Appeals Court Hears Christian University's Suit Over Health Care Law, Contraceptive Coverage Rules
May 17, 2013 — A federal appeals court panel on Thursday seemed "skeptical" that Liberty University could challenge the federal contraceptive coverage rules, but one judge appeared receptive to the school's arguments against the Affordable Care Act's (PL 111-148) requirement that most employers offer health insurance coverage to their workers, Politico reports.
When the suit was first filed in 2010, it challenged both the employer mandate and the requirement that individuals obtain health insurance or pay a penalty. The university also later claimed that the individual and employer mandates require it to comply with rules mandating it offer contraceptive coverage for its workers, which it argues goes against its religious beliefs (Haberkorn, Politico, 5/17).
The 4th U.S. Circuit Court of Appeals dismissed the original case when Liberty first presented it in 2011, saying that it could not rule on the matter because the Anti-Injunction Act prevents suits over a tax that has yet to be levied.
However, the Supreme Court last year ordered the appeals court to reconsider the case in light of the high court's ruling in a separate challenge to the ACA, which found that the Anti-Injunction Act did not apply to the individual mandate (Women's Health Policy Report, 11/26/12).
The appeals panel likely will rule in the summer, according to Politico (Politico, 5/17).
Judges Consider Challenge to Contraceptive Coverage Rules
During Thursday's hearing, Liberty School of Law Dean Mathew Staver said the conservative Christian university faces millions of dollars in penalties if it refuses to offer health insurance coverage that violates its religious beliefs. The school contends that some contraceptives have abortion-inducing properties (AP/Washington Post, 5/16).
Alisa Klein -- an attorney with the Department of Justice -- called Liberty's claims about the contraceptive coverage requirements speculative and hypothetical, given that the rules have not been finalized (Thompson, Lynchburg News & Advance, 5/16).
She also said the school's health plans already meet the law's minimum requirements without having to add coverage it finds objectionable.
The judges seemed inclined to rule that the case is still not ripe for consideration, according to the AP/Washington Post. Judge Diana Gribbon Motz noted that the "regulations are tentative," while Judge Andre Davis asked Staver why the school can't wait to seek "a preliminary injunction when the regulations come down?" (AP/Washington Post, 5/16).
The judges also seemed receptive to Klein's argument that Liberty cannot challenge the contraceptive coverage rules because it did not include that complaint in its original filing. Davis noted that the current "case is very different from the case [Liberty] filed a couple years ago."
Arguments Over Employer, Individual Mandates
Although the judges seemed to suggest they might not decide the contraceptive coverage issue directly, they are likely to rule on the employer mandate claim, according to Politico. Liberty's suit is the sole case to challenge that requirement.
Klein argued that Congress has a long history of regulating employer health plans under the Commerce Clause and that the employer mandate is no different.
However, Motz said that the Supreme Court's June 2012 decision -- in which it upheld the individual mandate under the government's taxing power, not under the Commerce Clause -- "puts a new light ... on the Commerce Clause" (Politico, 5/17).
In court papers, the university has argued that the Supreme Court's finding that the ACA's penalties on individuals are a tax should invalidate the law because tax legislation is required to originate in the House, and the ACA originated in the Senate. However, that argument was not mentioned at Thursday's hearing, which focused on the employer requirements (AP/Washington Post, 5/16).
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President Obama Deplores Sexual Violence in Military as Lawmakers Offer Legislation
May 17, 2013 — President Obama summoned Pentagon officials to the White House on Thursday to discuss the problem of sexual violence in the military, while lawmakers offered legislative strategies to address the problem, The Hill's "DEFCON Hill" reports (Herb, "DEFCON HILL," The Hill, 5/16).
The meeting came after the Pentagon's release last week of a report showing that military sexual assaults have increased by 35% to 26,000, up from 19,300 in 2010. It also noted that only a fraction of victims report assaults. Obama reacted to the new figures by calling for a "no tolerance" approach to sexual crimes in the military (Women's Health Policy Report, 5/10).
Obama continued that line of rhetoric in a brief session with reporters after the meeting. Sexual assault is "dangerous to our national security" and "not a sideshow," he said, adding, "This goes to the heart and the core of who we are and how effective we're going to be" ("DEFCON Hill," The Hill, 5/16). He noted that military officials have told him "that they're ashamed by some of what's happened" (Whitlock, Washington Post, 5/16).
Obama asked Secretary of Defense Chuck Hagel and Gen. Martin Dempsey, chair of the Joint Chiefs of Staff, to lead a process that would hold offenders accountable and protect sexual assault survivors. "When victims do come forward, they deserve justice," he said, adding, "Perpetrators have to experience consequences." However, no specific initiatives were announced (Shanker/Steinhauer, New York Times, 5/16).
"There's no silver bullet to solving this problem," Obama cautioned, adding, "This is going to require a sustained effort over a long period of time" (Gaskell, Politico, 5/16).
Legislative Response
Also on Thursday, Sen. Kirsten Gillibrand (D-N.Y.) introduced legislation (S 967) that would give military prosecutors, rather than commanders, the authority to decide which cases to prosecute. The measure is among a series of legislative proposals introduced in recent weeks to address the problem of sexual assault in the military ("DEFCON Hill," The Hill, 5/16).
Sens. Kelly Ayotte (R-N.H.) and Patty Murray (D-Wash.) introduced a bill earlier this month that would provide sexual assault survivors with a military lawyer to help guide them through the claim filing process. Meanwhile, legislation by Sen. Jon Tester (D-Mont.) and Rep. Chellie Pingree (D-Maine) would address barriers that prevent sexual assault victims from getting disability benefits (Fox, U.S. News & World Report, 5/17).
In addition, Hagel has offered a number of initiatives to curb sexual assault -- including a proposal to remove military commanders' ability to overturn guilty verdicts -- which will likely be included in this year's Defense authorization bill. Other proposals that could be considered during debate of the bill range from expanding an Air Force program that provides sexual assault counseling to creating new whistleblower protections for victims and strengthening requirements for sexual assault prevention efforts ("DEFCON Hill," The Hill, 5/16).
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N.C. House Approves Bill Prohibiting Abortion Coverage in State Insurance Marketplace
May 17, 2013 — The North Carolina House on Thursday approved a measure (HB 730) that would prohibit health plans offered through the state's health insurance marketplace from covering abortion, the AP/Henderson Times-News reports. The bill now heads to the Senate (AP/Henderson Times-News, 5/16).
The measure also would prohibit city and county governments' health plans from including abortion coverage that exceeds that offered through the state employee health plan. The state employee health plan covers abortion only in instances of rape, incest or when a woman's life is in danger (WRAL, 5/15).
In addition, the bill would allow all health care professionals to refuse to participate in abortion care. Current law only specifies that nurses and physicians may refuse to provide such care (Jarvis, Raleigh News & Observer, 5/15).
House Drops Contraception Provision
The bill originally included language that would have allowed "any employer, whether incorporated or not and whether for-profit or not, that has a religious, moral, or ethical objection" to contraception to exclude contraceptive coverage from its health plan.
House lawmakers removed the provision from the bill on Wednesday after it passed out of committee. State Rep. Bob Steinburg (R) warned the panel that the provision could hurt the bill's prospects on the House floor (WRAL, 5/15).
"To suggest that in the 21st century that women would be prevented from having access to birth control -- even as far to the right as I am -- is going off the cliff. This is going too far," he said (Raleigh News & Observer, 5/15).
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El Salvadoran Supreme Court Hears 'Landmark' Abortion Case
May 17, 2013 — El Salvador's Supreme Court on Wednesday heard opening arguments in a "landmark" case involving a woman in poor health who has been denied an abortion, even though doctors said the fetus cannot survive outside the womb, the AP/ABC News reports.
El Salvador prohibits all abortions, including when a woman's life is in jeopardy. The woman and any doctors who help her could face arrest and criminal charges for ending the pregnancy.
The 22-year-old woman -- identified as "Beatriz" -- has lupus, a chronic immune disorder, as well as kidney failure. Ultrasound images show the fetus has a fatal condition called anencephaly, in which much of the brain fails to develop.
A medical committee at the maternity hospital where Beatriz is being treated said the fetus would not survive outside of the womb and recommended an abortion because her health "will certainly get worse as the pregnancy advances."
Conflicting Opinions
El Salvador's Health Ministry has said it supports allowing an abortion on health grounds. However, the government's Legal Medicine Institute said that her medical conditions are under control and that the pregnancy should continue.
Oscar Luna, El Salvador's attorney general for human rights, said, "We support protecting the rights of the mother, and this does not imply opening the door to on-demand abortion."
Jaime Marinero, a spokesperson for the Supreme Court, said it is unclear when the five-justice panel will issue a ruling.
Jose Miguel Vivanco, U.S. director for Human Rights Watch, in a statement called on El Salvadoran President Mauricio Funes to "take immediate measures so that Beatriz can terminate a pregnancy that is putting her life at serious risk" (Aleman, AP/ABC News, 5/15).
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Blogs Comment on Pregnant Workers Fairness Act, Global Reproductive Health Issues, More
May 17, 2013 — We've compiled some of the most thought-provoking commentaries from around the Web. Catch up on the conversation with bloggers from the National Women's Law Center, Ms. Magazine and more.
PREGNANT WORKERS FAIRNESS ACT: "'We Don't Pay You To Pee' and Other Reasons Why We Need the Pregnant Workers Fairness Act," Cortelyou Kenney/Liz Watson, National Women's Law Center's "Womenstake": "Across the country, pregnant women face discrimination in the workplace when their employers refuse to make adjustments to their job duties such as honoring lifting restrictions, allowing them to stay off high ladders, or even just letting them go to the bathroom to vomit," write Kenney - a NWLC fellow -- and Watson -- a senior adviser. Although the "Pregnancy Discrimination Act (PDA) outlawed this type of discrimination in 1978," many lower courts have "misinterpreted the PDA, holding incorrectly that it permits employers to provide accommodations to workers with disabilities or on-the-job injuries but deny those accommodations to pregnant workers," they note. The Pregnant Workers Fairness Act (S 942, HR 1975) -- introduced this week by Rep. Jerrold Nadler (D-N.Y.) and Sens. Robert Casey (D-Pa.) and Jeanne Shaheen (D-N.H.) -- would allow "Congress to set the record straight: a temporary physical impairment that can easily be accommodated should not cost a pregnant worker her job," Kenney and Watson write (Kenney/Watson, "Womenstake," NWLC, 5/14).
GLOBAL REPRODUCTIVE HEALTH: "Poorer Countries Get Price Cut on HPV Vaccine -- But Is It Enough?" Ponta Abadi, Ms. Magazine blog: Although "[s]ome of the world's poorest countries are getting price cuts for [human papillomavirus] vaccines that protect against 70 percent of all cervical cancers," the prices are "still too high," Abadi writes. She notes, "For one out of four people in developing countries, it would take more than three days to earn enough to get" a single dose of the HPV vaccine at the reduced cost of about $4.50, "and more than 10 days to have enough for the full three-dose treatment," which is assuming "they don't need money for anything else," such as food. However, Abadi notes that "the price drop is at least a step in the right direction" (Abadi, Ms. Magazine blog, 5/16).
ABORTION-RIGHTS OPPONENTS: "Dr Tiller's Killer Accused of Threatening Another Abortion Provider," Kaite Halper, Feministing: Scott Roeder -- who was convicted of fatally shooting George Tiller, a Wichita, Kan., abortion provider, in May 2009 -- is now accused of threatening Julie Burkhart, executive director of Trust Women Foundation, which opened a clinic at Tiller's former facility in April, Halper writes. Roeder reportedly was recorded on the phone stating that Burkhart's reopening of the clinic is "almost like putting a target on your back." Halper writers that if Roeder is convicted of the new charges, he could face discipline in prison, such as "loss of privileges and extra uncompensated work" (Halper, Feministing, 5/16).
VIOLENCE AGAINST WOMEN: "Harry Reid to RH Reality Check: Military Sexual Assault Reporting System Needs Fixing," Adele Stan, RH Reality Check: Senate Majority Leader Harry Reid (D-Nev.) "had few kind words for military leaders as news hit the media of yet another sexual assault scandal involving a military officer who was designated to handle sexual assault cases," Stan writes. Reid told reporters that "[t]his is a big story" and that the "present system is not working well." However, Stan notes that Reid "stopped just short of endorsing legislation" proposed by Sen. Kirsten Gillibrand (D-N.Y.) that would remove the handling of sexual assault cases from the chain of command, saying he had not read the bill yet (Stan, RH Reality Check, 5/15).
What others are saying about violence against women:
~ "Solving the Sexual-Assault Crisis in the Military," Jena McGregor, Washington Post's "On Leadership."
NEED FOR LEGAL ABORTION: "Why Is El Salvador Letting a Woman Die?" Marianne Møllmann, RH Reality Check: "El Salvador's government is deliberately denying lifesaving treatment to [a] woman, for no reason other than that she is pregnant," writes Amnesty International's Møllmann, adding, "The only reasonable explanation for the public stand-off is that Beatriz and other resource-poor women are politically expendable, and that crossing the Catholic Church is seen as worse than being hung out in the press as inhumane." Møllmann writes that "governments owe everyone the same rights, regardless of faith, sex, family status, or ability to pay for votes or medical treatment." She concludes, "I don't understand what El Salvador's government has to gain from watching this young woman die a preventable death. And I don't understand how we can continue to allow this to happen" (Møllmann, RH Reality Check, 5/16).
INFERTILITY: "A Note of Caution: Freezing Eggs Is Not a Silver Billet for Age-Related Infertility," Miriam Zoll, RH Reality Check: A "$4 billion industry is driving the public discourse about often unproven" assisted reproductive technologies "through a lens that focuses attention on the minority of successes rather than the whole messy, complicated story," writes Zoll in response to a Wall Street Journal article encouraging "women to ward off age-related infertility by simply freezing their eggs." Zoll points out that the procedure may have provided the author -- Sarah Elizabeth Richards -- with "a sense of hope and temporary emotional equilibrium," but of the "1.5 million [fertility] treatments performed globally, 1.1 million failed -- a 77 percent failure rate." She writes that Richards, like others faced with "scarce, biased or non-existent" evidence and information must hope for the best. But if Richards' plan fails, she will "join the ranks of millions of men and women who ... have experienced involuntary biological childlessness as a result of delaying parenthood and relying on science for last-minute miracles," Zoll concludes (Zoll, RH Reality Check, 5/15).
BREAST CANCER: "How it Feels To Lose Your Breasts," Liz Kulze, The Atlantic: "[A]s equalizing and humanizing as [Angelina] Jolie's words were ... it is both flippant and naive not to acknowledge that [mastectomies change] women, however intact their femininity remains," writes Kulze in a piece discussing the experiences of her grandmother and a friend who underwent the procedure. She writes that women who have mastectomies might "'feel like a eunuch' in the words of my grandmother, or 'naked,' 'self-conscious' and 'haunted by a void,' in the words of my friend, but they are women who have done what they had to do, understanding that surgery is no panacea." Kulze's friend said that a woman is "'forever changed'" after the procedure, to which Kulze adds, "And so is every survivor, of any trauma, no matter their sex or level of strength" (Kulze, The Atlantic, 5/15).
What others are saying about breast cancer:
~ "I'm 25 and I Have the Angie Gene," Abby Haglage, Daily Beast's "Women in the World."
~ "Why I Chose Not To Get Tested for BRCA Genes," Florence Williams, Slate's "XX Factor."
TEEN PREGNANCY AND PARENTING: "Why It's Important To Support Students With Kids," Kristina Chew, Care2: "The reason many students who are parents do not get their degrees is directly related to the challenge of balancing child care and schoolwork," Chew writes, citing a report from the American Association of University Women that found "68 percent of mothers who attend community college spend an average of 30 hours a week in caring for their children," compared with 42% of students who are fathers. She continues, "Without access to childcare, many students who are mothers drop out of school." Chew writes, "Along with providing more and adequate child care funding for students who are parents, we also need to focus on making colleges and universities be as supportive of students with children of their own as possible." She concludes, "Such support can be via grants and other kinds of funding but also through understanding about the need for flexibility in taking classes and completing coursework -- about all the demands on a person's time that being a parent, and a student, can make" (Chew, Care2, 5/15).
What others are saying about teen pregnancy and parenting:
~ "Will the Teen Mom Shaming Ever Stop?" Verónica Bayetti Flores, Feministing.
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Videos Discuss House's Latest ACA Repeal Attempt, Adolescent Health and Sexuality, Military Sexual Assault Cases
May 17, 2013 — In this edition, we feature discussions about what women would stand to lose if the Affordable Care Act were repealed, how misguided perceptions about teen sexuality are shaping policy decisions and why sexual assault remains a pervasive problem in the military.
Women are among the groups that would stand to lose the most if the Affordable Care Act were repealed, says MSNBC's Martin Bashir, who blasts the House for taking its 37th vote to try to overturn the law. He notes that millions of women would lose affordable coverage for contraceptives, domestic violence counseling, cancer screenings and other services, like the genetic test that actress Angelina Jolie cited this week for revealing her increased chance of breast and ovarian cancers. Political strategist Angela Rye and MSNBC's Krystal Ball join Bashir to discuss House leaders' motives behind the repeal votes (Bahsir, "MSNBC Live," MSNBC, 5/15).
Teen girls are "regularly denied the space and support to emerge safely into womanhood in an environment of sexual consent and exploration. Instead America's young women are shamed, silenced, miseducated, exploited and sometimes even denied health care," argues MSNBC's Melissa Harris-Perry. She draws parallels between the thinking behind a North Carolina proposal to require notarized parental consent for minors' reproductive and mental health care and the Obama administration's efforts to limit access to emergency contraception. Feminist organizer Shelby Knox, physician Melissa Gilliam, psychology professor Kathryn Stamoulis and author L.Y. Marlow join Harris-Perry for the discussion. The panel also comments on the messages abstinence-only education sends to young women, focusing on recent comments on the issue by former kidnapping victim Elizabeth Smart (Harris-Perry, "Melissa Harris-Perry," MSNBC, 5/11).
Holding hearings and calling for more training will not solve the problem of sexual assault in the military, says Rep. Jackie Speier (D-Calif.), who argues that the issue requires dramatic changes in culture and policy. As part of the response, Speier and other lawmakers are pushing to remove decisions about prosecuting sexual assault cases from the chain of command. Adequate health care for survivors of sexual assaults is also critical, adds retired Army Major General Robert Shadle. CNN's Carol Costello also speaks with Army veteran Nichole Bowen, who was sexually assaulted and harassed during a tour in Iraq (Costello, CNN, 5/16).
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