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Federal Updates

Administration Updates

Budget deal reached

The longest partial government shutdown in U.S. history ended on Friday, January 25, after Congress passed a three-week continuing resolution to reopen the government. This month, Congress agreed on a longer-term spending deal, which Trump signed into law on February 15. The deal will keep the government open for six more months, until the end of the next fiscal year on September 30.

The spending deal did not include the reauthorization of the Violence Against Women Act or an extension for the Temporary Assistance for Needy Families (TANF) funding (in place until June 30). It did, however, give the Trump administration $1.375 billion for a border wall and more money to fund his racist and dangerous deportation forces. Immigration advocates have argued that Immigration and Customs Enforcement (ICE) should be defunded; instead, the spending bill guarantees that ICE will be able to keep about 45,000 people in detention over the next half-year with no cap on the maximum number of people that can be detained.

State of Emergency

After signing the budget deal, Trump declared a state of emergency at the U.S. border with Mexico in an attempt to divert billions of taxpayer dollars that Congress did not authorize to fund a border wall. Although Trump has alleged that these funds are needed to stop an “invasion” at the U.S.-Mexico border, this claim is belied by facts and Trump’s own admission.

The number of people crossing the border without authorization has been declining and only a small percentage of illegal drugs enter the U.S. in between legal ports of entry. Trump himself admitted that the state of emergency was not necessary: “I don’t need to do this, but I’d rather do it much faster… I just want to get it done faster, that’s all.”

The declaration of a State of Emergency is widely seen as an unconstitutional abuse of executive power. At least 16 states have joined a lawsuit challenging the declaration of a national emergency at the U.S. border, and the House passed a resolution to block it legislatively by a vote of 245-182. The resolution also has a decent chance of passing the Senate, where it would need only 51 votes. Trump is expected to veto the resolution if it lands on his desk.

William Barr confirmed as Attorney General

On Valentine’s Day, William Barr was confirmed as Attorney General of the United States. As PWN-USA has previously reported, he has shown no love to immigrant communities, people convicted of crimes, or people living with HIV. Barr is known for his expansive view of executive power and has criticized the Mueller investigation into Russian meddling in the 2016 presidential election. The confirmation vote was 54-45, primarily along party lines.

Trump has nominated Jeffrey Rosen, the current deputy transportation secretary, as Barr’s second-in-command, i.e. the deputy attorney general. Rosen would replace Rod Rosenstein, who is stepping down after facing frequent anger from Trump over the Mueller probe. If he is confirmed, the two top officials in the justice department — Barr and Rosen — will have exactly zero years of prosecutorial experience between them.

Dangerous judicial nominee to the second most important court in the U.S.

Neomi Rao, the current Administrator of the Office of Information and Regulatory Affairs (OIRA), has been tapped by Trump to take Supreme Court Justice Brett Kavanaugh’s former seat on the D.C. Circuit Court. As head of the OIRA, she has signed off on policies that would eviscerate protections for communities of color, women, LGBTQ people, and sexual assault survivors. Rao also finalized rules that empower medical providers to use religious objections to deny patients treatment, which could detrimentally impact LGBTQ people and those seeking reproductive health care.

Economic Justice & the Social Safety Net

Proposed rule will undermine access to SNAP

The Trump administration has issued a proposed rule that would make it harder for under- and unemployed Supplemental Nutrition Assistance Program (SNAP) recipients to remain on the program. According to the administration’s own estimates, the rule could take food assistance away from nearly 755,000 adults, cutting SNAP benefits by $7.5 billion over 5 years. This would slash the nation’s largest food assistance program, exacerbating hunger and poverty across the states.

The SNAP program already requires that most applicants work in order to qualify for benefits. Under current practice, people ages 18 to 49 who are both 1) unemployed and 2) not raising a minor are only eligible for three total months of SNAP benefits within a three-year period. However, states can seek waivers to temporarily lift the three-month cut off on the basis that jobs are not widely available, for example in states with a high unemployment rate. The proposed rule would modify some of the exemptions and waiver criteria to encourage broader implementation of the SNAP work requirement.

CLASP reports that the proposed changes would have particularly damaging consequences for immigrants and their families, who are already less likely to seek nutrition assistance for fear of immigration consequences. The comment period closes April 2, 2019.

Proposed rule to strip social security benefits from non-English speakers

The Social Security Administration (SSA) announced a proposed rule that could prevent people with limited or no English proficiency from getting disability or social security benefits. The rule proposes to remove “inability to communicate in English” from the list of educational categories that are considered when Social Security Administration judges decide who can receive Supplemental Security Income (SSI) and Social Security Disability (SSDI).

Basically, it is a crass attempt to deny benefits for non-English speakers with clear anti-immigrant undertones. According to the Social Security Administration’s estimates, a total of 10,500 claims could be impacted per year. The comment period is open until April 2, 2019.

Universal child care plan announced

As part of her Presidential campaign platform, Senator Elizabeth Warren (D-MA) has announced a plan to ensure affordable child care for all Americans. People in the U.S. tend to pay more for lower quality child care compared to other nations. Warren’s plan would tackle that problem by creating a network of child care facilities, subsidized and regulated by the federal government and paid for with a tax on “ultra-millionaires.”

The universal child care plan is the first of its kind. Any family earning less than 200% of the federal poverty line would not pay for child care, and families earning more would contribute no more than 7% of their income, which is less than what most families pay now.

U.S. Supreme Court extends constitutional ban on excessive fines to the states

The Eighth Amendment prohibits the federal government from imposing excessive fines. In Timbs v. Indiana, the Supreme Court said that the prohibition extends to the states as well. The ruling could have  significant economic and racial justice implications. State and local governments have imposed court fines, fees and civil asset forfeiture that grossly exceed the initial fine in order to raise revenue. The practice has disproportionately impacted people of color and people who have low-incomes, pushing them into deep legal and financial trouble, often for minor infractions. Because of the Timbs ruling, the constitutionality of this state and local practice is now in question.

Health Care Access

Department of Health and Human Services releases End the HIV Epidemic Plan

In the State of the Union, Trump pledged to end the HIV epidemic in the U.S. by 2030. Soon after, the Department of Health and Human Services (HHS) released, and HHS Secretary Alex Azar described, its Ending the HIV Epidemic (ETE) Plan. HHS’s ultimate goal is to reduce the rate of HIV by 90 percent over the next ten years, and the Department intends to do so by targeting 48 specific counties, 7 states, the District of Columbia, and San Juan, Puerto Rico, with increased investment in local prevention and treatment efforts.

The goal is laudable, and achievable with the proper policies to ensure all people living with HIV have their rights protected and access to the mental, emotional, and physical health care related services, support, and information that they need. However, the Trump administration’s policies have explicitly undermined ETE plan goals. Under this administration, the health care environment has been rapidly getting worse for those communities most impacted by HIV including LGBTQ, immigrant, and low-income communities. (For further reading, the Center for Budget and Policy Priorities has created a helpful roundup of the administration’s efforts to undermine the Affordable Care Act.)

What’s more, it is unclear how the administration plans to protect sensitive data on which the plan relies, such as data generated through molecular HIV surveillance (MHS), a method of collecting, reporting, and analyzing genetic sequences generated through HIV drug resistance testing. Networks of people living with HIV and human rights advocates have expressed serious concern that MHS could be used to target vulnerable communities and to open the door to prosecution on the basis of HIV positive status.

“Everybody in, nobody out”: House unveils Medicare of All Act of 2019

Wednesday, February 27, Representative Pramila Jayapal (D-WA-7) introduced the Medicare for All Act of 2019, a bold and transformative plan for creating a health care system that leaves no one behind. The plan would create a government-run, universal Medicare program that covers all U.S. residents. It would replace all private and employer insurance, with only two other public health care systems continuing to operate: Veterans Affairs and Indian Health Services.

The bill has 107 co-sponsors in the House and includes one of the most robust and comprehensive benefits of any single-payer health plan, in the U.S. and around the world. Jayapal’s bill would cover primary care, hospital visits, reproductive health care (including abortion services), maternity care, rehabilitative services, medical devices, long-term care, dental, and vision without out-of-pocket costs. Prescription drugs are the only benefit that would include some cost-sharing.

The Medicare for All Act of 2019 is ambitious in scope and speed. Residents would transition into the program over a two-year time frame. The bill does not explicitly address how the government would pay for this plan, though that is not unusual at this stage. Generally speaking, a single-payer system would reduce the enormous administrative costs and inefficiencies of our current health system, and Jayapal has suggested supporting a higher tax rate for those with very high-incomes and/or employer contributions.

House of Representatives is making progress in health care legislation

The House Subcommittee on Health of the Committee on Energy and Commerce held a legislative hearing on several proposals to reverse recent regulatory changes to the Affordable Care Act (ACA). The subcommittee reviewed three bills, HR 968, HR 1010 and HR 1143, designed to reverse the Trump administration’s attempts to expand short-term limited-duration insurance plans, otherwise known as “junk health plans” because they can skirt important protections put in place by the ACA, such as the requirement that plans cover pre-existing conditions. The hearing also examined the MORE Health Education Act, HR 987, which would restore essential funding for targeted marketing and outreach to inform and promote enrollment into the ACA marketplace.

Trump Administration sues to stop safe consumption sites

The Justice Department filed a lawsuit in federal court to stop a safer consumption site from opening in Philadelphia, Pennsylvania. Such sites support access to sterile needles, offer HIV and Hepatitis C testing, reduce transmission of infectious disease, reduce overdose deaths, and provide linkages to treatment for those who want it. They are a proven harm reduction technique that prioritizes the safety, rights, and dignity of people who use drugs.

Before the Trump administration stepped in, the Philadelphia facility would have been the first safer consumption site operating openly in the U.S. This suit is radically at odds with Trump’s proposed commitment to prioritize ending the HIV epidemic.

Reproductive Rights, Health, and Justice

Abortion access in Louisiana

On February 7, the U.S. Supreme Court granted a request in June Medical Services LLC v. Gee to temporarily stop a Louisiana law that could have forced all but one abortion providers in the state to close. The Louisiana law would require doctors who perform abortion in the state to have active admitting privileges at a hospital within 30 miles of the clinic where they provide abortion care. The law is virtually identical to a Texas law that the Supreme Court struck down as unconstitutional in 2016 in Whole Woman’s Health v. Hellerstedt. Next, the abortion providers must file a petition, due mid-April, to ask the Supreme Court to review an adverse ruling from the 5th Circuit.

Global Health, Empowerment, and Rights (HER) Act introduced

Senator Jeanne Shaheen (D-NH) and Congresswoman Nita Lowey (D-NY) introduced the Global HER Act, which would permanently end Trump’s extended Global Gag rule, otherwise known as the Mexico City Policy. The Global Gag rule prohibits non-U.S. nongovernmental organizations (NGOs) who receive U.S. global family planning funds from using that money or their own non-U.S. funds to provide, counsel patients about, or refer patients to safe abortion services.

Trump extended those dangerous restrictions to all U.S. global health assistance, including funding for maternal and child health, nutrition, HIV/AIDS, infectious disease, and even water, sanitation, and hygiene programs. The Global HER Act would prioritize women’s health by removing restrictions on the receipt of U.S. foreign assistance and allowing non-U.S. NGOs to use non-U.S. funds to counsel for and provide safe, legal abortions. The bill has significant support, with endorsements from over 100, diverse organizations.

Draft of Title X Domestic Gag Final Rule is released

On February 22, the Department of Health and Human Services (HHS) posted a draft of the final rule for the Title X family planning program, which is a domestic version of the restrictions on abortion referrals and related services described above. According to the draft, the final rule appears designed to make it more difficult for Title X providers to deliver otherwise permissible family planning services, even with non-Title X funds. The rule would eliminate the requirement that Title X providers counsel patients about all of their pregnancy related options and will prohibit providers from referring patients to abortion services or otherwise taking “any other affirmative action to assist a patient to secure an abortion.” Under such a rule, Title X funded programs and providers could refuse to offer a broad range of FDA-approved contraceptive methods. Further, Title X providers would be pressured to involve parents in family planning decisions.

Ultimately, the rule threatens to devastate the Title X program. Women of color, young people, and people with limited English language proficiency rely on the program, and it is the only federally funded program dedicated to ensuring that low-income people are able to access essential sexual and reproductive health services and information. Despite hundreds of thousands of comments opposing the proposed rule At least one suit has already been filed against HHS, seeking to stop the rule from going into effect both temporarily and permanently.

State and federal anti-abortion legislation gains steam

There have been a number of attacks on abortion rights this month. In the wake of Trump’s stigmatizing and inaccurate comments about abortion later in pregnancy and New York’s Reproductive Health Act during the state of the union, Senator Mitch McConnell tried and failed to force a vote on S.311, which attempts to create criminal penalties if a health care provider doesn’t deliver an adequate standard of care if a child is “born alive” after an “failed abortion.” But protections are already in place for that extraordinary unlikely scenario. In reality, the bill aims to vilify abortion later in pregnancy.

Additionally, states across the nation have introduced or otherwise advanced anti-choice legislation. Arkansas’s SB 149 was signed into law. It is a “trigger law” that would ban and criminalize abortion services anywhere in the state if Roe v. Wade is overturned. Similar trigger laws have been introduced in Missouri (SB 345), Tennessee (HB 1029/SB 1257) and passed in the Kentucky House of Representative (HB 148) this month. A 20-week abortion ban was introduced in Illinois (HB 2058) and a 13-week abortion ban was introduced in North Carolina (H 28).

Legislators in at least four states — Maryland (HB 933/HB 978), Texas (HB 1500), Kentucky (SB 9), and Mississippi (HB 732/SB 2116) — are trying to advance so-called “heartbeat bans,” which ban abortion once a fetal heartbeat can be detected, often well before the pregnant person is aware of the pregnancy.

An array of other Targeted Restrictions on Abortion Providers (or “TRAP” laws) have been introduced. Maryland’s HB 1193 would require abortion facilities to meet the same standards as ambulatory surgical facilities. Lawmakers in the state have also proposed creating a 24-hour waiting period (HB 1151) and requiring providers to obtain parental, guardian, or judicial consent before performing an abortion on someone under 18 years old (HB 964).

In Illinois, lawmakers have introduced a bill that would force abortion providers to offer patients an ultrasounds (HB 2294) and prohibit any state funding for abortion services, except in the case of medical emergency (HB 2286).

States are trying to improve access to birth control

Bills advancing in the California and Washington state legislatures would guarantee insurance coverage for a 12-month supply of birth control, including FDA-approved hormonal pills, patches and rings. In both states, publicly funded programs already cover year-long supplies of contraceptives. Now, under California’s SB 999 and Washington’s HB 2465, private insurers would be required to do so as well.

These changes could have a significant impact on residents’ reproductive freedom. According to a 2011 study in California, rates of unintended pregnancy declined significantly when participants received a year-long supply of contraception, rather than the standard one- to three-month supply. Passing these bills would bring the states closer in line with the Model Contraceptive Equity Act.

LGBT Rights

Trump administration wants to legalize discrimination against LGBTQ foster and adoptive parents

The Department of Health and Human Services’ (HHS) 2020 draft budget request is likely to ask for broad authority to add faith-based foster-care and adoption groups into federally-funded child welfare program, in an effort to expand the use of religious refusals to privilege religious conservatism over the rights and health of women and LGBTQ people.

Trump has also indicated that his administration would work towards ensuring that faith-based adoption agencies could receive federal funding even if they would discriminate against same-sex couple. Additionally, HHS granted South Carolina’s request to allow faith-based welfare agencies to turn away otherwise qualified foster or adoptive parents because they don’t align with their religious beliefs.

Unconstitutional bills in the states would prohibit same sex marriage

In 2015, the Supreme Court of the United States ruled that same sex couples have the same constitutionally-protected right to marry as different sex couples. Now, lawmakers in North Carolina, Tennessee and Kansas are trying to re-open the marriage equality fight by introducing legislation that would ban same-sex marriage statewide.

If passed, these bills would clearly be unconstitutional under current Supreme Court precedent. Nevertheless, such tactics are concerning in light of the decisively conservative shift of the Supreme Court after Brett Kavanaugh replaced former Justice Anthony Kennedy, a key swing vote on the same-sex marriage case and LGBT rights more generally.

Wave of anti-trans legislation in state legislatures

A number of bills have been introduced in state legislatures that endanger the rights and safety of people of trans experience. In Missouri, a state representative introduced HB 797, which would require all public restrooms to be divided by gender (unless they are single occupancy) and prohibit cities or local business from enacting any conflicting policy, like a gender neutral bathroom policy.

In Tennessee, two sets of bills — HB 1274/SB 1499 and HB 1151/SB 1297 — would make it harder for people of trans experience to use bathrooms that match their gender identity. The first set would empower the attorney general to defend a local education agency whose policy requires students to use restrooms, locker rooms or other facilities based on sex at birth. The second set would expand the definition of “indecent exposure” to include using certain, single-sex public accommodations if the person is not the sex that the room is designated for, which puts people of trans experience at risk of prosecution for using bathroom or locker rooms that match their gender identity.

In positive news, a harmful South Dakota bill, HB 1108, failed to pass this month. The bill would have prohibited public schools from teaching students between kindergarten and seventh grade about “gender dysphoria,” effectively preventing school officials from offering necessary support to students who have felt stigmatized, alienated or bullied because of their sexual orientation or gender identity.

Discrimination based on HIV status

On February 15, a federal judge temporarily stopped the Trump administration from forcing two people living with HIV out of the Air Force. Both men started antiretroviral treatment after learning of their status during an Air Force screening. They achieved undetectable viral loads and were deemed fit to deploy by their doctors and commanders. Nevertheless, the Pentagon discharged both men in November, claiming that they are unfit to serve in the military because people with HIV are banned from deploying to the Middle East.

The airmen challenged that decision in court, arguing that the ban is unconstitutional and inconsistent with current medical knowledge. The judge temporarily stopped their discharge and chastised the government for providing “no evidence, whether anecdotal or otherwise, of the effect of HIV on a servicemember’s medical fitness or the military’s readiness.”

State Updates

Arkansas

The state Supreme Court struck down a local ordinance that would have protected LGBTQ people from discrimination based on sexual orientation or gender identity. In 2015 (and, not coincidentally, in the wake of the Supreme Court’s decision holding that gay marriage is protected by the Constitution), Arkansas enacted Act 137, a law to prevent cities and counties from enacting non-discrimination protections that aren’t covered by state law. In Arkansas, sexual orientation and gender identity are not protected. The City of Fayetteville, which was attempting to enact the local LGBTQ protections, argued that Act 137 is unconstitutional. The Court held that the local non-discrimination ordinance is void because it violates state law. It declined to address the question of Act 137’s constitutionality.

California

Two exciting bills made progress in the California legislature this month. Representative Scott Wiener introduced Senate Bill 233, which would 1) allow sex workers to report certain serious or violent crimes without fear of arrest and criminalization and 2) clarify that police cannot rely on possession of condoms to establish probable cause for a sex work offense.

Currently, sex workers are victims of violent crimes at disproportionately high rates, and treating condoms as evidence exacerbates vulnerability while working. The Wiener bill helps address these two issues. In addition, Assembly Bill 45, which was introduced in December, had its first legislative hearing this month. The bill would advance health care access in California jails and prisons by eliminating medical and dental copays.

Colorado

A bill, HB 19-1032, to ban abstinence-only sexual health education in Colorado public schools passed the state House. The bill would provide an extra $1 million in school funding, prioritizes grants to rural schools that have been unable to offer sexual health education, and requires that public schools that offer such courses, provide a comprehensive curriculum that includes information on consent, safe sex, and sexual orientation. If this bill passes, Colorado would become the ninth state in the nation to require that consent be taught in sexual health education courses.

Florida

A bill in the Florida senate, SB 540, would create a registry, the “Soliciting for Prostitution Registry,” to track those found guilty of “soliciting, inducing, enticing, or procuring” another to commit “prostitution, lewdness, or assignation.” Such registries increase stigma against sex workers and could have long-term implications for those on them, including future employment discrimination, increased violence, and custody problems. The bill would also require public lodging establishments to train employees to spot “human trafficking.” Such trainings often conflate sex work, which occurs between consenting adults, and trafficking, which involves force, fraud, coercion, or a minor.

Meanwhile, a bill that would modernize the state’s HIV criminalization laws, HB 79, easily passed out of its first committee — the Criminal Justice Subcommittee — with a 10-3 vote. Advocates in the Florida HIV Justice Coalition, including PWN members and staff, continue to educate lawmakers. 

Georgia

A bill, HB 188, was introduced this month to help address the state’s maternal mortality, sexual, and reproductive health crisis by ending the grant program that give 2 million dollars to “crisis pregnancy centers” (CPCs). These clinic are unregulated, often offer limited or no medical services, and have been known to give patients misleading or medically inaccurate information about abortion care.

Indiana

A state HIV modernization bill, HB 1325, is quickly making its way through the Indiana legislature. The bill would refine and modernize some sections of the public health and criminal codes. It removes stigmatizing and outdated language and the counterproductive State Health Department reporting requirements. The bill also removes criminal penalties for people living with HIV who try to donate blood products or use artificial insemination services. The bill unanimously passed the state House, and now heads to the Senate. This bill represents progress, but it is not perfect. It does not repeal harmful disclosure requirements or two sentence enhancement laws that apply to people living with HIV and Hepatitis.

Iowa

At least one highly-restrictive abortion law has been stopped in its tracks. Last month an Iowa state court held a so-called “fetal heartbeat law,” unconstitutional. The law would have banned abortions once a fetal heartbeat can be detected — generally about 6 weeks into pregnancy, often before the person knows they are pregnant. Republican Governor Kim Reynolds has said she will not appeal the ruling, meaning the law will be permanently blocked in the state.

Tennessee

Republican lawmakers introduced a flurry of bad bills in February. In addition to the anti-abortion measures mentioned above, lawmakers have introduced four anti-LGBT bills, HB 836, HB 1152, SB 848, SB 1304. These bills use religious and moral refusals as a guise to allow adoption and foster placement agencies to discriminate in, or refuse, the services they offer to LGBTQ families and children.

There are also dangerous new pregnancy criminalization bills in the House and Senate. HB 1168 and SB 659 would allow prosecutors to charge people with assault if they illegally use a narcotic while pregnant and the “child is born addicted to or harmed by the narcotic drug and the addiction or harm is a result of [the person’s] illegal use of a narcotic drug while pregnant.” Policing pregnant people who use drugs impedes access to essential health care and violates international human rights standards.