Federal Updates

Trump Administration Updates

Trump purges the Department of Homeland Security

There have been a series of leadership changes in the Department of Homeland Security (DHS), suggesting that Trump is trying to push the Department to enact harsher anti-immigration policies. Now-former DHS Secretary, Kristjen Nielsen, resigned April 7. Nielsen was arguably the most aggressive DHS secretary in the Department’s history, overseeing the implementation of Trump’s zero tolerance policy of separating parents from their children at the border. Yet Trump wants more. He announced plans to designate Kevin McAleenan, the head of Customs and Border Protection, acting secretary of DHS. This is a controversial and possibly illegal move because the undersecretary for management should be next in the chain-of-command.

In other changes, Trump withdrew Ron Vitiello’s nomination to lead Immigration and Customs Enforcement (ICE) because Trump wants to go in a “tougher direction.” The Director of the Secret Service, Randolph Alles, was removed and the DHS Undersecretary of Management, Claire Grandy, resigned.

This “near-systematic purge” of DHS is happening in the context of Trump’s escalating anti-immigrant threats. He has pushed to reinstate a broader family separation policy, threatened to close the U.S.-Mexico border (which he later walked back), told border agents to refuse to allow migrants through the border, and called for “get[ting] rid of” immigration judges. Trump Administration officials have said that it could take two more years to find migrant children separated for their families, and another person — Abel Reyes-Clemente — died while in ICE custody this month.

Senate invokes “nuclear option” to speed up confirmation of Trump nominees

Senate Republicans voted to reduce debate time from 30 hours to 2 hours per nominee on sub-cabinet executive and judicial nominees. This move will allow the Republican controlled Senate to quickly confirm more Trump district-level judicial nominees, radically reshaping the make-up of the federal courts.

Sexual and Reproductive Health and Rights

Trump Administration gives $1.7 million to help fund fake family planning clinics

The Trump Administration announced a chain of “crisis pregnancy centers” (CPCs) run by the Obria group would receive $1.7 million in Title X Family Planning Funds. CPCs are often called fake clinics because they do not offer a full range of reproductive health care information and services. They are known to intentionally mislead patients about services available in order to block patients from accessing abortion care. Additionally, fewer Planned Parenthood affiliates will receive Title X funding this year. The Trump Administration’s decision to strip federal funding from trusted, comprehensive reproductive health care providers, like Planned Parenthood, and providing funds to CPCs, that do not provide patients basic health care like contraceptives or abortions, will have a lasting detrimental effect on the health and well-being of the most marginalized communities, including women living with HIV.

Dangerous anti-abortion bills continue to move forward

On the state and federal levels, anti-choice lawmakers are working to reduce access to an essential reproductive health service: abortion care. The Senate Judiciary Committee held hearings on a 20-week abortion ban that contained misleading and medically inaccurate claims from anti-choice activists. Republicans in the House tried to force a vote on a stigmatizing, anti-choice bill, H.R. 962, that suggests abortion providers routinely murder infants “born alive” after abortion. Similar bills raising the specter of “infanticide” have been moving in Montana, North Carolina and Texas.

Between January 1 and March 20 this year, 304 abortion restrictions were introduced in states across the country. North Dakota Governor, Doug Bergman, signed into law a bill that criminalizes the most common second-trimester abortion procedure except in limited circumstances. Lawmakers in Georgia passed a bill, H.B. 481, that would prohibit most abortions after six weeks, effectively banning the procedure in the state with limited exceptions, and redefine “natural person” to “include an unborn child.” The governor, Brian Kemp, has until May 12 to sign the bill into law. Similar six-week abortion bans have become law in Ohio, Kentucky, and Mississippi in the past three months alone. Abortion rights advocates have found a two-thirds increase in the number of six-week bans introduced comparing to this time last year.

There are some bright points. Some of the worst bills have died or been stopped. For example, a Texas bill, H.B. 896, that would have made abortion punishable by death penalty failed in committee and North Carolina’s Governor, Roy Cooper, vetoed a stigmatizing, anti-choice bill. Advocates are also using the courts to fight back. For example, the ACLU and Planned Parenthood have filed suit to challenge Utah’s 18-week abortion ban and the Center for Reproductive Rights is challenging Mississippi’s six-week abortion ban.

Department of Health and Human Services restructuring would put anti-choice official in charge of reproductive health programs

The Department of Health and Human Services (HHS) Secretary, Alex Azar, sent a letter detailing his intent to restructure HHS. The change consolidates the Office of Population Affairs’ (OPA) control over the Title X Family Planning Program and transfers the Teen Pregnancy Prevention program to OPA. This is troubling because it gives Diane Foley, a notorious anti-choice and abstinence-only advocate, direct control of these two programs.

The restructuring puts some of HHS’s most critical sexual and reproductive health programs in the hands of a woman that helped operate CPCs and propagated stigma and myths about abortion care and comprehensive sexual health education.

The Title X Domestic Gag rule is temporarily blocked

In February, the Trump Administration posted a final rule that will devastate the nation’s only low-income family planning program. The rule, known as the Title X domestic gag rule, was slated to go into effect on May 3, 2019. However, a federal court held that the rule cannot go into effect in any state in the nation until the lawsuit challenging its legality is resolved. Other lawsuits against the rule are pending as well.

The domestic gag rule is designed to make it nearly impossible for Title X providers to provide abortion services, even with non-Title X funds. The rule allows Title X providers to withhold information about health care options and to refuse to offer patients a broad range of FDA-approved contraceptive methods; bars providers from referring patients to abortion services; and encourages providers to involve parents in family planning decisions.

Ending Violence Against Women

House votes to reauthorize the Violence Against Women Act

On April 4, the U.S. House of Representatives voted to reauthorize and expand the Violence Against Women Act (VAWA), H.R. 1585. VAWA was the first federal law to take a comprehensive approach to ending violence against women in the U.S. It must be reauthorized every five years, and although it addresses many issues impacting women, it is far from perfect. One core criticism is that VAWA relies too heavily on policing and punitive sentencing to combat violence against women.

Most reauthorizations are opportunities to strengthen the law and close loopholes. This year’s  reauthorization bill includes new provisions, such as providing additional housing aid to survivors of violence; combating cyberstalking and online harassment; expanding protections for people who are gay, bisexual and transgender; requiring the Bureau of Prisons to consider the safety of people of trans experience in correctional housing decisions; and expanding gun buying restrictions to cover intimate partners who have been convicted of abuse or stalking.

The NRA lobbied intensely to defeat VAWA in the House, and it will be difficult to pass in the Republican-controlled Senate.

Health Care Access

Trump Administration proposed rule would eviscerate Affordable Care Act (ACA) non-discrimination protections for abortion care and people of trans experience

Section 1557 is the non-discrimination provision of the ACA. It bars health care programs that receive federal funds from discriminating against people based on race, color, national origin, age, disability, or sex. Previously, the federal government was clear that “sex” discrimination encompasses discrimination on the basis of gender identity and pregnancy decisions — and every district court that has ruled on the issue has affirmed that interpretation.

Yet in Franciscan Alliance v. Azar, a case challenging the scope of 1557’s protections, a federal district court issued a preliminary injunction, holding the Department of Health and Human Services (HHS) must stop protecting people against gender identity discrimination or pregnancy termination-related discrimination until the court issues its decision. This is the same district court that held the ACA unconstitutional in Texas vs United States.

The court put the case on hold in 2017 after HHS promised to review the 1557 regulations. Frustrated by the delay, the judge re-started the case in December 2018. HHS has now done what it threatened to do and issued proposed changes to the 1557 regulations. The proposed rule would reverse the inclusive interpretation of “sex” discrimination, allowing insurers and health care providers to wantonly discriminate against people of trans experience and people who need abortion care without consequence.

Bernie Sanders reintroduces Medicare for All in the Senate

On April 10, Senator Bernie Sanders reintroduced the Medicare-for-All bill. The bill would establish a federal, single-payer health care system that covers all U.S. residents and eliminates nearly all out-of-pocket cost (except for prescription drugs).

The bill does have small changes from his 2017 proposal. Specifically, this version includes coverage for long-term care in home and community settings — which the Medicare program does not currently include. The bill has 14 Democratic Senate co-sponsors, many of whom have announced their intent to seek the party’s presidential nomination for 2020.

Federal court strikes down Medicaid work requirements in Kentucky and Arkansas

A federal court held that Medicaid work requirements in Kentucky and Arkansas do not align with core Medicaid values, voiding the states’ work requirements. States can ask to change their state Medicaid programs — for example, to add requirements that people work a certain number of hours or lose coverage — with Section 1115 waivers, which the secretary of HHS must approve.

HHS approved  Kentucky and Arkansas work requirements, resulting in 18,000 people losing coverage in Arkansas — the first state in the U.S. to implement work requirements. Kentucky’s had yet to go into effect, but an estimated 95,000 people would have lost insurance.

Federal court strikes down rule to allow junk health plans

In another striking health care-related defeat for the Trump Administration, a federal judge blocked a rule that would increase the sale of “association health plans,” also known as junk health plans. The plans are referred to as “junk” because they do not have to comply with core Affordable Care Act (ACA) protections, like guaranteed essential health benefits and limits on premium changes based on age, geography or gender.

The judge said that the rule was designed to “avoid the most stringent requirements of,” and a clear attempt to “end-run around,” the ACA. The ruling comes as the Trump Administration continues its assault on the ACA, including arguing that the law is unconstitutional in court and announcing that a Republican will come up with a “really great” plan to replace it after the 2020 elections.

Department of Justice opens review of Truvada for PrEP patent

According to Thomas Folks, a retired scientist with the Centers for Disease Control, the Department of Justice (DOJ) is reviewing a government patent for Truvada for pre-exposure prophylaxis (PrEP), a specific use of the drug to prevent HIV transmission. Folks reported a meeting with a DOJ lawyer about the discoveries Folks’ team made when pioneering Truvada for PrEP. Gilead, the company that produces Truvada, has argued that the government patent is invalid and refused to pay royalties. Previously, the government refused to sue Gilead for patent infringement. This DOJ review does not guarantee a patent infringement suit will be filed, but could give the government more negotiating power to cut the prices of Truvada for PrEP.

Immigrant Justice 

Appeals court allows Trump administration’s “Remain in Mexico” policy to proceed, temporarily

DHS began quietly implementing the “Migration Protection Protocols” — better known as the “Remain in Mexico” policy — in late January, turning Central American asylum seekers back to Mexico while their case is processed. On April 9, a federal district court judge issued a preliminary injunction, meaning that the Trump Administration must stop forcing asylum-seekers to return to Mexico while this case goes through the courts. The government appealed the district court decision to the Ninth Circuit, setting the lower court’s injunction aside temporarily, allowing the Trump Administration to continue enacting the policy. The Ninth Circuit will hear arguments and decide whether or not the injunction should be in place this week.

It is important to remember that this is just one of many ways that the Trump Administration is making life more difficult for asylum-seekers. Migrants have reported that Mexico is delaying or denying humanitarian visas under pressure from the U.S. government, and the Trump Administration’s “metering” policy, which limits the number of asylum-seekers allowed to enter the U.S. each day, has forced migrants to wait for weeks or months before exercising their right to claim asylum. Trump has made, and then walked back, threats to close the U.S.-Mexico border entirely.

What’s more, Axios and others report that Trump’s goal is to effect even more aggressive anti-immigration agenda following the purge of DHS. The plan includes accelerating deportations, finalizing the proposed public charge rule, renewing family separation, and making it more difficult for asylum-seekers to prove credible fear.

Trump administration proposed sending migrants to sanctuary cities 

According to a report from the Washington Post, the White House tried to pressure immigration officials to release migrants in sanctuary cities, where local authorities refuse to help Immigrations and Customs Enforcement (ICE) deport people who do not have immigration documents, on multiple occasions. Trump proudly claimed that this was his “sick” idea, aimed at political retribution. The notion that sending people seeking asylum to sanctuary cities would “punish” those cities is undergirded by stigmatizing portrayals that paint immigrants as not belonging, being violent or creating a drain on resources. In fact, mayors of sanctuary cities around the nation strongly affirmed that they would welcome asylum seekers with open arms.

House Democrats suing the Trump administration over the border wall

The U.S. House of Representatives lawsuit will join a number of others already filed against the Trump Administration over the extraordinary action taken of declaring a national emergency to build a wall at the U.S.-Mexico border. Speaker of the House, Nancy Pelosi, stated, “The President’s action clearly violates the Appropriations Clause [of the U.S. Constitution] by stealing from appropriated funds, an action that was not authorized by constitutional or statutory authority.”

Trump has repeatedly ignored the will of Congress, who clearly rejected appropriating the funds he wanted for a border wall, even passing a resolution (which Trump overrode) to block the declaration of a national emergency.

House Democrats subpoena for Barr and Ross over 2020 census citizenship question

The House Oversight committee voted to subpoena testimony and documents from Attorney General William Barr and Commerce Secretary Wilbur Ross about adding a citizenship question to the 2020 Census. The 2020 Census count would begin next year, April 1, 2020. Adding the citizenship question would likely result in a huge undercount in areas with high immigrant and Latinx populations, resulting in lost financial and political power.

In related news, the U.S. Supreme Court heard oral arguments in the case challenging the immigration-status question on April 23. Two federal courts have already ruled against the Trump Administration. However, early reports suggest that the Supreme Court is likely to allow the contested question to appear on the census next year.

Bank of America Is now the only big bank profiting from family separation

As PWN noted in last month’s policy update, two major banks — JP Morgan Chase and Wells Fargo — have stopped funding the private prison industry that helps prop up the Trump Administration’s immigrant detention machine. A report released this month shows how U.S. banks — including only one top-six bank, Bank of America — continue to finance private prisons that commit egregious human rights violations.

By profiting from private prisons, Wall Street enables and benefits from the Trump Administration’s mistreatment of migrant children and families.

Congressional Democrats introduce the NO BAN Act

This month, Democrats in the House and Senate announced a bill to repeal Trump’s Muslim ban, asylum ban, and refugee ban, H.R. 2214. The NO BAN Act would also make it more difficult for the executive branch to prohibit or restrict the entry of large groups of people, requiring the government  to show “credible facts” that the suspension from entry is connected to “specific acts.” Furthermore, the suspension must meet the strict scrutiny test, or that the suspension is a compelling government interest using the least restrictive means necessary to achieve its end. Finally, the bill would explicitly prohibit the executive branch from discriminating based on religion when introducing similar, future bans.

Economic Justice

Economic disaster relief package for Puerto Rico is at an impasse

The Senate failed to pass a disaster relief bill after negotiations broke down along party lines. Democrats insist on provisions like those that passed the House in January, including additional infrastructure aid to rebuild water-resiliency, support recovery efforts in Puerto Rico, and $703 million for nutritional and Medicaid assistance funds for Puerto Rico, Northern Marianas, Guam, and American Samoa.

The Senate Republicans’ bill would only fund Puerto Rico’s food stamp program, providing $600 million in nutrition assistance, and would not provide any disaster relief funds for Puerto Rico. Both versions failed and Trump lashed out, vocally opposing any more disaster relief to Puerto Rico in a series of factually incorrect posts on Twitter.

Senate Democrats introduce Working Families Tax Relief Act

Senators Sherrod Brown, Michael Bennet, Richard Durbin, and Ron Wyden introduced a tax reform bill that would substantially increase the Earned Income Tax Credit (EITC) for people who are and are not raising children as well as expand the Child Tax Credit (CTC).

Research has shown that the EITC and CTC increase employment, reduce poverty, and improve children’s’ life prospects. By expanding these tax credits, the bill promises to improve the economic security of 114 million people with low- and moderate-income, including an estimated 46 million households.

HHS to collect information on state-level paid family leave programs

HHS’s Office on Women’s Health (OWH) proposed in an information collection project titled, “State-Level Paid Family Leave Policy Project,” which will “explore the relationship between women’s health and state-level paid family leave (PFL) programs.” State PFL programs allow eligible employees to take paid time off of work to take care of sick family members or bond with a new child. OWH will have 16 focus groups in four states with PFL programs — California, New Jersey, New York, and Rhode Island — over a year to collect information about how PFL impacts new mothers’ health, health behaviors, and ability to fulfill their roles in the workplace, family and community. Public comments will be open until June 3, 2019.

LGBTQ Rights, Safety and Justice

Trans military ban goes into effect

The Trump Administration’s ban on transgender troops in the military went into effect on April 12. The ban’s impact is two-fold: it forces enlistees and service members to either serve under their sex assigned at birth or leave the military; and prohibits anyone diagnosed with gender dysphoria after April 12 from enlisting if they intend to or have transitioned. Service members with a formal diagnosis prior to April 12will be allowed to continue serving consistent with their gender identity. You can read PWN’s statement in opposition to the rule here.

The Equality Act moves forward in the House

On April 2, the full House Judiciary committee heard H.R. 5, which would amend existing federal civil rights non-discrimination law, prohibiting discrimination on the basis of sexual orientation and gender identity. This was a historic event: the first ever congressional hearing on the Equality Act. The bill has 240 co-sponsors and, if passed, would represent an important affirmation of the rights and dignity of the LGBTQ community in the face of the Trump Administration’s proliferation of harmful and dangerous anti-LGBTQ policies.

U.S. Supreme Court takes up the issue of discrimination based on sexual orientation and gender identity

This month, the Supreme Court announced that it will take up the issue of whether employers can legally discriminate against LGBT people in the workplace next fall. Title VII prohibits employment discrimination based on sex. The Court will decide whether sex discrimination includes discrimination based on sexual orientation and gender identity. In Price Waterhouse v. Hopkins (1989), the Supreme court held that discrimination based on sex-stereotypes — that is, how someone thinks a man or a woman should appear or behave — is a prohibited as a form of sex discrimination. Part of the question is whether discrimination based on transgender status fits under that holding.

Appeals court rules that there is no right to gender affirming health care in prison

In a divided decision, the Fifth Circuit held that it is not cruel and unusual punishment to deny people of trans experience gender-affirming surgery while incarcerated. According to this holding, prisons can constitutionally enact a blanket prohibition on providing, or even assessing the need for, transition-related surgery for people of trans experience who are incarcerated. The majority opinion misgenders and mis-names the plaintiff seeking treatment in this case, Vanessa Lynn Gibson, throughout.

HHS proposes changes to data collection that could harm LGBT youth

On April 19, HHS issued a proposed rule to amend the Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations. Under the proposed rule, HHS would stop collecting data on the sexual orientation of youth in foster care and adoptive and foster parents and guardians. This is yet another example of the Trump Administration narrowing access to information with the intent of undermining the rights and health of vulnerable populations. Removing information about sexual orientation makes it impossible to track and address the marginalization, harassment, and discrimination that LGBTQ youth and families often face in foster care. The public has until June 18 to comment on the proposed rule.

Voting and Civil Rights

Senate Democrats push to abolish the Electoral College

A group of Democratic Senators, including Brian Shultz (IL), Diane Feinstein (CA), and Kristen Gillibrand (NY), announced a plan to introduce a constitutional amendment to abolish the Electoral College, our current process for electing the President of the U.S. as enshrined in the Twelfth Amendment of the Constitution. It is nearly certain that the constitutional amendment will not pass the Republican-controlled Senate. However, if ratified, it would mean that the president would be elected through popular vote. The idea has gained traction in the wake of two recent elections — Bush’s 2000 election and Trump’s 2016 election — where both candidates lost the popular vote, yet won the presidency due to electoral college votes.

Senator Jeff Merkley (OR) is moving forward separately with his “We the People” Democracy Blueprint by introducing a package of election reforms bills that would include a constitutional amendment to abolish the electoral college and elect the president by popular vote.

The Department of Health and Human Services (HUD) sues Facebook over housing discrimination

HUD filed suit against Facebook for violating the Fair Housing Act by allowing advertisers to discriminate based on race, religion, family status, and other protected characteristics. In a 2017 expose, ProPublica revealed that Facebook advertisers could exclude certain groups from seeing housing ads, like African Americans, mothers of high school students, and Spanish-speakers. Moreover, HUD claims that the Facebook ad algorithm discriminates even when advertisers do not request it. Facebook says they have been making changes, and dispute that the ad algorithm is itself discriminatory. This case is unique for HUD under the Trump Administration, considering HUD has been scaling back enforcement of civil rights protections.  

Congress holds hearing about white nationalism and hate crimes

On April 9th, a House Judiciary subcommittee held a hearing on the rise of hate crimes and white nationalism in the U.S. Google and Facebook executives were present to answer questions about their role providing hate groups a social media platform to spread their messages. Prominent organizations, like the Anti-Defamation League and the Equal Justice Society, also participated in the hearing. A community letter from groups working with Muslim, South Asian, Sikh and Arab communities acknowledged the importance of the hearing, and called on Congress to work to hold hearings that center survivors; unequivocally reject white nationalism, white supremacy, Islamophobia, racism, and hate violence in all its forms; and comprehensively confront and address the proliferation of white supremacist and white nationalist hate violence.

2020 Presidential candidates disagree on voter enfranchisement for people who are incarcerated

In a town hall on April 22, the question of whether people who are incarcerated should be able to vote divided candidates. Senator Bernie Sanders clearly and unequivocally supports total enfranchisement of those who are incarcerated. In response to a question about whether people who committed heinous crimes should be allowed to vote, he said, “I think the right to vote is inherent to our democracy. Yes, even for terrible people. Because once you start chipping away…you’re running down a slippery slope.”

Mayor Pete Buttigieg rejected that position, arguing that people should be stripped of their constitutional right to vote while incarcerated. Other candidates, like Senators Kamala Harris and Elizabeth Warren, hedged their answers and took no definitive stance.

State Updates

Arizona

This month, state lawmakers repealed Arizona’s anti-LGBTQ health education law, prohibiting schools from teaching HIV-related information that “promotes a homosexual lifestyle,” “suggests that some methods of sex are safe methods of homosexual sex,” or “portrays homosexuality as a positive alternative lifestyle” — a so-called “no promo homo” law. Now, teachers may provide students with medically accurate, age-appropriate information about LGBTQ people and HIV.

Illinois

The state Department of Healthcare and Family Services announced that the Illinois Medicaid program will begin covering gender affirming surgeries. Under the proposed rule, Medicaid enrollees ages 21 and older who have been diagnosed with gender dysphoria will be eligible for transition-related surgeries. The proposed coverage change is currently open for public comment, and coverage will likely start in the summer. If approved, Illinois would join 17 states and the District of Columbia in guaranteeing Medicaid coverage for gender affirming surgery.

Kansas

The Kansas Supreme Court held that the state Constitution robustly protects the right to abortion. Courts in the state now must apply “strict scrutiny,” the highest, most probing standard of review in U.S. jurisprudence, to abortion restrictions. Basically, any abortion restriction passed in the state is presumed unconstitutional, and can only be found constitutional if it serves a compelling state interest and is narrowly tailored to further that interest. This landmark decision means that abortion will remain constitutionally protected in Kansas even ifRoe v. Wade, the federal case that established the fundamental right to an abortion in the U.S.,is overturned or chipped away by the U.S. Supreme Court. 

Maryland

Maryland is the sixth state to raise their minimum wage to $15 per hour. State lawmakers overrode Republican Governor Larry Hogan’s veto to incrementally increase the wage floor to $15 by 2025 (for business with more than 15 employees) and eliminate the sub-minimum wage for tipped workers. This change is expected to benefit 573,000 low-wage workers in the state, or a little less than one in four Maryland workers.  

New Mexico

Governor Michelle Lujan Grisham signed a bill into law that removes criminal penalties for low-level marijuana and paraphernalia possession, making New Mexico the 24th state to decriminalize marijuana. The law stops short of legalization, and low-level possession can result in a civil violation (like a traffic ticket). A bill to legalize recreational marijuana did pass the state House this year, but failed in the Senate.

Nevada

Nevada is now the 10th state in the nation to offer gender neutral markings on driver’s licenses and state ID cards. Residents can chose “M,” “F,” or “X” on the gender line. No additional documents, like a court order, amended birth certificate, or doctor’s statement, are required to change one’s gender on state IDs.

Utah

Despite numerous setbacks in court, the Trump Administration is still approving controversial Medicaid work requirement waivers. HHS approved a Section 1115 waiver to change the Utah Medicaid program late last month. The waiver includes a partial Medicaid expansion for people at or below 100% of the federal poverty line. This partial expansion is especially shocking because it contravenes what Utah voters explicitly called for. In November 2019, Utah voters approved expanding state Medicaid to cover people living at or below 138% of the federal poverty line.

Nevertheless, the governor signed legislation overriding the express demands of the public. The waiver also includes other restrictive provisions like enrollment caps, which place an arbitrary limit on how many people can receive Medicaid, and work requirements.