of Homeland Security (DHS). Media outlets report that former Virginia Attorney General Ken Cuccinelli will be nominated to take his place. Cuccinelli is considered more anti-immigrant than Cissna, and is also virulently anti-LGBTQ. White House Senior Advisor Stephen Miller reportedly supports Cuccinelli’s appointment in place of Cissna. NCJW opposes Cuccinelli’s nomination.
American Dream and Promise Act up for vote
Next week, the full House will vote on the American Dream and Promise Act (HR 6), which would provide a path to citizenship for Dreamers (young immigrants brought to the US as children), Temporary Protected Status (TPS) holders, and Deferred Enforced Departure (DED) recipients. The bill’s component parts passed the House Judiciary Committee last week. NCJW urges Congress to pass this landmark path to citizenship.