Best news all day: ”The Obama administration has decided to stop trying to block over-the-counter availability of the best-known morning-after contraceptive pill for all women and girls.”
The administration is withdrawing its appeal of a ruling that requires emergency contraception pills to be made available without prescription, regardless of age. This is good news for access to the one-pill form of emergency contraception.
In not-so-good news, the administration may still interfere with over-the-counter access to the two-dose form of the drug.
Although the previous ruling required that the two-pill form be made available even before the intended appeal was heard, the Justice Department’s letter indicates that it may still try to require additional data specific to safety of the often more affordable, generic two-dose form in younger adolescents before approving the change.
As SCOTUSblog explains, “the FDA is interpreting Judge Korman’s April order as giving it permission to choose between Plan B One-Step and the two-pill version so that just one of them would be open without restrictions to women of all ages.”
The Center for Reproductive rights, which has been heavily involved in the court cases around this issue, responded:
Now that the appeals court has forced the federal government’s hand, the FDA is finally taking a significant step forward by making Plan B One-Step available over the counter for women of all ages. But the Obama Administration continues to unjustifiably deny the same wide availability for generic, more affordable brands of emergency contraception.
Congratulations and thanks to everyone who has worked for more than a decade to call attention to this important issue. While more work is still needed to make emergency contraception fully accessible to women and girls when they most need it, this recent news puts us much closer to that goal.
A couple of months ago a judge ordered that emergency contraception pills (like Plan B) be made available over the counter (OTC) without age restrictions. The U.S. Justice Department appealed that ruling, and asked for a stay so that OTC access wouldn’t take effect during the appeals process.
Around the same time, the FDA approved Plan B One-Step emergency contraception pills for purchase without a prescription for teens ages 15 and older.
On Wednesday, the Second Circuit Court of Appeals denied the stay for two-pill types of emergency contraception. This means that two-pill regimens should become available without prescription to women and girls of all ages even before the government’s appeal is resolved. The Court allowed the stay for one-pill variants of emergency contraception (e.g. Plan B One Step), and stated that the appeal process would be expedited.
Women’s health advocates have been fighting for more than a decade to make OTC emergency contraception a reality.
Nancy Northup of the Center for Reproductive Rights called Wednesday’s order “a historic day for women’s health,” adding: “Expanding access to this safe and effective way of preventing pregnancy after failed birth control or unprotected sex is the among the very best decisions our federal government can make for women’s health.”
Marcia Greenberger of the National Women’s Law Center remarked, “The Center applauds today’s decision, which underscores the simple fact that there is no reasonable basis for restricting access to this safe and effective birth control.”
The American Academy of Pediatrics, American College of Obstetricians and Gynecologists, and Society for Adolescent Health and Medicine have collectively denounced the administration’s decision to appeal the ruling at all, and issued a strong statement rejecting limited access: “There is no scientific justification for a continued age restriction on emergency contraception. The Administration’s decision puts the health of adolescent girls at risk and is inconsistent with what we know about the safety and benefits of emergency contraception.”
It’s unclear what will happen next in the fight for more accessible emergency contraception. The Justice Department has stated only that they are reviewing the order. According to SCOTUSblog, the administration has the option of asking the Supreme Court to delay all parts of that initial order for OTC access without age restriction. NPR’s Shots explains that “some lawyers say the government might be able to appeal to the full 2nd Circuit. But more likely, if they insist on fighting, government attorneys would have to seek relief from the Supreme Court justice who oversees the 2nd Circuit — Ruth Bader Ginsburg.”
On Monday, the Supreme Court heard oral arguments in the lawsuit against Myriad Genetics, challenging the company’s right to hold patents on two genes linked to increased risk of breast and ovarian cancer: BRCA1 an BRCA2.
The primary concern — which Our Bodies Ourselves, a co-plaintiff in the case, shares – is that human genes shouldn’t be patentable because they occur in nature. Allowing the patents restricts access to testing and research on these genes, and negatively affects women’s health.
Nina Totenberg, in her coverage for NPR, highlights the significance of the Court’s decision, expected later this year: “There is no way to overstate the importance of this case to the future of science and medicine.”
The oral arguments boiled down to two key opposing points. The attorney for the Association for Molecular Pathology and other plaintiffs in the case argued that the genes cannot be patented because they are found in nature. The attorney for Myriad Genetics essentially argued that because the company found and isolated the gene, it should be able to patent it. There was a great deal of discussion about this point, with analogies such as whether finding and removing a plant from the Amazon should entitle someone to patent that plant as an “invention.”
Major medical organizations have argued that the patents force people in the United States to “undergo tests that are inferior to and more costly than those available in other countries,” with the consequence that “no woman in America can get an independent second opinion about her condition before deciding to have her healthy breasts or ovaries removed in order to avoid cancer.”
The patents on BRCA1 and BRCA2 are harmful to patients and create barriers to medical and scientific advancement. Myriad has a monopoly on BRCA genetic testing in the U.S. and therefore controls the type and price of testing. Thus, while genetic testing technologies have advanced to the point where all 23,000 human genes can be sequenced for $1000, Myriad has raised its price for BRCA genetic testing to over $4000 in the last few years and still does not capture all known BRCA mutations. Other laboratories cannot provide second opinions, and they cannot include the BRCA genes when offering testing of the multiple genes that are now associated with breast and ovarian cancer risk. Gene patents also have a chilling effect on research. Researchers must either obtain permission from the patentholder, or run the risk of being sued. And by virtue of its patents, Myriad controls most of the data about the BRCA genes and has refused to share that information with the scientific community.
It was a thrill to meet so many wonderful people working hard for women’s health, and it was incredibly moving to hear from the powerful women who stood up to tell their personal stories. We know that Myriad’s patents on our genes are wrong, and we hope that the Supreme Court will take this opportunity to come down on the right side of women’s health.
Last week, a judge ordered the FDA to make emergency contraception pills available over the counter, with no age restrictions, capping a long and frustrating legal battle to increase access.
Versions of levonorgestrel-based emergency contraceptive pills (such as Plan B and Next Choice) are expected to be made available without restriction within 30 days, but it’s not clear whether there will be some administrative interference. The FDA might decide on new labeling or to limit the forms of emergency contraception made available. There is also the possibility that the decision will be appealed.
OTC access for all ages is essential because most emergency contraception pills are most effective when used as soon as possible, and time, distance, money, and privacy can be serious barriers, especially for teenagers, to obtaining and filling a prescription in time to prevent pregnancy.
The push to make emergency contraception pills (also known as morning-after pills) available to all ages without a prescription suffered a major setback in 2011, when HHS Sec. Kathleen Sebelius blocked the FDA’s decision to remove the age barrier. Since 2009, emergency contraception has been available without a prescription for anyone age 17 and older.
Sebelius’s objections focused on the idea that young girls would use EC in unsafe ways. Susan Wood, A former director of the FDA’s Office of Women’s Health who in 2005 resigned over political delays around emergency contraception, rejected Sebelius’s claim that more data was needed on safety and label comprehension, noting that “this type of age restriction, and worries about the use of medicines by teenagers, have not been applied to other products.”
U.S. District Judge Edward R. Korman, in reversing the FDA’s decision to deny a citizen petition for all-ages access, seems to agree that the “What about 11-year-olds?” objection is merely a smokescreen. From the memorandum:
This case is not about the potential misuse of Plan B by 11-year-olds. These emergency contraceptives would be among the safest drugs sold over-the-counter, the number of 11-year-olds using these drugs is likely to be miniscule, the FDA permits drugs that it has found to be unsafe for the pediatric population to be sold over-the-counter subject only to labeling restrictions, and its point-of-sale restriction on this safe drug is likewise inconsistent with its policy and the Food, Drug, and Cosmetic Act as it has been construed.
Instead, the invocation of the adverse effect of Plan B on 11-year-olds is an excuse to deprive the overwhelming majority of women of their right to obtain contraceptives without unjustified and burdensome restrictions.
Korman characterized Sebelius’s actions as “obviously political” and “arbitrary, capricious, and unreasonable,” and wrote:
Nevertheless, even with eyes shut to the motivation for the Secretary’s decision, the reasons she provided are so unpersuasive as to call into question her good faith. While the Secretary has strung together three factual statements in her memorandum to Commissioner Hamburg, she has failed to offer a coherent justification for denying the over-the-counter sale of levonorgestrel-based emergency contraceptives to the overwhelming majority of women of all ages who may have need for those drugs and who are capable of understanding their correct use.
While we’re celebrating the judge’s ruling, we should also keep in mind the fact that President Obama is still praising Sebelius’s unprecedented, access-denying interference and overriding of the FDA’s scientific review process.
Arguments are scheduled to be heard by the Supreme Court on April 15 on the Myriad Genetics case, which will challenge patents held on human genes, especially the BRCA1 and BRCA2 genes known to increase breast cancer risk.
The suit charges that leaving human genes in the hands of corporations limits diagnostic testing and research that could lead to cures, and limit women’s options for medical care.
Breast Cancer Action is holding a rally on April 15, the day the case is heard, to stand up for women’s health and against corporate control of our genes. It begins at 9:30a.m and will take place on the steps of the Supreme Court. To find out more, follow @BCAction on Twitter.
Our Bodies Ourselves is a co-plaintiff in the lawsuit challenging these gene patents. For further information and resources, see these previous posts:
The Guttmacher Institute reports that 2012 saw the second highest number of abortion restrictions enacted in a single year; the Center for Reproductive Justice addresses each state in this report.
Among the provisions ultimately defeated were “fetal personhood” bills in Mississippi and Oklahoma. But the notion that fetuses should be protected from the women carrying them has resulted in the restriction and punishment of women across America.
Paltrow and Flavin (who is also the author of the 2008 book “Our Bodies, Our Crimes: The Policing of Women’s Reproduction in America“) tried to identify and examine U.S. cases from 1973, the year of Roe v. Wade, through 2005, in which a medical or government authority tried or succeeded in stripping a woman’s autonomy because of pregnancy. The study appears in the Journal of Health Politics, Policy and Law.
These cases could have involved threat of or actual arrest, incarceration, or increased prison/jail time; detention in a hospital, treatment program, or mental institution; or forced medical intervention. Descriptive detail of several cases is provided, along with summary statistics on the findings.
Looking at legal, medical and other sources, Paltrow and Flavin analyzed 413 cases, which they speculate are “a substantial undercount,” because cases were difficult to identify and some sources referred to additional cases.
The data reveals substantial racial, income and geographic disparities. While almost every state had multiple cases, the regions with the most were the south (56 percent) and midwest (22 percent). These cases disproportionately targeted black women (52 percent of cases overall, and 72 percent of cases in the south), and 71 percent involved low-income women (enough so that they qualified for indigent defense).
Most women who faced criminal charges were charged with felonies; a greater percentage of black women (85 percent) were charged with felonies than white women (71 percent).
The authors explore how these disparities are interlinked with disparities in drug laws, disproportionate application of criminal laws, and outdated stereotypes about cocaine use (such as the “crack baby” myth).
The vast majority of the cases — 84 percent — involved allegations of illegal drug use. In the remaining cases, “women were deprived of their liberty based on claims that they had not obtained prenatal care, had mental illness, or had gestational diabetes, or because they had suffered a pregnancy loss.”
Although concern for the health of the fetus/infant is typically offered as a reason for increased scrutiny or detainment of pregnant women, in 64 percent of the cases there was no reported health issue cited in the allegation.
Chillingly, most cases were reported by people in so-called “helping professions”: health care providers (41 percent), social workers (12 percent), and hospital, child protective services, or police personnel (17 percent). Health care providers reported black women at a higher rate (48 percent) than white women (27 percent).
As the authors point out:
Due in part, no doubt, to the strong public health opposition to such measures, no state legislature has ever passed a law making it a crime for a woman to go to term in spite of a drug problem, nor has any state passed a law that would make women liable for the outcome of their pregnancies. Similarly, no state legislature has amended its criminal laws to make its child abuse laws applicable to pregnant women in relationship to the eggs, embryos, or fetuses that women carry, nurture, and sustain. No state has rewritten its drug delivery or distribution laws to apply to the transfer of drugs through the umbilical cord. To date no state has adopted a personhood measure, and no law exists at the state or federal level that generally exempts pregnant women from the full protection afforded by federal and state constitutions.
In other words, nothing about existing law should make women subject to such persecution. They also note that public health groups have observed that targeting pregnant women may lead to women avoiding medical care or having unwanted abortions to avoid increased and punitive scrutiny.
Paltrow and Flavin also highlight these cases in the context of proposed personhood laws, which would give fetuses individual rights and potentially could lead to increased prosecutions of women. They authors note that they have identified “more than two hundred cases initiated against pregnant women since 2005 that also overwhelmingly rest on the claim of separate rights for fertilized eggs, embryos, and fetuses.”
Opponents to personhood laws have cautioned that such measures could lead to forced medical interventions on pregnant women along with possible punishment for miscarriages and stillbirths. While personhood proponents often dismiss these warnings as scare tactics, the research shows there is good reason to be concerned.
Paltrow and Flavin conclude with a call for change:
In light of these continued efforts and our findings, we challenge health care providers, law enforcement and child welfare officials, social workers, judges, and policy makers to examine the role they play in the arrests and detentions of and forced interventions on pregnant women. We call on these same people to develop and support only those policies that are grounded in empirical evidence, that in practice will actually advance the health, rights, and dignity of pregnant women and their children, and that will not perpetuate or exacerbate America’s long and continuing history of institutionalized racism.
Finally, our study provides compelling reasons for people who value pregnant women, whether they support or oppose abortion, to work together against personhood and related measures so women can be assured that on becoming pregnant they will retain their civil and human rights.
The whole article is well worth a read if you can get a copy. The abstract is freely available online.
Last night, the War on Women suffered a setback — due largely to women voters who used the ballot to re-elect President Barack Obama and to push back against absurd, insulting and just plain offensive comments about rape and women’s bodies.
Two of the biggest losers last night were the gentlemen who claimed that women have magic wombs that stop pregnancy from occurring during legitimate rape and if it does happen, it was a gift from God. The magic was in our votes, ladies. We’ve had it all along.
Erin Gloria Ryan’s post at Jezebel is succinctly titled “Team Rape Lost Big Last Night.” Read it for a complete look at races around the country.
Some highlights …
Missouri Rep. Todd Akin failed to unseat incumbent Sen. Claire McCaskill, causing Twitter to explode with a new round of Akin-related humor, like “Claire McCaskill legitimately wins and shuts that whole Akin thing down!”
John Koster was defeated by Suzan DelBene in Washington state — Koster famously referred to “the rape thing” and confused one woman’s choice with controlling all women’s choices: “I know a woman who was raped and kept the child, gave it up for adoption and doesn’t regret it.”
hey @RepToddAkin, now maybe you’ll finally have time to get crackin at all those books @oboshealth and @TheLadydrawers dropped off!
We heartily second that recommendation.
Following the defeat of Indiana Senate candidate Richard Mourdock — who recently said, “I think even when life begins in that horrible situation of rape, that it is something that God intended to happen” — Jason Lefkowitz tweeted: ”And in Indiana, Mourdock has officially been buried under a massive pile of hardback copies of ‘Our Bodies, Ourselves.’”
Jason Cherkis also took note of the upsets, tweeting: ”GOP furiously buying ‘Our Bodies, Ourselves’ on Amazon.”
Rep. Tammy Baldwin became the first openly gay senator, and the first woman senator from Wisconsin. Rep. Mazie Hirono became the first woman senator from Hawaii as well as the first Japan-born immigrant to be elected to the Senate and the first Buddhist.
Another big success last night was the passage of ballot measures in Maine and Maryland approving same-sex marriage, the first time it has been made legal through a popular vote. An amendment to ban same-sex marriage was defeated in Minnesota.
We’re still waiting to hear for sure about Washington state, but early returns are promising. Same-sex marriage is now legal in eight states as well as in Washington, D.C.
More good news: Iowa Supreme Court Justice David Wiggins is staying on the bench – he had been targeted for removal because of his role in the legalization of gay marriage in that state.
Mixed results on abortion-related measures …
Abortion-related measures were considered in two states. In Florida, voters defeated Amendment 6, which would have prevented state employees from using their healthcare coverage for most abortions, and would have affected privacy rights in a way that could have led to further restrictions.
And if anyone needs a reminder of the work we still have before us, On the Issues magazine has appropriately titled its fall issue “The Day After.”
From the editor’s note: “On wide-ranging issues — the economy to the environment, reproductive freedom to voting freedom, sexuality to media representation — our writers, artists and thinkers in The Day After remind us to extend our vision beyond the ballot box to where we need to place our energies, build our muscles and put our feet on the ground every day of the year.”
Senators Bob Casey (D-Penn.) and Jeanne Shaheen (D-N.H.) this week introduced the Pregnant Workers Fairness Act to provide pregnant workers with legal protection against discrimination, similar to protections provided by the existing Americans with Disabilities Act (which does not cover pregnancy).
Pregnant workers face discrimination in the workplace every day, which is an inexcusable detriment to women and working families in Pennsylvania and across the country. This legislation will finally extend fairness to pregnant women so that they can continue to contribute to a productive economy while progressing through pregnancy in good health.
The bill was also introduced in the House earlier this summer by Rep. Jerry Nadler (D-N.Y.) and has more than 100 cosponsors. Not much has happened on it, though, except referrals to various committees — prompting RH Reality Check’s Sheila Bapat to remark that the bill was “going nowhere fast.”
Bapat also clarifies why the the Pregnant Workers Fairness Act matters, even though a Pregnancy Discrimination Act has existed since 1978:
There are laws that protect pregnant women from discrimination, but they have not been interpreted to protect women seeking adjustments to their work responsibilities. The Pregnancy Discrimination Act (PDA) was passed over 30 years ago and prevents discrimination “on the basis of pregnancy, childbirth and related medical conditions.” But the PDA is interpreted to only protect women who are pregnant but not hindered in job performance due to pregnancy or women who cannot work at all and need leave.
Los senadores Bob Casey (Demócrata, Pennsylvania) y Jean Shaheen (Demócrata, New Hampshire) presentaron introdujeron la Ley de Equidad para Trabajadoras Embarazadas esta semana para extender protecciones legales a trabajadoras embarazadas contra la discriminación, protecciones a las que provee el Acta de Americanos con Descapacidades (que no cubre el embarazo) .
Muchas mujeres embarazadas necesitan arreglos sencillos en el trabajo: el permiso de trabajar sentadas, o descansos de baño mas frecuentes. Pero estos arreglos no están protegidos bajo las leyes actuales. Como ejemplo, una trabajadora fue despedida después de cargar y beber agua de una botella, ya que el negocio donde trabajaba tenia una regla prohibiendo empleados de comer y beber durante el trabajo.
Trabajadoras embarazadas enfrentan discriminación en el trabajo todo los días, lo que es un detrimento sin excusa a las mujeres y familias trabajadoras de Pennsylvania y por toda la nación. Esta ley finalmente extenderá equidad a las mujeres embarazadas para que puedan continuar a contribuir a una economía productiva mientras que progresan con un embarazo sano.
La ley se presentó en la Cámara de Representantes previamente en este verano por el Rep. Jerry Nadler (Demócrata Nueva York) y tiene más de 100 copatrocinantes. Sin embargo, no ha progresado mucho, menos ser referida a varios comités– provocando el comentario de Sheila Bapat de RH Reality Check, “ la ley no estaba yendo a ningún lugar.”
Bapat también nos clarifica las razones por la cuales la Ley de Equidad para Trabajadoras Embarazadas tiene importancia, aunque una Acta contra Discriminación en el Embarazo ha existido desde 1978:
Ya existen leyes que protegen mujeres embarazadas contra la discriminación, pero no han sido interpretado en términos de proteger mujeres que buscan modificaciones a sus responsabilidades en el trabajo. El Acta contra Discriminación en el Embarazo (PDA) se aprobó hace 20 años, y previene la discriminación “a base de embarazo, parto, y condiciones médicas relacionadas.” Pero esta ley ha sido interpretada a proteger solamente a las mujeres que están embarazadas pero que no necesitan modificaciones en su trabajo para continuar, o mujeres embarazadas que ya no pueden seguir trabajando y que necesitan baja por maternidad.
Defensores Nacionales para Mujeres Embarazadas tiene una guía a las leyes que afectan la discriminación contra las mujeres embarazadas en el trabajo en la red un buen punto de partida para comprender las protecciones que ya existen y los huecos en las leyes actuales, como el Acta de Americanos con Descapacidades y el Acta de Baja Médica y de Familia (“ADA” y “FMLA” en sus siglas ingleses”.
El Centro Nacional de Ley de Mujeres (National Women’s Law Center) está promoviendo la aprobación de la ley, y tiene varias entradas útiles en su blog para profundizar conocimiento sobre el tema. Entradas excelentes incluyen “It Shouldn’t Be A Heavy Lift: Pregnant Workers Fairness Act Introduced in Senate,” y “The Pregnant Workers Fairness Act: What It Means for Low-Wage Working Women.”
The National Latina Institute for Reproductive Health issued a press release, Supreme Court decision means health care access for Latinas, calling the decision “a significant victory for Latinas, who are more likely than other groups to face structural barriers that prevent them from accessing health care and preventive services.” They also note, however, that works remains to be done and many immigrants still lack access to essential care.
Physicians for Reproductive Choice and Health’s board chair Douglas Laube released a statement for the organization, writing:
Thanks to today’s ruling, we can move closer to the day when our patients won’t go without basic medical care because they can’t pay for it. The Affordable Care Act has already begun to change health insurance in the United States for the better, doing away with pre-existing conditions, gender-rating (making insurance more expensive for women than men), and other practices that have hurt women’s health.
• More than 45 million women have already received coverage for preventive health screenings at no cost since August 2010 thanks to the Affordable Care Act – including mammograms and Pap tests – and millions more will be able to get free screenings in the coming years.
• 3.1 million young adults have already been able to stay on their parents’ insurance because of the Affordable Care Act. In the next year, millions more who would have otherwise lost coverage will continue to be insured under their parents’ plan.
• Women are guaranteed direct access to ob/gyn providers without a referral, as a result of the Affordable Care Act.
• Starting in August, birth control will be treated like any other preventive prescription under the Affordable Care Act, and will be available without co-pays or deductibles.
[Note: this post and the linked materials contain graphic discussion of sexual abuse, rape, and prison genital searches.]
A Michigan women’s prison that was practicing a particularly degrading type of visual body cavity search on prisoners has agreed to stop the searches.
Earlier this month, the ACLU sent a letter to the Michigan Department of Corrections demanding that they end the practice of performing spread-labia vaginal searches at the Women’s Huron Valley Correctional Facility. During such searches, women were required to sit on a chair or table and spread their own labia for inspection by prison guards. The women were sometimes forced to undergo such inspection in view of other prisoners, and if they objected, could “be forced to submit through physical force or punished with solitary confinement.”
Our Bodies Ourselves signed on to the ACLU’s letter objecting to these practices, along with several other organizations.
Despite the invasiveness of the inspections, no apparent attention was given to hygiene or to the women’s health. From the letter:
In addition, measures to assure sanitation during these invasive searches are often incomplete or ignored entirely, resulting in women being exposed to the menstrual blood or other bodily fluids of other prisoners when they sit on the chair, including those suffering from serious communicable conditions such as HIV and hepatitis. A disposable liner for use on the chair is rarely if ever provided, and women are seldom permitted to sanitize the chair or wash their hands after the search. At least one woman has suffered a vaginal infection which she believes was contracted during a spread-labia vaginal search.
These searches were not just performed on women newly entering the facility or on those suspected of hiding contraband – they occurred every time the women had visitors, even legal representation or religious workers, and after prison work shifts or receipt of medical care. No considerations were apparently made regarding the actual seriousness of the threat if there was suspected contraband, or for individual women’s physical or psychological needs. For example:
On one occasion, four kitchen workers were subjected to spread-labia vaginal searches in full view of one another because a guard believed that some chicken might have been stolen from the kitchen. No exceptions are made for women who are menstruating, pregnant, ill, or have been sexually abused, whether prior to or during their incarceration.
The ACLU received letters from more than 60 prisoners about these searches; some of their stories have been shared online. Here and elsewhere, women have described not wanting to receive any visitors (because of the search afterward); the discomfort of being forced to touch their own genitals in front of others or of having their PTSD triggered; and feeling that they are being raped when subjected to these exams.
The Michigan Department of Corrections said it had ended the practice in December, while the ACLU said it continued to get complaints about it more recently. Last week, the ACLU confirmed that the practice has now been stopped.
Such spread-labia searches are apparently *not* the norm in prisons nationwide. Even a spokesperson for the state prison stated (emphasis added):
“Corrections officers didn’t think it was necessary, prisoners felt it was an irritant, the prison psychiatric staff thought it was a stressor and, in nearly two years, it didn’t find any contraband.”
An editorial at the Detroit Free Press called the practice “demeaning and unnecessary,” and notes that follow-up is needed to ensure compliance with the halt:
Warden Warren deserves credit for taking the initiative to investigate the policy and end it, at least officially. But given the department’s history of sexual abuse, Corrections must now take additional measures to ensure the new policy is followed, as well as review its polices on strip searches in general to determine if they are necessary and conducted in the least degrading manner possible.
Kudos to the women who wrote letters to the ACLU and to the ACLU for bringing this invasive, unnecessary, and traumatizing practice to light.
I think it’s important — because I watched some of the commentary last week — to remind people that this is not an abstract argument. People’s lives are affected by the lack of availability of healthcare, the inaffordability of healthcare, their inability to get healthcare because of preexisting conditions.
The law that’s already in place has already given 2.5 million young people healthcare that wouldn’t otherwise have it. There are tens of thousands of adults with preexisting conditions who have healthcare right now because of this law. Parents don’t have to worry about their children not being able to get healthcare because they can’t be prevented from getting healthcare as a consequence of a preexisting condition. That is part of this law.
And, as of 2014, adults would also be protected. Women could no longer be denied coverage based on pre-existing conditions such as pregnancy or domestic violence. The law would also eliminate gender rating, in which women end up paying more than men for insurance coverage.
Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to the insurance companies, and are getting preventive care because of this law.
So, that’s just the part that’s already been implemented. That doesn’t speak to the 30 million people who stand to gain coverage once it’s fully implemented in 2014.
And I think it’s important, I think the American people understand and I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get healthcare.
We have to wait until sometime in June to find out if Obama is right, but there’s been no shortage of guess work underway to determine 1.) whether the Supreme Court will uphold the individual mandate requiring almost every American to buy health insurance; and 2.) what will become if health care reform if it does not.
Writing in The New Yorker, Jeffrey Toobin notes that the “heavy burden” of justification for the mandate — which Justice Anthony M. Kennedy asked Donald Verrilli, the solicitor general, to address — should instead be placed on the law’s challengers.
“The involvement of the federal government in the health-care market is not unprecedented; it dates back nearly fifty years, to the passage of Medicare and Medicaid,” writes Toobin. “The forty million uninsured Americans whose chances for coverage are riding on the outcome of the case are already entered ‘into commerce,’ because others are likely to pay their health-care costs.”
“Acts of Congress, like the health-care law, are presumed to be constitutional,” he later adds, “and it is—or should be—a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government.” Toobin then demonstrates how the justices’ questions reflected a troublesome meddling in policies set by Congress.
The Individual Mandate – A Not-So-Brief History
The individual mandate, as explained in this NPR story, has Republican roots dating back to 1989. Rachel Maddow discussed the party-line history during a recent segment, summed up as: “When Republicans proposed it — great idea, a conservative solution. When a Democrat has the idea, it’s socialism, tyranny and unconstitutional.”
Though Republicans circa 2012 would like Americans to believe the individual mandate is indeed “unprecedented,” Linda Greenhouse, who covered the Supreme Court for The New York Times for 30 years and who now writes a column on legal issues, applies the description to the politics of this debate:
What’s unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement. Republican officeholders in all 26 states joined together in the case now known as United States Department of Health and Human Services v. State of Florida. In 22 of those states, the officeholder was the attorney general. In four states with Democratic attorneys general (Nevada, Wyoming, Iowa and Mississippi), Republican governors filed in their own names. If any of them noted any irony in the fact that not so long ago, the individual mandate was an idea cooked up by conservative policy wonks to counter more fundamental reform sought by the Clinton administration, they offer no sign.
The countless unprecedented things that Congress has done over the centuries were not, for that reason, unconstitutional. Social Security, Medicare, the Employee Retirement Income Security Act (Erisa), and the Emergency Medical Treatment and Labor Act, the 1986 law passed to prevent hospitals from refusing to care for uninsured patients in acute distress, all come to mind. (From the perspective of today’s toxic politics, it’s a miracle that any of these laws actually got passed, but that’s a separate issue.) So there must be some problem with the Affordable Care Act other than “never before.”
There are other federal mandates involving health care already on the books, including the Medicare payroll tax on workers and employers, and the 1996 Newborns’ and Mothers’ Health Protection Act, which requires plans offering maternity coverage to pay for at least a 48-hour hospital stay (96 hours following a c-section).
Isn’t It Ironic (Don’t You Think)
Some Republicans who can’t help but fly into an apoplectic rage upon hearing the term “mandate” in the context of health care reform remain surprisingly calm when mandating medical procedures for women.
Yes, I’m referring to government-mandated ultrasounds. Currently, seven states — most recently Virginia — mandate that an abortion provider perform an ultrasound on a woman seeking to have an abortion. These states, along with more than a dozen others, also require the provider to ask the woman if she’d like to view the image.
The Guttmacher Institute notes: “Since routine ultrasound is not considered medically necessary as a component of first-trimester abortion, the requirements appear to be a veiled attempt to personify the fetus and dissuade a woman from obtaining an abortion. Moreover, an ultrasound can add significantly to the cost of the procedure.”
The Road Ahead
The question of whether other parts of the Affordable Care Act can proceed without the individual mandate will continue to be debated until June. If the mandate alone is struck, insurance premiums would likely increase because insurance companies won’t have the built-in benefit of a broader insurance pool.
“Republicans would blame Obama for making health insurance more expensive. Democrats would blame insurers for the higher premiums. In other words: Déjà vu and total gridlock,” writes Jennifer Haberkorn of Politico. Her story explains what’s likely to happen if the Supreme Court strikes just the mandate, or the mandate and insurance reforms, along with the political fall-out if most of the law falls or is upheld.
Josh Gerstein, also of Politico, looks at the effects beyond health care reform: “If the justices knock out key parts of the law or bring down the whole thing, the reverberations could be felt across the legal landscape for generations to come, radically reining in the scope of federal power, according to supporters of the law and others who closely track the high court. And if the justices decide the individual mandate is a constitutional overreach, these observers say, federal labor and environmental laws could be the next on the firing line.”
If you think that seems too dire a prediction, consider Dahlia Lithwick’s reaction to comments made by the court’s conservative justice’s last week: “[A]s the justices pondered whether the individual mandate—that part of the Affordable Care Act that requires most Americans to purchase health insurance or pay a penalty—is constitutional, we got a window into the freedom some of the justices long for. And it is a dark, dark place.”
Those who would welcome the disintegration of health care reform include The Cato Institute’s Michael Cannon. He told NPR that if the entire law were to go away, “we would have just dodged this whole nasty debate over religious freedom and abortion.”
Meaning: There would be no increased access to preventive health care such as contraception, breastfeeding support, and screening for breast and cervical cancers and HIV. But hey, women’s health is so darn offensive when you get down to it, better to just cast it off. Thanks, but we’ve been there.
On the other hand, maybe a defeat at the hands of the Supreme Court will open new doors, for everyone.
The Supreme Court ruled 5-4 on Tuesday that state government workers may not sue their employers for money for violating a part of the federal Family and Medical Leave Act dealing with personal sick leave.
The case was brought by Daniel Coleman, a Maryland state court employee who was fired after requesting a 10-day medical leave. The state argued that federal law could not be applied because states, as sovereigns, are generally immune from lawsuits seeking monetary damages.
The Family and Medical Leave Act of 1993 entitles eligible employees 12 weeks of job-secured leave during any 12-month period for: (A) the birth of a child and to care for the newborn child within one year of birth; (B) the adoption or foster care of a child and to care for the newly placed child within one year of placement; (C) care for a spouse, child, or parent with a serious health condition; (D) a serious health condition that makes the employee unable to perform the functions of the position.
The case hinged on whether the sick-leave provision addressed gender bias. Justice Anthony Kennedy, who wrote the majority opinion, said it did not. He was joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas. Justice Antonin Scalia agreed with the judgment but did not join Kennedy’s opinion, excerpted below:
Without widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave, it is apparent that the congressional purpose in enacting the self-care provision is unrelated to these supposed wrongs. The legislative history of the self-care provision reveals a concern for the economic burdens on the employee and the employee’s family resulting from illness-related job loss and a concern for discrimination on the basis of illness, not sex. [...] It is true the self-care provision offers some women a benefit by allowing them to take leave for pregnancy-related illnesses; but as a remedy, the provision is not congruent and proportional to any identified constitutional violations.
So since they found no evidence of discrimination or sex stereotyping, the majority found no reason to lift the usual protections against suing a state.
Justice Ruth Bader Ginsburg wrote the dissenting opinion and was joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. From the dissent:
The FMLA’s purpose and legislative history reinforce the conclusion that the FMLA, in its entirety, is directed at sex discrimination. Indeed, the FMLA was originally envisioned as a way to guarantee—without singling out women or pregnancy—that pregnant women would not lose their jobs when they gave birth. The self-care provision achieves that aim.
It goes on to provide an interesting history of the development of the FMLA.
“The best way to protect women against losing their jobs because of pregnancy or childbirth, Congress determined, was not to order leaves for women only, for that would deter employers from hiring them,” said Ginsburg, who took the unusual step of summarizing the dissent from the bench, signaling a major disagreement. “Instead, Congress adopted leave polices from which all could benefit.”
Justice Ginsburg noted that “[t]he plurality pays scant attention to the overarching aim of the FMLA: to make it feasible for women to work while sustaining family life. Over the course of eight years, Congress considered the problem of workplace discrimination against women, and devised the FMLA to reduce sex-based inequalities in leave programs. The self-care provision is a key part of that endeavor, and in my view, a valid exercise of congressional power….”
Even Justice Kennedy’s opinion acknowledged that “[d]ocumented discrimination against women in the general workplace is a persistent, unfortunate reality, and, we must assume, a still prevalent wrong. An explicit purpose of the Congress in adopting the FMLA was to improve workplace conditions for women.”
Today’s ruling underscores how tenuous the rights of workers are in this country, and the urgent imperative for the Senate to confirm only those justices and judges who have a demonstrated commitment to equal rights under the law and a real understanding of the impact of their rulings on women, workers and others who struggle to make ends meet.
Plus: Earlier this year, Judith Lichtman, a National Partnership for Women and Families senior advisor, presented seven specific recommendations to the U.S. Equal Employment Opportunity Commission (EEOC) on what federal agencies can do in response to discrimination based on pregnancy and caregiving. View her full testimony (pdf).
The American Civil Liberties Union has launched the “Take Back Our Genes” campaign to fight against issuing patents issued human genes. The ACLU believes that allowing one company to own the patent for a particular gene limits research on genetic health conditions and also limits patient options for genetic testing.
As the organization explains:
Myriad Genetics, which controls the patents on the genes, is able to exclude others from testing and conducting research on the patented genes. Patients who want to obtain genetic testing to determine whether they are at risk for hereditary breast and ovarian cancer have only one option for full genetic sequencing: Myriad Genetics. Myriad decides what tests are offered, which mutations are included, at what cost, and what research can be conducted without fear of patent infringement liability.
The ACLU is asking individuals to send their photos or videos explaining their opposition to gene patenting. The video below provides a great example of how gene patenting can affect patients and their access to affordable, reliable testing.
Our Bodies Ourselves is one plaintiff in the lawsuit filed by the ACLU and the Public Patent Foundation against the U.S. Patent and Trademark Office, Myriad Genetics, and the University of Utah Research Foundation to challenge the patents they hold on BRCA1 and BRCA2 genes.
Yesterday, the House passed HR 358, the “Protect Life Act” which would interfere with women’s ability to choose and pay for their own health insurance plans with abortion coverage. As so clearly outlined in the dissent from the House Energy and Commerce Committee:
…this bill clearly goes further than the regulation of federal funds. Its effect would be to harass and intimidate women and their families in their use of their own money. It makes the job of private insurance companies so artificially complicated and unworkable as to force them from the market. It takes anti-abortion politics far beyond where they have been for the decades of the Hyde Amendment and to put them right in the middle of private homes and workplaces and squarely in private citizens’ paychecks and premiums. Its very essence is to create an undue burden on how people can exercise their own choices with their own money, and it creates a substantial obstacle to a woman seeking abortion services.
…For those members of Congress who have regularly said that they are opposed to federal funding of abortion, this bill is absolutely unnecessary.
President Obama has vowed to veto the bill, stating, “…the legislation intrudes on women’s reproductive freedom and access to health care and unnecessarily restricts the private insurance choices that women and their families have today.”
The Rachel Maddow Show had a nice piece on this last night which called out the Republicans for focusing on an ongoing war against women’s rights instead of focusing on the current unemployment situation. It includes another impassioned speech from Jackie Speier, who spoke so strongly against the bill earlier in the year. Speier also appears as a guest on the show in this clip.