Activity threatening federal health care access laws that we profiled last month has not slowed down during this summer’s dog days. We begin with the one that you can TAKE ACTION on, but only until August 13.

Comment deadline approaches on anti-discrimination regulations rollback

The Department of Health and Human Services (HHS) has proposed changes to the Section 1557 Non-Discrimination rules under the Affordable Care Act (ACA). Section 1557 prohibits discrimination in health programs on the basis of race, color, national origin, sex, age, and disability status. The proposed changes will weaken or eliminate protections for LGBTQ+ individuals, people with limited English proficiency, and individuals seeking reproductive health services.

More information on the proposal is available at Families USA, Kaiser Family Foundation, National Health Law Program, and Asian & Pacific Islander American Health Forum. 

The proposed changes will seriously undermine existing protections against discrimination in health care. The changes in rule will significantly harm:

• Trans and gender-nonconforming people, who already experience significant obstacles to accessing all health care,
• LGBTQ+ people who do not conform to traditional sex stereotypes,
• People who need abortions or have had abortions in the past,
• People with limited English proficiency, who need to access language services (interpreters and translations).

Family planning “gag rule” will hit hard while more judges review it 

In two recent court orders, the 9th Circuit Court of Appeals has raised hopes that it may stop the Administration from prohibiting Title X family planning funded providers from even referring their patients to abortion providers, but unfortunately, the court did not stop the “gag rule” for the time being.  

On July 3, the 9th Circuit court announced that all its members (en banc) will review the three-judge order that “stayed” the district courts’ preliminary injunction blocking the rule.  But on July 11, the court clarified that even though there would be further review, it had not lifted the stay. The Administration then said it would immediately proceed with its rule. Planned Parenthood, calling this “devastating news for the millions of people who rely on Title X for cancer screenings, HIV tests, affordable birth control and other critical primary and preventive care,” announced last Wednesday that it has stopped using Title X funds, and states are following suit. Washington State ranks high among states in its percentage (36%) of Title X clinic recipients that are Planned Parenthood or perform abortions.  Our Governor and Health Secretary have committed to maintain current state family planning services while litigation continues. The costs to states that forego Title X funds are in the millions of dollars.

In the latest twist, on July 21, the Administration’s Office of Population Affairs (OPA) backed off of immediate enforcement. According to a document obtained by Associated Press, it gave Title X recipients until August 19 to submit written assurance that they do not provide abortions, mid-September to show compliance with most new requirements, and March 2020 to separate their physical facilities from those of abortion providers. Although the Administration says it “does not intend to bring enforcement actions” against clinics that are making “good-faith efforts to comply.” The National Family Planning and Reproductive Health Association criticized the cursory “bullet points” guidance and urged OPA “to better describe how it will interpret aspects of the rule — using examples that reflect the wide range of provider settings and administrative structures present in Title X. Once again, OPA falls far short of linking the rule to day-to-day practice, leaving the entire family planning network in the dark on how they need to operate to stay in the program.”

Texas vs. U.S. and the ACA

Last month, our blog summarized the tremendous stakes for Washingtonians and people nationwide in the Texas vs. U.S. litigation asserting that the entire Affordable Care Act is unconstitutional.

As the July 9 oral argument in the federal Fifth Circuit appeals court approached, Washington Attorney General Bob Ferguson explained that because the Trump Administration “callously refused to defend the law,” Washington joined many other states and the House of Representatives, intervening to do so. Under the ACA, our state’s uninsured rate has dropped by 60% and federal premium subsidies average $295 per month. 

Senator Patty Murray’s Seattle Times op-ed reminded Washingtonians that “your health care is on the line” if you have a pre-existing condition, have Medicaid thanks to its expansion, are a young adult covered by your parents’ insurance, or are an insured person who needs health care that before the ACA would have often been excluded but is now deemed“essential. She announced that “I’m pushing for legislation that would let the Senate join this lawsuit on the side of families’ health care.”  

The Kaiser Family Foundation’s issue brief explains the history, the issues, and the changing cast of characters, diagramming the possible outcomes in the Fifth Circuit: the ACA could continue, it could continue but without the individual mandate to purchase insurance, or it could be entirely struck down.

For some legal experts’ quick take on the “new tricks” that the Trump Administration tried, see Julie Appleby’s blog. The New York Times reported in detail how:

• The panel of three judges appointed by Presidents Carter, George W. Bush, and Trump “sounded likely to uphold” the district judge’s ruling that individual mandate is unconstitutional.
• “It was harder to discern” how they might rule on whether the entire ACA is unconstitutional.
• The argument of the states that brought the case and that of the Trump Administration were not entirely in sync. The Administration argued that any ruling should only apply in the plaintiff states, not nationwide, and “was also vague about another new and surprising position: that some pieces of the ACA should be preserved.” 

And the Washington Post rounded up comments about the arguments, noting that “Here’s who wanted little to do with the lawsuit: Republicans on Capitol Hill. They already failed to figure out how to repeal Obamacare back in 2017, and they would be back in that bind should the law get struck down.” But Senate Majority Leader McConnell wanted the “the public to know … there is nobody in the Senate not in favor of covering preexisting conditions … And if it were, under any of these scenarios, to go away, we would act quickly on a bipartisan basis to restore it.” Even the lawyers and the politicians who argue for destroying the ACA fear losing essential and popular protections that would not have come to pass without it!

The nationwide Advocates Day of Action on argument day brought rallies, press calls, protests, appearances with public officials, even a mock trial of a state attorney general (in absentia) who supports the lawsuit – and the reminder that “This is far from over.”  The anticipated Supreme Court review of whatever the Fifth Circuit rules in the coming months will be front and center well into the 2020 election campaign.  

–Charlie Mitchell, NoHLA Staff Attorney