TAKE ACTION! 

Please thank Washington Attorney General Bob Ferguson for defending the ACA and access to family planning! Submit a comment here.

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After focusing during winter and spring on an unusually noteworthy Washington State legislative session, we’re looking more closely beyond the Evergreen State and taking stock of federal government activity that seriously threatens access to health care. The Trump Administration is pushing three troubling regulatory initiatives (one being fought in court) and a litigation assault on the entire Affordable Care Act. 

1. Fighting Rulemaking Attack: Trump’s family planning “gag” rule in the courts

Title X of the Public Health Service Act is a highly effective federal program designed to provide affordable birth control and reproductive health care to low-income individuals.  Family planning and reproductive care providers who receive Title X funds cannot use any of these funds to provide abortions, but they have been permitted to “provide medically accurate, unbiased, and confidential reproductive health care, including contraception, screening and treatment for sexually transmitted infections, and information about and referrals to abortion services for women seeking them.”   

Last year, the Trump Administration proposed to prohibit providers from even referring their patients to abortion providers. Despite 204,000 comments (including NoHLA’s) that were overwhelmingly unfavorable, in February the Administration adopted what many are calling the “gag rule.” In addition to the ban on referrals to abortion, it requires providers to refer each pregnant patient to a prenatal care program, regardless of the patient’s wishes or the provider’s medical judgment, and to physically wall off (with separate entrances and exits, personnel, and duplicate health records) the parts of their clinics that provide abortion care or referrals.

In April, the federal district court in Yakima ruled that the Washington State Attorney General’s lawsuit against the rule was likely to succeed, and issued a preliminary order that the rule not go into effect. Three other federal judges ruled the same way. The federal Administration appealed.

But on June 21, the federal appeals court for the 9th Circuit, which includes Washington, issued an interim decision allowing the federal rules to take effect while the appeals proceed, even before the court makes a final decision. 

The implementation of these rules is expected to interfere with access to care. “Disproportionately harmed will be low-income women and LGBTQ people in need of high quality reproductive health services. The timing of this action couldn’t be worse, especially in the states where harsh abortion bans are being enacted. It is exactly the time when affordable, high quality contraceptive care is most needed.” – Lois Uttley, Director of the Women’s Health Program at Community Catalyst

Attorney General Ferguson announced that he will appeal this “flawed” 9th Circuit decision which, “unless overturned, … will hurt Washington women, especially low-income women in rural Washington.” 

Governor Inslee and Health Secretary Wiesman say they are taking steps to assure that our state’s family planning programs continue giving the same access to care now that the rule is effect for the time being.

2. Fighting Rulemaking Attack: Comments on rollback of ACA anti-discrimination protections due August 13

As NoHLA blogged on April 9, Washington State enacted SHB 1870, effective immediately, to make sure that our state law would preserve many important health care rights from the federal Affordable Care Act (ACA) and its regulations in effect as of January 1, 2017, come what may in D.C. or federal courts. The Legislature and Governor Inslee acted none too soon, because the Trump Administration has now officially proposed to gut Obama-era regulations that flesh out the protections from discrimination in health insurance and care based on national origin, disability, age, sex, gender identity, or sexual orientation. Washington’s new law aims to incorporate some of the existing provisions at the state level regardless of changes to federal law.

The threat to the ACA regulations is serious as it proposes to gut key protections, some  based on court decisions interpreting the ACA, that the current regulations include:

• Prohibitions against discrimination apply to all health programs administered by the federal Department of Health and Human Services (HHS), not just parts of the ACA itself.
• The law applies prohibitions against discrimination based on disability to health insurers as well as care providers. For example, HHS had agreed that prescription drug benefits may not be designed so that all AIDS/HIV drugs are in the insurance plan’s highest-price cost-sharing tier;
• Discrimination on the basis of sex includes discrimination on the basis of gender identity, discrimination against individuals who do not conform to “sex stereotyping,” and discrimination based on pregnancy and pregnancy-related conditions, including for abortion services. For example, this prohibits abuse or mistreatment of LGBTQ people by health care providers, and coverage exclusions for gender-affirming care.
• The prohibition against discrimination on the basis of “national origin” means that all “significant documents” must have taglines in all the top languages in the state, and that any remote interpretation must be by live video, not just audio.
• Written notices of these rights must be provided.

More resources on the threat to the ACA Section 1557 regulations are available from the National Health Law Program (NHeLP): a summary, a detailed Q&A, and a webinar. 

The rules, if adopted, might be challenged in court as inconsistent with the ACA. But the first step is to submit public comments by Tuesday, August 13, 2019.  Next month watch for resources to help you submit comments.  

3. The full frontal court assault on the ACA continues.

 Our blog post last December explained how a federal district judge in Texas had ruled that the 2017 repeal of the individual mandate required striking down the entire Affordable Care Act as unconstitutional. Commentators across the ideological spectrum criticized the decision as politically motivated and unsound. Now, the U.S. Court of Appeals for the Fifth Circuit, one of the most conservative, will hear arguments in the case, Texas v. U.S., on July 9th. And the Trump Administration has taken the side of the 20 states that brought the lawsuit. Our state, 19 others, the District of Columbia, and the U.S. House of Representatives have intervened to defend the ACA.  

Community Catalyst’s recent blog sums up the harm that upholding the Texas decision would do to the protections against discrimination, also discussed above, and estimates that nationwide 130 million people would lose protections for pre-existing conditions, 65% more people would be uninsured, and 2.5 million young adults could be dropped from their parents’ insurance. According to Health Care for America Now, in Washington State alone:

• 565,000 people could lose coverage that they have because of the ACA
• 50,000 young adults under age 26 could lose coverage under their parents’ insurance
• Over 3 million people have a pre-existing condition
• Over 3 million people could once again have to pay for preventive care
• 132,000 people who have insurance through the Health Benefits Exchange would lose tax credits and have to pay more for coverage
• 71,000 seniors could have to pay more for prescription drugs
• Annual and lifetime limits could be reinstated for 2,427,000 privately insured people
• 623,000 people could lose Medicaid Expansion coverage
• Rural hospitals could face $1.8 billion more in uncompensated care

Fact sheets for all 50 states are available here.

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TAKE ACTION! 

Please thank Washington Attorney General Bob Ferguson for defending the ACA and access to family planning! Submit a comment here.