Federal Updates

Healthcare Coverage and Access

Administration Finalizes Regulations Weakening Essential Health Benefits

In November 2017, the Trump administration released proposed regulations rolling back essential health benefits (EHBs), minimum coverage requirements for individual health insurance plans required under the Affordable Care Act (ACA). EHBs include ten categories of services: outpatient services, emergency services, hospitalization, maternity and newborn care, mental health and substance use disorder services, prescription drugs, rehabilitative and habilitative services, laboratory services, preventive and wellness services and chronic disease management, and pediatric services. Under the ACA, states were required to pick one plan in their state to serve as a benchmark for all other plans to follow when defining coverage in the above categories. On April 10th, the Department of Health and Human Services (HHS) finalized the new regulations which will take effect by 2020. Under the new regulations, states will be allowed to choose out-of-state plans to use as their benchmark, meaning they can select plans that have less comprehensive coverage and higher out-of-pocket costs. While states remain obligated to include all ten EHB categories, the final regulations would allow states to limit or completely drop specific services from each category. These regulations are being framed as giving states greater flexibility in determining their EHB coverage. However, states that want to expand their coverage beyond their 2017 benchmark plans would be required to cover the cost from their own budgets, making increased coverage prohibitively expensive for most states.

HHS Denies Work Requirement Exemptions for Native Americans

The Trump administration has denied Native American tribes an exemption from Medicaid work requirements. Tribal leaders have voiced concern about applying work requirements on reservations, many of which struggle with poverty, high rates of unemployment, and major health disparities resulting from centuries of exploitation, violence, and consequent community trauma. As a result of the federal government’s failure to meet its obligation to fully fund the Indian Health Service,  many tribe members have been forced to rely on Medicaid to fill the service gap. The administration has denied the demand to exempt tribes from work requirements by claiming that it would be an illegal race-based preference. Tribal leaders and some Senators have argued that Native Americans are not a racial group but have treaty-protected authority as political communities. HHS has refused to provide legal documentation showing the basis for the exemption denial.

Criminalization

Congress Passes SESTA/FOSTA Endangering Sex Workers

The Fight Online Sex Trafficking Act (FOSTA) introduced in the House and the Stop Enabling Sex-Trafficking Act (SESTA) introduced in the Senate were signed into law as a package on April 11th. Both bills target the longstanding “safe harbor” rule established by Section 230 of the 1996 Communications Decency Act, which prevented website publishers and users from being held responsible for content posted by other users. FOSTA/SESTA create an exception to the safe harbor rule that opens publishers to liability if third parties post ads for “prostitution”, including consensual sex work, on their platforms. Consequently, several websites, such as Craigslist, have closed their personal ad pages and other websites have been shut down entirely. These pages are often used by people engaged in sex work to safely advertise their services and to screen clients for past reports of violence. Removal of these pages means sex workers may have to stop seeing clients completely or risk violence, arrest, and abuse on the streets. Concerns have been raised that the legislation may also create liability for websites that provide health resources and legal information to sex workers and survivors of trafficking.

Economic Justice

HUD Secretary Proposes to Triple Rent, Impose Work Requirements for Subsidized Housing

On April 25th, Secretary of Housing and Urban Development (HUD) Ben Carson proposed a change to current HUD rules which would increase rent costs for subsidized housing from 30% of the resident’s gross income to 35% (more than a third), and the cap on monthly rent for the lowest-income families receiving assistance would increase from $50 to $150. This rent hike would affect fully half of the 4.7 million families currently receiving housing assistance.  The HUD proposal also suggests eliminating rules that allowed deductions for medical and child-care costs when determining rent amount and would allow housing authorities to impose work requirements. Currently, only 15 out of 3,100 housing authorities across the country impose some form for work requirement for residents. These requirements typically include risk of termination of assistance unless all non-elderly, able-bodied adults in a household are part or full-time employed, with limited exceptions for people in school or job training programs.

Farm Bill Threatening Food Stamp Program Headed for House Vote

On April 18th, the House Agriculture Committee approved HR 2, the 2018 Farm Bill, which is now headed to the House for a full vote expected by early May. Included in the bill are proposed changes to the Supplemental Nutrition Assistance Program (SNAP, also known as food stamps) which would eliminate or reduce benefits for more than 1 million households by cutting $20 billion over the next 10 years. The bill also proposes harsh work requirements – it would lock people out of receiving benefits for a year if they cannot prove they are working 20 hours/week and for three years if they are unable to meet the requirements more than once. Under the proposal, states would need to fund and create a system to track these hours but would only receive the equivalent of only $30/month per beneficiary from the federal government to create job training programs. The bill’s supporters tout work requirements as a way of helping people find work but ignore the fact that the majority of SNAP beneficiaries that can work already do and that food assistance helps people stay employed by making up for low wages and unreliable hours. Cuts to SNAP are also particularly harmful for women, children, and people with disabilities.

Department of Agriculture Proposes Drug Testing for Food Stamp Recipients

On April 11th, the Associated Press reported another attack on the SNAP program by sharing internal emails from the Agriculture Department indicating they were waiting for the administration to announce a new drug testing policy for determining food stamp eligibility. In the emails, department officials state the policy would apply to “able-bodied people who do not have dependents and are applying for certain jobs, such as operating heavy machinery.” Both Florida and Wisconsin have tried to implement drug testing for SNAP beneficiaries in the past but have been blocked by courts. At least 20 states have successfully passed legislation that imposes some form of drug screening for beneficiaries of other social safety net programs.

Immigrant Justice

Federal Court Orders Trump Administration to Stop Blocking Abortions for Immigrant Women

In late 2017, the American Civil Liberties Union (ACLU) brought a lawsuit against the Office of Refugee Resettlement (ORR) on behalf of Jane Doe, an unaccompanied immigrant minor who was barred from getting an abortion. Doe was granted a court order which required immigration officials to allow her to get an abortion. However, she was only one of a group of undocumented immigrant women who had similarly been denied. The ACLU then requested that these women be treated as a class, a group of individuals who have experienced the same harm, which would allow them all to benefit from a judgment in their favor. On March 30th, the United States District Court for the District of Columbia granted the request and ordered the government to stop blocking abortion access for any woman in ORR custody while the lawsuit is still ongoing. Transcripts revealed that ORR officials and Director Scott Lloyd openly used coercive tactics to make the women carry their pregnancies to term. Lloyd has also expressed that he believes abortion is a sin and invoked a religious objection as justification for preventing access.

ICE Ends Immigration Policy that Automatically Released Pregnant Detainees

Immigration and Customs Enforcement (ICE) has ended the Obama-era policy of automatically releasing pregnant immigrant detainees. While this change was finalized back in December 2017, the announcement came on March 29th.  Under Obama, immigration officers were instructed to presume that pregnant women could be released except for extreme circumstances. However, ICE had already been detaining pregnant women in violation of that instruction since September 2017. With the presumption that the policy is now officially ended, officers will review release on a case-by-case basis, and immigrant rights advocates are concerned this will ultimately mean that more pregnant women will remain in immigration holding facilities for extended periods of time. These facilities have come under scrutiny before for inhumane practices and for failing to provide legally required medical care.

Supreme Court Hears Arguments on Muslim Ban

On April 25th, the Supreme Court began hearing arguments on the third version of the administration’s Muslim travel ban. After previous versions were blocked by federal courts for being discriminatory, the Supreme Court allowed this latest version of the ban to go into effect in late 2017, while an appeal was pending. Unlike the two previous versions, the current ban permanently bars people from six Muslim-majority countries (Chad, Iran, Libya, Somalia, Syria, and Yemen), North Korea, and some officials from Venezuela.  The Justices remained split during arguments, with the Courts’ more liberal justices citing Trump’s history of Islamophobic comments as showing the true motive for the ban while more conservative Justices, focused on whether it was constitutional for Trump to institute the ban for national security reasons regardless of his personal biases. A final ruling is expected by late June.

Federal Judge Reopens DACA Applications


Back in September 2017, the administration ended the Deferred Action for Childhood Arrivals (DACA) program that protected immigrants (known as Dreamers), who came to the U.S. as children, from deportation. Since then, two federal courts have issued orders allowing Dreamers to apply for renewals of their work permits. On April 24th, DC District Court Judge John Bates went a step further and ordered the administration to allow immigrants who qualify for DACA to apply for work permits even if they never applied before. However, the order does not go into effect for another 90 days and if the Department of Homeland Security presents a stronger legal argument for ending DACA, then Judge Bates will rescind the order and no new applications will be accepted.

Acting ICE Director to Step Down

On April 30th, Thomas Homan, acting director of ICE, announced that he would be stepping down from his job and retiring after 34 years as a law enforcement official. The announcement comes six months after Trump nominated Homan for the role. Homan was a vocal supporter of ICE using more aggressive tactics and immigrant arrests rose 40% under his direction. Though Homan was nominated in November 2017, his confirmation never progressed further after Senate Democrats opposed it and no hearing was ever scheduled. On April 27th, Senate Democrats had asked the Department of Homeland Security (DHS) to submit documents shedding light on whether it was proper for Homan to have been nominated for a permanent position. DHS did not respond to the request.

Public Charge Rule Would Punish Pregnant Women, Children, and Low-Wage Immigrants

Under existing federal law, most immigrants (except refugees and asylees) are subject to a “public charge” determination when applying for legal permanent residency. If immigration officials found that an immigrant would be “primarily dependent on” (defined as getting more than half of their income from) cash assistance benefits (Temporary Assistance for Needy Families-TANF) or Medicaid long-term benefits (covering nursing homes and under forms of long term care), then they can be considered a “public charge” and be denied permanent residency. Review under the existing rule required that officials look at the complete picture of an immigrant’s life circumstances including their education level, health, and additional family support, so no one factor alone would disqualify them from residency. In February, leaked news reports stated that the administration would be proposing changes to the existing public charge policy. The changes will likely be aimed at broadening the array of services/aid that can be considered in a public charge determination in the future, including programs like Medicaid,  Children’s Health Insurance Program (CHIP), and the Supplemental Nutrition Assistance Program (SNAP or food stamps) among others. Additionally, the changes would scrutinize receipt of assistance regardless of whether an applicant was primarily dependent on that assistance, would also allow immigration officials to deny residency if close family members of the applicant have or are likely to receive public assistance, and may allow the use of public assistance as justification for deportations for immigrants who are already legal permanent residents. Essentially, the proposed changes would make it easier to deny or strip legal permanent resident status and force immigrants to decide between getting residency status and using social safety net programs. The heaviest impact would be felt by 1) immigrant workers who make low wages and/or don’t get health insurance coverage through their jobs, 2) pregnant immigrants who need pregnancy-related support services, and 3) infants and children who need nutrition assistance. Children who are U.S. citizens from immigrant families would similarly endanger their family member’s residency by participating in social safety net programs.

Disability Justice

Senator Duckworth Rallies Democrats to Save the Americans with Disabilities Act

In late March, Senator Tammy Duckworth (D-IL) led 42 other Senate Democrats to write a letter to Senate Majority Leader Mitch McConnell, pledging to block a vote on HR 620. HR 620 is a bill that would make it harder for people with disabilities to enforce their rights under the Americans with Disabilities Act (ADA). The ADA allows people with disabilities to bring lawsuits against businesses to order them to comply with accessibility requirements. HR 620 inserts procedural obstacles and mandatory waiting periods before a lawsuit can be brought, meaning businesses can remain inaccessible for years. The 43 senators who pledged their opposition to the bill are enough to filibuster (delay) a vote and preserve the ADA for the time being.

LGBT Rights

Federal Judge Blocks Transgender Military Ban

An April 13th, U.S. District Judge Marsha Pechman of the Western District of Washington upheld injunctions halting the ban on transgender servicemembers serving in the military. Judge Pechman ruled that transgender people are a protected class because they “have long been subjected to systemic oppression and forced to live in silence.” Courts must closely examine the government’s motive when a protected class of people are harmed. To implement the ban, the government will need to provide strong evidence to show that it furthers a government purpose and was not created to simply discriminate. Judge Pechman also criticized the federal government for refusing to identify the military consultants behind the ban despite being asked to do so on multiple occasions. Judge Pechman’s ruling keeps the ban from taking effect while the lawsuit, brought by civil rights organizations and transgender servicemembers, is still ongoing.

Administration Targets Healthcare Protections for People of Transgender Experience

The ACA’s section 1557 prevents healthcare providers and insurance companies from discriminating based on race, color, national origin, sex, age, or disability if they receive federal funding. In May 2016, under Obama, the Department of Health and Human Services (HHS) issued a rule interpreting discrimination based on gender identity as a form of sex discrimination, so providers and insurers could not deny care or coverage to people of transgender experience (including access to transition-related care). Texas objected to the rule and brought a lawsuit before U.S. District Judge Reed O’Connor. Just before Trump took office in January, Judge O’Conner blocked the new rule from going into effect saying it violated the religious beliefs of providers and that sex discrimination only referred to “biological differences between males and female”. That ruling went against a previous Supreme Court decision recognizing a broader understanding of gender bias. But the Trump administration did not appeal the ruling; instead they stopped the lawsuit and decided to get rid of the Obama-era rule. On April 21st, the administration announced it was moving ahead with that plan by drafting their own rule that would pull the anti-discrimination protections for people of transgender experience. People of trans experience suffer from numerous healthcare access disparities; studies from the National Center for Transgender Equality (NCTE) showed that 19% percent of trans or gender non-conforming respondents experienced denial of care. One-quarter of respondents deliberately delayed care due to concerns about discrimination, and one-third had “at least one negative experience related to being transgender” in a medical setting. These issues were especially pronounced for Black, Latinx, and Indigenous people of trans experience.

State Updates

Indiana

Pence-backed Abortion Law Found Unconstitutional

On April 20th, a federal appeals court held that the Indiana abortion law backed by Mike Pence during his tenure as Governor is unconstitutional. Pence signed House Enrolled Act 1337 (HE 1337) into law in March 2016. At the time, Indiana already had some of the strictest abortion laws in the country and had abortion clinics operating in only 4 of its 92 counties. HEA 1337 prohibited doctors from performing abortions for women who sought them “solely because of: (1) the race, color, national origin, ancestry, or sex of the fetus; or (2) a diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability.” Doctors who performed these abortions could be charged with wrongful death. The prohibition on abortion based on fetal disability is considered an extreme restriction that only one other state, North Dakota, had adopted. HEA 1337 imposed an 18-hour waiting period between getting an ultrasound (during which women had to listen to the fetal heartbeat) and the actual procedure. The bill also required that women pay for cremation or burial of aborted fetuses.

Missouri

Sex Selective Abortion Ban Targets Asian and Pacific Islander Women

Legislators in Missouri are currently trying to pass HB 1867, a bill that would ban abortions based on the sex of the fetus. Eight states have already passed  sex selective abortion bans based on stereotypes about Asian and Pacific Islander (API) communities and which are often accompanied by anti-immigrant and anti-API sentiment and rhetoric. The race-based assumption is that immigrant Asian women will abort female fetuses because of their preference for male children. Similar legislation has been introduced at the federal level as well in the form of the Prenatal Nondiscrimination Act (PRENDA) of 2017. HB 1867 is the latest in a long line of abortion restrictions in Missouri, which already includes mandatory counseling that subjects individuals seeking abortion to information designed to discourage abortion care and a mandatory 72-hour waiting period, that forcing people seeking abortion take additional time away from work and family.

California

SB 1204 – Pandering Law Dies in Committee

On April 25th, SB 1204 died in committee due to insufficient votes in the state Senate Public Safety Committee. The bill was originally introduced by state Senator Pat Bates (R – Laguna Niguel). SB 1204 would have broadened California’s criminal code to redefine felony “pandering” to include anyone who “arranges, causes, encourages, induces, persuades, or procures another person to be a prostitute,” with a maximum sentencing of eight years for anyone 16 years or older, including minors. Previously, the law focused on the act of “procuring” sex work, by violent coercion, threats, or financial exchange. Sex worker advocacy organizations opposed the bill as it would have cut sex workers off from harm reduction organizations, legal assistance, and other vital services that keep them safe.

Tennessee

State Ban on Sanctuary Cities Headed to Governor’s Desk

On April 25th, Tennessee legislators approved a bill that would preemptively prevent the creation of any sanctuary cities within the state, which currently has none. The bill is now headed to Governor Bill Haslam‘s desk for his signature. Sanctuary cities and states are places that limit local law enforcement cooperation with federal immigration enforcement. The Tennessee bill would require state law enforcement to comply with ICE requests to detain immigrants. Cities that attempt to pass sanctuary legislation will be barred from receiving a grant from the state Department of Economic and Community Development.

Wisconsin

Lawsuit Filed to Protect Access to Transition-Related Health Services

On April 30th, two transgender residents filed a lawsuit against the state of Wisconsin for denying Medicaid coverage for their gender confirmation surgeries despite their doctors’ recommendations. Coverage was denied based on a 1997 Wisconsin Department of Health Services regulation which grouped the procedure in the same category as tattoo removal. Wisconsin is one of 10 states that similarly deny Medicaid coverage for transition-related care. The plaintiffs are arguing that there is no legitimate basis for their denial and wants to prevent application for the regulation.