Federal Updates

Election Update

Overall Results

Voters came out in force on November 6, 2018, to make our voices heard in federal, state and local races. With more than 116 million ballots cast, this midterm reportedly had the highest voter turnout of any midterm election in U.S. history. Democrats gained 40 seats in the House of Representatives, winning control of the chamber and breaking Republican domination in Congress. Republicans gained two seats and maintained control of the Senate.

The House will be an important check on Trump and the conservative legislative agenda. House Democrats now have the power to open investigations and subpoena documents or in-person testimony from, for example, executive branch officials or the Trump business. Democratic control of the House also means that Republicans will need Democratic support to pass any legislation, making the Affordable Care Act and other key aspects of the essential social safety net more secure now than they were on November 5.

This election was historic in more ways than one. Congress became more diverse, with a range of “firsts” for communities of color. Palestinian-American Rashida Tlaib (MI) and Somali-American Ilhan Omar (MN) have become the first Muslim women elected to Congress. Sharice Davids (KS) and Deb Haaland (NM) became the first Native American women elected to Congress. Veronica Escobar and Sylvia Garcia are the first Latinx women elected to Congress from Texas. Ayanna Pressley is the first African-American congresswoman elected in Massachusetts, and Jahana Hayes the first in Connecticut. Additionally, Alexandria Ocasio-Cortez (NY), at age 29, is the youngest woman ever elected to Congress.

A surge of female candidates shattered the prior record of 107 women elected to Congress, including over 40 women of color. This was also a hallmark election year for LGBTQ candidates, with over 150 new lawmakers taking office across the nation. Three people of trans experience — Brianna Titone (CO), Gerri Cannon (NH) and Lisa Bunker (NH) — were elected, ensuring that Danica Roem (VA) will no longer be the only transgender state legislator in the country. Kansas elected Sharice Davids, its first openly gay member of Congress, and Colorado elected Jared Polis, the first openly gay male governor in the nation.

Health Care Access

Health care was a defining issue of the midterm elections. Voters in Idaho, Nebraska, and Utah all demanded Medicaid expansion at the ballot box, approving ballot measures to extend Medicaid coverage to adults living at or below 138% of the federal poverty level–an option that has been available to states under the Affordable Care Act (ACA) since 2014. About 300,000 people will gain access to health care coverage through the three expansions. Voters in Montana also had Medicaid expansion on their ballot, but rejected the measure.

Additionally, three states that have not yet expanded their Medicaid program through the ACA — specifically Maine, Wisconsin, and Kansas — have elected Democratic governors, all of whom championed Medicaid expansion on the campaign trail. All together, the number of states that have improved health care coverage through Medicaid expansion could rise to 39, including the District of Columbia.

Voting Rights

In an election marred by widespread voter suppression, voters in three states fought back. Maryland, Michigan, and Nevada approved laws to make voting more accessible. Maryland approved Question 2, which amended the state Constitution to allow same day voter registration in future elections. Voters in Nevada passed automatic voter registration, whereby Nevadans will automatically be registered to vote when they change their address or obtain a driver’s license. And Michigan approved Proposal 3, which amended the state Constitution to add straight-ticket voting, automatic voter registration, same-day voter registration, and no-excuse absentee voting.

Arkansas and North Carolina went the other way, restricting voter rights by establishing new voter identification requirements. 

Sexual and Reproductive Health and Rights

Two states made changes to their state constitutions that could dangerously impact abortion access. Voters in West Virginia approved language to assert that nothing in the state constitution “secures or protects a right to abortion or requires the funding of abortion.” Alabama added similar language and went one step further by declaring that it is “public policy of the state to recognize and support the sanctity of unborn life and the rights of unborn children.”

Currently, the changes are largely symbolic, because the legal right to abortion is protected under the Supreme Court decision, Roe v. Wade. However, the recent appointment of two conservative Supreme Court Justices — Neil Gorsuch and Brett Kavanaugh — has shifted the ideological balance of the Court decisively to the right and placed the protection afforded by Roe at increased risk.

In Oregon, voters rejected Measure 106, which would have prohibited public funds from being used for abortion care in all but a few limited circumstances. The measure would have been dangerous for women’s health in the state, making it impossible for people on Medicaid and public employees to obtain abortion coverage through their health insurance. Currently, Oregon is one of 17 states that allows state funds to go towards abortion care.

Criminal (In)Justice

Marsy’s Law gained traction:

Marsy’s Laws create a bill of rights for victims. They invent and expand legal rights for victims of crime and their family members during and after criminal proceedings including a right to privacy and right to be heard through all stages of a hearing, represented by counsel, and protected from the accused. Six states — Florida, Georgia, Kentucky, Nevada, North Carolina, and Oklahoma — approved Marsy’s Law ballot measures. 

The laws are controversial because they pit the rights of defendants against the rights of victims. This creates a false equivalency that prioritizes a punitive approach to crime over a victim-centered approach to healing. Defendants’ rights apply when the state is depriving someone of life, liberty or property, and (when they are working properly) are essential to countering the enormous power imbalance that the government has over the accused. These newly-created victims’ rights, on the other hand, are against an individual, i.e. the accused. In many cases, the rights the law supposedly creates are already guaranteed by existing state laws. Those that are new exacerbate the power imbalance, dangerously underming due process and the presumption of innocence, and are likely to negatively and disproportionately impact communities of color.

Voter enfranchisement in Florida:

Amendment 4, a constitutional amendment to automatically restore voting rights for people previously convicted of felonies (excluding convictions for murder or a sex offense) passed with overwhelming support in Florida. About 1.5 million people in the state regained their right to vote, making this the single greatest voter enfranchisement in almost 100 years, since the ratification of the Nineteenth Amendment in 1920 gave women the right to vote.

Prior to the change, fully 21% of Florida’s otherwise eligible Black citizens were permanently disfranchised due to felony convictions. In a state infamous for razor-thin margins of victory, including in this midterm, Amendment 4 could have a very substantial impact on future elections.

Kentucky and Iowa are now the only U.S. states that continue to maintain a lifetime voting ban for people convicted of felonies.

Conviction reform in Louisiana:

Voters passed Amendment 2 in Louisiana to eliminate a Jim Crow-era law that allowed “split-jury” convictions in felony trials. Criminal cases in the state used to require only 10 out of 12 jurors to agree to convict. Now a unanimous jury is required, bringing Louisiana in line with every other state in the nation except Oregon. The split-jury system in Louisiana had deeply racist roots, helping maintain white supremacy and punish Black defendants in the state by minimizing the influence of Black jurors.

Economic Justice

Low-wage workers had significant victories in two traditionally conservative states. Voters in Arkansas passed Issue 5, which will raise the state’s minimum wage to $11 an hour by 2021. In Missouri, the minimum wage will increase from $7.85 to $12 an hour by 2023. Both states will soon have among the highest minimum wages in the nation.

Hotel workers in Oakland, California also won by passing a local measure passed that will increase pay, establish workplace protections against sexual assault, and ensure better enforcement of employment standards.

Trans Rights, Safety, and Justice

Massachusetts held the nation’s first statewide vote for anti-discrimination protections based on gender identity, and voters overwhelmingly said “yes” to upholding the rights of people of trans experience.

Massachusetts law already bans discrimination based on gender identity in public accommodations, such as hotels, restaurants, and other places that serve the public. Opponents tried and failed to repeal that law through a popular vote.

Immigrant Rights

Voters in Oregon upheld the state’s sanctuary state law with significant margins. About 63% of voters said “no” to repealing the 31-year-old law that seeks to protect immigrants in the state by restricting local police from helping federal Immigration and Customs Enforcement (ICE). 

Trump Administration Update

The day after the election, Trump forced Jeff Sessions to resign as Attorney General of the United States after harsh public criticism of Sessions’ decision to recuse himself from special counsel Robert Mueller’s investigation of Russian meddling in the 2016 presidential election. The Attorney General represents the federal government in legal matters and heads the U.S. Department of Justice.

While in office, Sessions has a hardline conservative record, including targeting thousands of young people for deportation by rescinding DACA, reversing federal protections for LGBT people, constructing the “zero tolerance” and family separation policies at the border, and ramping up the war on drugs.

Trump appointed conservative ally Matthew Whitaker, who has endorsed anti-abortion “personhood” bills and who had been vocally critical of the special counsel’s investigation, to replace Sessions on a temporary basis. Under normal procedure, the Deputy Attorney General, Rod Rosenstein, should have become the Acting Attorney General. A number of lawsuits have been filed to challenge Whitaker’s appointment.

November 14, Senate Majority Leader Mitch McConnell refused to allow a floor vote on bipartisan legislation to protect the Mueller investigation. The bill, S.2644, would codify Justice Department rules that a special counsel, like Mueller, be fired only for “misconduct or other good cause.” In response, Senator Jeff Flake, who holds a deciding vote on the Judiciary Committee, said he would not move any of Trump’s judicial nominees forward to the full Senate until the bill has a vote.

Immigrant Rights

DACA program closer to safety

November 8, the Deferred Action for Childhood Arrival (DACA) program got one step closer to safety.  A federal appeals court upheld a lower court’s preliminary injunction, which stopped the Trump administration from ending the Obama-era program that protects thousands of undocumented immigrants who were brought to the United States as children. The appeals court agreed that the attempted rescission of DACA is likely to be “arbitrary, capricious or otherwise not in accordance with the law.” The Justice Department is expected to appeal the decision to the U.S. Supreme Court.

Trump tries to change asylum rules

November 9, Trump issued a presidential proclamation that would make any immigrant who enters the U.S. from the southern border outside of a legal point of entry ineligible for asylum in the U.S. The Department of Homeland Security and Executive Office for Immigration Review released an interim final rule to implement the policy and procedural guidance for how U.S. Citizenship and Immigration Services (USCIS) asylum officers should screen and process asylum claims in light of the policy.

The suspension of entry was supposed to take effect immediately, but the policy was promptly challenged and judicially blocked until December 19. The district court judge who issued the nationwide, temporary restraining order wrote, “Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”

You can express your outrage by submitting a comment here.

U.S. border agents escalate violence against migrant caravan

November 25, U.S. immigration agents temporarily closed the San Ysidro port of entry at the US Mexico border in California and escalated a violent assault on migrants attempting to enter and seek asylum. Many of the migrants are part of the “caravan” from Central American asylum-seekers, fleeing violence and persecution in their home countries and whom Trump infamously mischaracterized and demonized as an impending “invasion” of criminals to galvanize his anti-immigrant base ahead of the midterm elections.

After traveling thousands of miles, some 7,000 migrants have been stuck waiting in makeshift encampments in otherwise poor and inhumane conditions in Tijuana, Mexico. Under Trump authorities at ports of entry have been severely constricting the number of people admitted to seek asylum– processing only around 40 to 100 people each day. In protest of the deliberately slow and delayed processing for asylum claims, which migrants have a legal right to pursue under both US and international law, several hundred people marched up to the US side of the border to demand admission.

Trump has dispatched 1,800 troops to the California border and has authorized the use of “lethal force” against the migrants seeking entry. Earlier this month, a federal court blocked new measures the administration attempted to implement to deny asylum-seeking migrants who attempt to enter the country at the border outside of designated ports of entry.

Sexual and Reproductive Health and Rights

November 7, the Trump administration released two final rules that create broad religious and moral exemptions to the Affordable Care Act’s birth control mandate. Health plans are required to cover all FDA-approved birth control methods for women without out-of-pocket costs.

The administration initially attempted to issue similar regulations in October 2017, but those rules were blocked by a judge.  In this latest iteration, the rules would allow virtually any employer or university to deny insurance coverage for birth control to their employees or students by claiming a religious or broadly defined moral objection. 

These rules are discriminatory and undermine women’s rights to comprehensive health care and economic security. The final rules will go into effect on January 14, 2019 and are currently being challenged in court.

November 7, the Trump administration issued a proposed rule that could make it nearly impossible for health insurance plans on the ACA marketplace to cover abortion. The rule would require marketplace insurers to create a separate bill and collect a separate payment for coverage of abortion services. It is effectively a backdoor abortion ban, imposing unnecessary and burdensome regulations on insurance providers to create a logistical nightmare and dissuade them from covering abortion. At least 1.3 million people could lose their current abortion coverage as a result of the proposed rule. Comments are due January 9, 2019. 

Health Care Access

PrEP access

The future accessibility of the HIV pre-exposure prophylaxis (PrEP) looks a little brighter. The United States Preventive Services Task Force released draft guidance on November 20 that gives PrEP an “A” grade for individuals at high risk of HIV acquisition. The USPSTF ia an independent panel of private-sector medical experts appointed by the government. It plays a big role in determining what health insurance covers by making recommendations about preventive services. Under the ACA, health plans must cover, without copay, any preventive service that the USPSTF gives an “A” or “B” grade.

This means that if the draft guidance is finalized, most health plans will have to cover PrEP for people who are at high risk of HIV acquisition without any out-of-pocket cost.

Medicare Part D under threat

November 26, the Trump administration has proposed a plan to cut Medicare costs by eliminating a requirement that health insurance plans that provide prescription coverage to Medicare plans cover all the drugs included for six “protected classes”— mainly people with cancer, HIV/AIDS, depression, schizophrenia and other conditions. The administration contends that the change, which would take effect in 2020, will lead to lower out-of-pocket costs for Medicare beneficiaries. However, advocates for people living with HIV and other conditions who would be impacted strongly support the coverage requirement and believe that Part D program works well to ensure comprehensive access to range of medications and treatment for some of Medicare’s most vulnerable beneficiaries. 

Violence Against Women and Girls

 November 16, the Department of Education released a Notice of Proposed Rulemaking, which proposes to amend provisions of Title IX, the federal law that prohibits sex-based discrimination at school. The changes would further roll back student protections by narrowing the definition of sexual harassment, diminishing the liability of schools, and denying due process to students who make Title IX complaints.

Ultimately, the proposed changes could make schools complicit in harassment and violence and make it harder for survivors to come forward. Reportedly, a “mens’ rights” group lobbied Education Secretary Betsy DeVos to pass the new regulations.

The regulations have not yet been published to the Federal Register. Once it is posted, the public comment period will be open for 60 days. 

Economic Justice

November 5, the Department of Labor has issued a proposed rule that would allow states to condition unemployment benefits on drug tests. The rule itself has not been finalized and does not require states to implement drug tests, rather it would give states more power to require drug tests for a far larger group of people seeking unemployment benefits than has ever been previously allowed.

The regulations are designed to stigmatize use of the essential social safety net and, according to the National Employment Law Project, may violate the U.S. Constitution. The public comment period will be open until January 4, 2019.

Sentencing Reform

November 14, Trump announced his support of the First Step Act, H.R. 5682, bipartisan criminal sentencing reform legislation that could overhaul the way that certain crimes are sentenced in the courts. It would reduce federal mandatory minimum sentencing for some drug offenses, reduce the racially-motivated sentencing disparity between crack and powder cocaine offenses, expand rehabilitative options for those who are incarcerated, and ban the shackling of pregnant women in prison.

The First Step Act has been endorsed by groups across the political spectrum, from the Koch Brothers to the Brennan Center for Justice, from the Fraternal Order of Police to the ACLU. The Senate may vote on the Act before the end of the year, but many hurdles remain. 

State Updates 

Illinois

November 5, Illinois Medicaid released new coverage criteria for the treatment of hepatitis C. Previously, patients had to have severe liver damage in order to qualify for Medicaid coverage of direct-acting antivirals (DAAs), oral medicine that can effectively treat people with hepatitis C with few side effects.

The new policy removes all disease severity restrictions, including the prior fibrosis score requirements. It also removes the state’s substance use screening requirement and weakens the categorical requirement that prescriptions be written by, or in consultation with, a specialist. Advocates have celebrated the policy change as a landmark expansion in the availability of hepatitis C care.

Kentucky

November 20, the Trump administration approved the Kentucky HEALTH waiver project for a second time. The waiver would require working age, non-disabled, adult Medicaid enrollees to work, volunteer, or participate in other work-related activities for at least 20 hours per week to maintain health insurance coverage.

The re-approval of the waiver was necessary because the first approval was blocked by a federal judge, who found that the Trump administration did not adequately consider the impact that the change would have on low-income Kentucky residents.  Advocates have vowed to challenge this waiver approval as well.