Federal Updates
Supreme Court
Senate Judiciary Committee Moves Brett Kavanaugh’s Confirmation Forward to the Full Senate
September 28, the Senate Judiciary Committee voted to advance Brett Kavanaugh’s Supreme Court nomination to the full Senate. The 11-10 vote split along party lines, with some Democratic committee members walking out or remaining silent in protest.
The vote came just one day after Dr. Christine Blasey Ford, one of three women who have come forward accusing the nominee of sexual assault, testified before the committee. When confronted with the allegations, Judge Kavanaugh responded at times with anger and accusations of partisanship. The FBI has re-opened its background investigation on Kavanaugh, which President Trump has ordered to be “limited in scope and completed in less than a week.” The Supreme Court opened its new term October 1, and the Senate vote is expected this week.
Kavanaugh, a far-right conservative, has expressed opposition to the Affordable Care Act (ACA), workers’ rights, and limitations on executive power. He has voted to uphold religious refusal laws, which could limit protections 1) for contraceptive and abortion-access and 2) from discrimination based on sexual orientation, and against access to safe and legal abortion care.
His confirmation would shift the Supreme Court to the right and would jeopardize reproductive, LBGTQ, civil, and workers’ rights. Women’s rights, civil rights, and reproductive health, rights, and justice organizations have openly opposed Judge Kavanaugh’s nomination to the nation’s highest court.
PWN-USA opposes Kavanaugh’s nomination. You can take action to #STOPKAVANAUGH here.
Federal Budget
Congress Avoids Government Shutdown, for Now
September 28, Trump signed a spending bill into law to temporarily avert a government shutdown days before the federal government’s funding was set to expire. The bill is a “minibus,” addressing some but not all of the 12 appropriation bills that must pass through the Senate and House annually before the new fiscal year begins on October 1.
It fully funds the Defense, Education, Labor, and Health and Human Services departments for fiscal year 2019 and includes a continuing resolution to fund departments through December 8. The bill also includes an almost $20 billion increase in defense spending and delays dealing with a number of contentious issues, such as President Trump’s border wall funding, until after the mid-term elections.
Trump Administration Transfers Funds to Pay for Detention of Migrant Children
September 20, news sources published a letter from Health and Human Services (HHS) Secretary, Alex Azar. The letter details his intent to use his discretionary transfer authority to shift up to $186 million of HHS funding from the current fiscal year to the Unaccompanied Alien Children (UAC) program in the Office of Refugee Resettlement, which pays for the detention of migrant children who have crossed the US-Mexico border.
The money would be taken from a number of programs, including $5.7 million from the Ryan White HIV/AIDS program, which provides medical care and support for PLHIV, $6.3 million from the Substance Abuse and Mental Services Administration, and $16.7 million from the CDC, including from HIV, STI, TB and viral hepatitis-specific programs.
In related news, on September 11, the office of Senator Merkley (D-OR) released documents showing that the Department of Homeland Security transferred more than $200 million, including $10 million from the Federal Emergency Management Agency (FEMA), to Immigration and Customs Enforcement (ICE) to pay for immigrant detention and removal. According to the New York Times, the funds were diverted from FEMA, which provides on-the-ground support for disaster response and recovery efforts, at the start of hurricane season in June.
Senate Passes Bipartisan Opioid Crisis Response Act of 2018
September 17, the U.S. Senate passed a package of bills in a 99 to 1 vote that aims to combat the opioid epidemic. The legislation will authorize nearly $8 billion in federal funding to support new research; provide grants for prevention, treatment, and recovery programs; expand Medicaid and Medicare coverage for opioid treatment services; and increase detection and seizure of drugs like fentanyl.
The Senate and House, which passed a similar package of bills in June, must reconcile the two versions before the package can be signed into law.
Immigrant Justice
Trump Administration Releases Long Anticipated Proposed Public Charge Rule
Saturday, September 22, the Department of Homeland Security (DHS) released a draft of a proposed rule that could deny permanent resident status (“green cards”) or entry to the U.S. to immigrants who use or are deemed likely to use essential social safety net programs, including Medicaid, nutrition programs and housing assistance. Living with a health condition requiring “extensive treatment” without non-subsidized health insurance would also be a “heavily weighted negative factor” in evaluating residency eligibility.
The proposed rule is a draft and has not yet been published in the Federal Register. Once it is officially published, the public will have 60 days to comment. The rule, if finalized, will primarily affect those applying through family-based visas and does not address deportations. However, DHS said it intends to issue a companion regulation that does.
The changes risk causing a significant decline in participation in Medicaid and other essential safety net programs among immigrant families, even those who are not subject to the rule.
PWN-USA is co-hosting a webinar today at 2pm ET to discuss what the new “public charge” rule would mean for the HIV community; the recording will be available later on our website here.
Refugee Resettlement Capped at an All-time Low
September 17, the Trump administration announced that it will cap the number of refugees that can be resettled in the U.S. at 30,000, a record low for the program since it was created in 1980. This cap is about a 70 percent reduction of the refugee cap put in place when Trump took office and a one-third reduction from the current cap of 45,000.
Trump Administration Seeks to Terminate Flores Consent Decree
September 6, the Trump administration issued proposed rules that withdraw from the Flores consent decree, a court agreement that has guaranteed protections for unaccompanied immigrant children since 1997. Currently, the government is prohibited from detaining migrant children for more than 20 days and is required to hold them in facilities that are licensed as state-approved day care centers.
The Trump administration has blamed the Flores consent decree for forcing them to adopt a policy of “zero tolerance” and family separation at the U.S.-Mexico border. The proposed rule would permit migrant families to be indefinitely detained until immigration proceedings end and would give the government broad discretion to certify its own detention facilities through a “self-licensing” scheme.
Even with Flores in place, the Trump administration has failed to protect children in federal detention and the number of migrant children being held in detention is at a record high, increasing to 12,800 as of September 12, more than fivefold since May 2017.
Moreover, on September 11, the Trump administration announced that it would more than triple the size of a temporary “tent city” in Texas, to hold up to 3,800 children. Removing the Flores protections risks allowing the long-term imprisonment of migrant children in unregulated, unsafe, or unhealthy facilities without schooling. The public comment period for the proposed rule will end on November 6.
Health Care Access
Groups File Suit to Block New Short-Term, Limited-Duration Insurance Plan Regulations
September 14, a number of groups, including AIDS United and the National Partnership for Women & Families, filed suit in a Washington, D.C., federal court to challenge one of the Trump administration’s attempts to undermine the Affordable Care Act (ACA). On August 1, the administration issued a final rule to expand access to so-called “short-term,” “limited-duration” insurance plans.
The rule essentially renders “short-term” and “limited-duration” meaningless by extending the duration of the plans from three months to almost a year and allowing insurers to renew coverage for up to three years.
The plans are a dangerous substitute for more comprehensive and standard health care coverage. “Short-term” plans are exempt from core ACA protections: insurers can charge higher premiums or deny coverage for pre-existing conditions, choose not to cover or require out-of-pocket cost-sharing for essential health benefits, and impose annual or lifetime coverage limits.
Moreover, “short-term” plans threaten the long-term viability of the ACA marketplace. Because these plans can be much less expensive than ACA-compliant coverage, they risk drawing healthier, younger people out of the ACA marketplace and driving up prices for those who remain.
Health Organizations Challenge Drug Pricing Regulations in Court
September 11, the American Hospital Association and six other health organizations filed suit in a Washington, D.C., federal court to challenge the Trump Administration’s failure to implement drug pricing transparency regulations. The regulations would require drug companies to disclose the ceiling prices they could charge certain providers for outpatient drugs and contain protections against overcharging those who participate in the federal drug discount program.
HHS has delayed the implementation of the final regulations five times since January 2017. Plaintiffs asked the court to declare the delay unlawful and order HHS to implement the regulations within 30 days.
Oral Arguments Begin in Texas v. United States
September 5, a Texas federal court judge heard oral arguments in Texas v. United States, which challenges the constitutionality of the ACA. Judge Reed O’Connor must rule on a preliminary injunction, which could block some or all of the ACA.
The ACA is vital to health care access in the U.S., and striking it down could have catastrophic consequences, including up to 20 million people losing health insurance; loss of protections against discrimination based on preexisting health conditions; loss of essential health benefits, which insure that patients have access to essential health care services without paying out of pocket; and states losing trillions of dollars in federal funding.
The Texas attorney general, along with 17 other state attorneys general, two governors, and two plaintiffs, argued that Congress rendered the entire law unconstitutional when it removed the individual mandate, a requirement that all people have health insurance or pay a penalty. Prominent legal scholars, including some who oppose the ACA, agree that argument is wrong.
The Trump administration refuses to defend the ACA and is instead arguing that protections for people with preexisting conditions should be struck down. In addition to the 17 state attorneys general who have stepped in to defend the ACA, a number of organizations, including PWN-USA, have voiced their support for the constitutionality of the important health care law by filing an amicus brief.
Medicaid Waivers Wreak Havoc
Arkansas is one of four states whose Medicaid work requirement was approved by the Centers for Medicaid and Medicare Services (CMS). The requirement is being phased in, and currently impacts only people ages 30 to 49. Enrollees must work or do some other qualifying activity 80 hours per month, and report work activities in order to qualify for Medicaid. If enrollees fail to report activities that would satisfy the requirement for three months, they are at risk of losing coverage.
As of September 9, over 4,000 people lost coverage for the rest of 2018 due to failure to satisfy work and reporting requirements, and 5,076 are at risk of losing coverage if they fail to report qualifying work activities next month. A lawsuit challenging the work requirement as counter to Medicaid’s objectives was filed in a Washington, D.C., federal court in August.
Federal comment periods have closed in Tennessee and South Dakota for proposed changes to their Medicaid programs: excluding abortion providers and adding work requirements, respectively. South Carolina’s comment period is still open. The state proposes to exclude family planning providers that do not provide a full range of primary care services.
Gender Justice
Congress Extends the Deadline for Violence Against Women Act Reauthorization
The Violence Against Women Act (VAWA), which was set to expire on September 30, was extended through a continuing resolution, a stopgap that ensures funding to keep the government open and the law in effect through December 7.
VAWA aims to address sexual assault, stalking, dating violence, and domestic violence by providing grants to organizations and law enforcement programs that work with survivors and on prevention. Instead of passing a long-term extension of the law, Congress has effectively kicked the can forward until after the midterm elections.
A bill to reauthorize VAWA, expand housing protections for survivors, and provide grants for alternative justice mechanisms was introduced to the House of Representatives in late July. It is currently in the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.
Sexual and Reproductive Health and Rights
HHS Awards Title X Grants Without a Domestic Gag Rule, but with a Caveat
September 1, HHS awarded Title X grantees their contracts with a radically shortened funding period of seven months, instead of the normal three-year funding cycle. This change comes in the wake of the Trump administration’s proposed Title X domestic gag rule, which would limit Title X patients’ access to comprehensive reproductive health care services and information.
The proposed rule has not been finalized. There is significant concern among reproductive health care advocates that the grant period has been shortened so that the Trump administration can implement the proposed changes to the Title X program more quickly.
Criminalization
Justice for Sanjay Johnson
An HIV criminalization case has garnered national attention. Sanjay Johnson is a 25-year-old gay Black man and incredible artist from Little Rock, Arkansas, facing HIV criminalization exposure charges since August 2017. He was accused of transmitting HIV after a consensual sexual encounter, even though labs show that he has an undetectable viral load within a week of the encounter. His accuser said he did not want to see him to go jail. Sanjay is awaiting trial. You can help by contributing to Sanjay’s Defense Fund.
LGBT Rights
State Department Changes Passport Gender Markers Language from Website
Language about the process for changing gender markers on U.S. passports was altered or removed from the State Department’s website in mid-September. The changes sparked concerns that there would be confusion around the State Department’s policy and process for changing gender markers. The State Department insists that the underlying policy remains unchanged.
State Updates
California
Governor Vetoes Safe Injection Site in San Francisco
September 30, Governor Jerry Brown rejected legislation that would have allowed San Francisco to be the first city in the nation to open a supervised safe injection site. The bill, AB 186, was presented to the Governor on September 4. In his veto statement, Brown said, “Fundamentally, I do not believe that enabling illegal drug use in government sponsored injection center — with no corresponding requirement that the user undergo treatment–will reduce drug addiction.”
A 2014 review of 75 studies of safe injection sites found that they fulfill their harm-reduction objectives: They promote safer injection conditions, reduce overdoses, and enhance access to primary care.
Governor Signs California Money Bail Reform Act into Law
August 28, the California Money Bail Reform Act, SB 10, was signed into law by Governor Brown and will take effect in October 2019. The bill eliminates cash bail and replaces it with an individual “risk assessment” system, non-monetary conditions for release, and nearly unlimited judicial discretion to order people accused of crimes to be held in jail until their case is resolved.
The original version of the bill intended to “safely reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system.” However, SB 10, as it was amended and signed into law, entails new problems that could undermine that goal. The reliance on “risk assessment” tools and judicial discretion risks reinforcing and exacerbating the pretrial system’s ingrained biases and lack of transparency. The law is opposed by human rights and civil rights organizations.
Governor Vetoes Medication Abortion Bill
August 30, Governor Brown vetoed a bill that would have allowed students on University of California (UC) campuses to access medication abortion, a safe and common abortion method used up to the first 10 weeks of pregnancy. UC students led the charge for access to medication abortion.
According to a report from UCSF, over 500 UC students seek medication abortions each month. No UC health centers currently provide medication abortion, forcing students to seek off-campus health care and causing logistical and bureaucratic challenges can take a serious toll on academic performance, financial stability, and emotional wellbeing. SB 320 would have addressed these problems by requiring all UC health centers to make the pills accessible to students by 2022.
Michigan
Anti-Discrimination Suit in Michigan Survives a Motion to Dismiss
September 14, a federal district court in Michigan ruled that the ACLU’s lawsuit against the state of Michigan could proceed. Dumont v. Lyon’s challenges the state’s practice of allowing publicly-funded child placement agencies to use religious criteria to discriminate against same-sex couples. In this equal protection suit, the ACLU argues that it is unconstitutional to allow such agencies to turn away otherwise-qualified prospective foster and adoptive parents because of their sexual orientation.