Reproductive Health, Rights, and Justice
Discriminatory Hyde Amendment remains in appropriations bills
This week, appropriators in the House of Representatives released draft funding bills for the fiscal year 2021. Unfortunately, despite tireless efforts to convince Democratic lawmakers writing these bills to eliminate the Hyde Amendment, this discriminatory policy remains in FY21 legislation. The Hyde Amendment is language in annual Labor, Health and Human Services, Education, and Related Agencies (Labor-H) appropriations legislation that bars programs administered by these agencies — including Medicaid, Medicare, and the Children’s Health Insurance Program (CHIP) — from covering abortion care. Over time, Hyde-like riders have also been added to additional appropriations bills including:
- Commerce, Justice, Science, and Related Agencies (CJS), banning the use of Department of Justice funds for abortion care for those in federal prisons;
- State, Foreign Operations, and Related Programs (SFOPS), banning the use of Peace Corps funds for abortion care for volunteers and trainees;
- Defense, banning coverage of abortion care for TRICARE enrollees; and
- Financial Services and General Government (FSGG), banning coverage of abortion care for federal employees and their dependents.
Fortunately, the ban on the District of Columbia using its own funds to provide abortion coverage to low-income residents that have traditionally been included in the FSGG bill was removed from the FY21 legislation. NCJW joined 43 other reproductive health, rights, and justice organizations in the All* Above All coalition to condemn inclusion of Hyde in the Labor-H bill, reiterating that abortion coverage bans have long disproportionately impacted Black, Indigenous, and People of Color (BIPOC) communities. We will continue to champion the EACH Woman Act (HR 1692/S 758), which would permanently end Hyde and prohibit interference in insurance coverage of abortion at all levels of government.
SCOTUS deals yet another blow to contraceptive access
On July 8, the United States Supreme Court issued its decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, also known as Trump v. Pennsylvania, a case challenging the Trump administration’s rules allowing virtually any employer or university to deny birth control coverage by asserting a religious or “moral” objection. A majority of the Court, led by Justice Thomas, held that the Affordable Care Act (ACA) authorized the administration to issue these rules and that the rulemaking process was free from procedural defects under the Administrative Procedure Act (APA). This decision will allow the rules to take effect once the Court issues a mandate instructing the Third Circuit Court of Appeals to dissolve the nationwide injunction blocking their implementation. Justices Ginsburg and Sotomayor dissented, noting that “between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services,” and that, “for the first time, the Court cast totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
Notably, in a separate concurring opinion, Justices Kagan and Breyer outlined the potential for this case to survive. Because the lower courts found that the ACA did not authorize the administration to issue these rules, they did not address Pennsylvania’s claim that the rules would also fail under the APA’s arbitrary and capricious standard; this essentially means that courts can invalidate regulations if they find that a government agency cannot demonstrate that it engaged in reasoned decisionmaking by providing an adequate explanation for its decision to issue a particular rule. Pennsylvania Attorney General Josh Shapiro has already vowed to further pursue this argument in court.
Moreover, in another separate concurring opinion, Justices Alito and Gorsuch wrote that the Religious Freedom Restoration Act (RFRA) required the government to issue these rules. However, because this reasoning was not part of the majority opinion, it does not amount to settled precedent and will not impact future cases interpreting RFRA and the ACA’s contraceptive mandate. NCJW fought for this essential benefit, which has allowed an estimated 62 million people to access no-cost contraception. We know that our reproductive freedoms are integrally bound to our religious liberty and are committed to advancing the goals of reproductive justice so every person can make moral and faith-informed decisions about their body, health, and family free from restrictions and stigma.
SCOTUS authorizes discrimination against lay teachers at religious schools
On July 8, the United States Supreme Court issued its decision in the consolidated cases of Our Lady of Guadelupe School v. Morrissey-Berru and St. James School v. Biel which challenged the application of the “ministerial exception” to federal employment discrimination laws to school teachers with limited religious duties. A majority of the Court, led by Justice Alito, held that allowing lay teachers at religious schools to make claims under federal employment discrimination laws would amount to “state interference” in religious education in violation of the First Amendment’s Free Exercise Clause. This decision carves out a major exception to US fair employment laws and invites religious schools to discriminate against teachers. Justices Thomas and Gorsuch filed a separate concurring opinion while Justices Ginsburg and Sotomayor dissented, writing that the majority’s “simplistic approach has no basis in law and strips thousands of schoolteachers of their legal protections.” NCJW strongly opposes all laws and policies that permit discrimination under the guise of religious freedom.
SCOTUS lets pay equity victory stand
On July 2, the United States Supreme Court declined to take up a pay equity case on appeal from the Ninth Circuit Court of Appeals. The circuit court ruling, which is now the last word on the subject, held that the Equal Pay Act does not allow past salary history to be used as justification for pay disparity. NCJW applauds this victory and joined an amicus brief in support of pay equity when the case was before the Ninth Circuit.
- Take Action! Join NCJW for a special webinar on July 20 at 4:30 pm ET, After the Dust has Settled: The Supreme Court Term in Review – with Dahlia Lithwick, who writes about the courts and the law for Slate and hosts the podcast Amicus. Register here!
Administration attacks transgender people, again
On July 1, the Department of Housing and Urban Development announced a proposal to allow federally-funded housing services, including homeless shelters, to deny transgender people access to single-sex shelters of their gender identity. Specifically, the rule would roll back expanded protections added during the Obama administration. Transgender and gender non-binary people are at acute risk of homelessness; according to the 2015 US Transgender Survey, nearly one-third of this population experience homelessness at some point in their lives, a percentage that is greater for those who identify as Black, undocumented, Middle Eastern, or multiracial. This rule is the administration’s latest attack on transgender people, on the heels of rolling back nondiscrimination provisions in health care. NCJW condemns this cruel proposal.
Narrow coronavirus bill expected in Senate
Following the July recess, the Senate is expected to unveil a narrow coronavirus bill addressing a few small areas where Republican lawmakers can find agreement. The measure could include an extension of unemployment insurance, which expires July 31; funding and flexibility for state and local governments (many started their new budgets on July 1 and, just between Feb-June, 1.5 million state and local workers were laid off, with more layoffs on the horizon); and liability reform to protect businesses from coronavirus-related lawsuits.The White House wants Congress to pass another stimulus package by the first week of August, before lawmakers head home for their annual summer recess, and to keep the cost at $1 trillion or less. NCJW supports the House-passed HEROES Act (HR 6800), a more robust and comprehensive measure that directs funding to state and local governments, health systems, and a wide range of progressive initiatives to ensure health care needs are met and to lay the groundwork for an economic recovery.
Appropriations underway in House
As noted above, House appropriators this week released draft bills funding the federal government in fiscal year 2021. Each of the 12 appropriations subcommittees will mark up the funding bills described below before reporting them to the full Appropriations Committee and eventually to the House floor for consideration by the full chamber.
Commerce, Justice, Science, and Related Agencies: The bill would increase funding for the Department of Justice (DOJ), provide grants for police oversight, and make some state and local money contingent on changes in policing practices. It would provide $33.2 billion for the DOJ, $972.5 million more than in fiscal 2020.
Defense: The Pentagon would have $694.6 billion in the fiscal year 2021, including $1 million for the Army to rename bases, buildings, and roads bearing the names of Confederate leaders and officers.
Department of Homeland Security: Despite its imperfections, the bill takes important steps to reduce funding for immigration enforcement and detention as well as to increase transparency and accountability. Specific provisions include funding 22,000 detention beds (about half of what is currently funded), limits to detention length, eliminating the department’s ability to transfer funds between its accounts (which it has done to fund increased detention and the border wall), and a requirement to phase out family detention by 2020.
State, Foreign Operations, and Related Programs: The bill contains several important wins, including:
- The Global HER Act (HR 1055/S 368), which would permanently repeal the global gag rule. It also blocks current or previous funding from being used to implement this harmful policy forbidding any international family planning provider receiving US funding from providing abortion care, referring patients to abortion providers, or even discussing the option of safe abortion;
- A significant increase in funding for international family planning programs, which is a sound rejection of the Trump administration’s proposed extreme funding cuts; and
- Restored and increased funding for the United Nations Population Fund (UNFPA), which provides reproductive and maternal health services in more than 150 countries, including in conflict and humanitarian settings.
Labor, Health and Human Services, Education, and Related Agencies: The bill did not increase funding for Title X, the nation’s family planning program, to the necessary $400 million. However, it does block enforcement of the Trump administration’s illegal domestic gag rule prohibiting clinics funded by the program from referring patients for abortion care and mandating “clear physical and financial separation” between services funded by the government and any organization that provides or refers patients for abortions.
- Take Action! Speak out against the gag rule and protect our reproductive health care.
Immigration and Refugees
Administration moves again against asylum seekers; also targeting college students
On July 9, the Departments of Homeland Security and Justice released a new proposed anti-asylum rule that would allow the administration to consider communicable disease and emergency public health concerns when considering asylum cases. The irony about using the current COVID-19 pandemic as a reason to block asylum seekers is that the United States has the most cases in North America by far and has exported the virus through deportations. The public has only 30 days to comment on this broad proposed rule. NCJW and the Interfaith Immigration Coalition oppose this latest attack on asylum.
Earlier in the week, Immigration and Customs Enforcement (ICE) announced that international college students could not come to the US, or must leave if they are already in the country if their schools are entirely online. This move is seen as an effort by the administration to pressure colleges and universities to re-open in-person in the fall. In 2019, the total number of international students in the US was just over one million. In response, Harvard, the Massachusetts Institute of Technology (MIT), and Georgetown University filed suit. This policy shift is xenophobic and absurd.
- On June 25, NCJW joined a diverse coalition of more than 50 civil rights, faith, education, and labor groups on a letter opposing the nomination of Anthony Tata for Under Secretary of Defense for Policy due to his long record of bigotry.
- On July 2, 33 organizations including NCJW sent a letter to Congress to bring attention to the mass increase of Cameroonians in Immigration and Customs Enforcement (ICE) custody.
- On July 2, NCJW joined 110 organizations on a letter to the Senate urging them to support the election provisions in the House-passed HEROES Act.