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Feb. 18th, 2005 10:32 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
electriclandHey lawgeekers - I just saw this (I'm working through my giant email table of contents inbox, step by painful step) and am perturbed. (Registration required, so
Refusal Clause Seen as Threat to Reproductive Health, Gag on Information: Law Takes Effect
Posted 02/04/2005
Kim Krisberg
A new law making it easier for health professionals to withhold reproductive health information from patients made its way into the courtroom in January amid concerns that it undermines the nation's family planning programs and risks the health and lives of women.
The law, known as the federal refusal clause, was inserted into fiscal year 2005 omnibus appropriations legislation that was signed by President Bush in December 2004. The clause, inserted by Rep. Dave Weldon, R-Fla., allows a federally funded "health care entity" to deny women information on abortion services, even if state laws mandate that such information be given upon request. States that attempt to enforce their laws can be accused of discrimination, and be denied all of their health, education and labor funding as appropriated under the omnibus bill.
"The overarching principle is that this is a backdoor attempt to gag referrals for abortion, to gag health care providers and to basically intimidate states away from having anything to do with abortion," said Judith DeSarno, president of the National Family Planning and Reproductive Health Association, which filed suit to stop enforcement of the refusal clause. "The precedent here is that you can withhold any kind of information and still get federal dollars."
According to the association, the refusal clause is at odds with numerous regulations attached to the Title X program, the nation's only federal program solely dedicated to providing family planning and reproductive health care to low-income and uninsured women. Organizations that receive Title X funding must agree to a number of requirements that range from blood pressure screenings to sexually transmitted disease testing to giving abortion referrals upon request. Those who violate the terms of Title X grants, DeSarno said, can then be sued or have their federal funds withdrawn. But with the Weldon clause, such requirements can be rendered unenforceable.
"There's a bitter constitutional question here: Can Congress mandate state law through the appropriations process?" DeSarno told The Nation's Health.
The refusal clause could also allow providers to not only sidestep Title X requirements, but state Medicaid laws. For example, some states require that low-income women have access to Medicaid-funded abortions in cases of life endangerment, rape and incest.
According to the Weldon measure, which supporters refer to as a "conscience clause," the legislation protects individuals and institutions from being forced to "provide, pay for, provide coverage of, or refer for abortions." However, there were already measures in place that "protect the religious views of individual medical providers," according to the National Family Planning and Reproductive Health Association. Those who object to giving abortion referrals could always withdraw themselves and refer patients to someone who is willing to provide abortion services information. In fact, the Weldon refusal clause is so vague in its wording that it doesn't actually define what a legitimate objection is, opening the door for any type of objection to fit within the clause's parameters.
"(Weldon's) real intent is to limit access to abortion and the place you start with is information," DeSarno noted.
The wording of the refusal clause is so broad that advocates worry it could be used to affect other reproductive health services as well. According to Rachel Laser, JD, senior counsel at the National Women's Law Center, a "perverse" interpretation of the refusal clause could include certain forms of birth control. For example, if a provider believed emergency contraception was an abortifacient, the Weldon clause could possibly be construed to cover such an objection -- even in states that legally require emergency rooms to provide emergency contraception to rape victims. If used within 120 hours of unprotected sex, emergency contraception can prevent pregnancy from occurring, but it does not induce an abortion.
"This is a horrible gag on information and in conflict with what the nation intended with its family planning program," Laser said.
The refusal clause is also broad in its interpretation of a "health care entity," which it defines as "an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization or plan." Such wording could put states in jeopardy of losing all of the federal funding they received under the omnibus bill if they require Medicaid managed care companies to abide by laws that provide low-income women with abortion services in cases of rape and incest, according to the American Civil Liberties Union.
"This could well reach into other populations, but obviously, the first targets are women who depend on government assistance," Susanne Martinez, vice president for public policy at Planned Parenthood, told The Nation's Health.
The National Family Planning and Reproductive Health Association filed suit on Dec. 13 on the basis that the Weldon federal refusal clause is in conflict with Title X requirements. The association is seeking protection against the clause for its members, which includes almost 4,000 clinics across the nation that receive Title X funds.
The suit, National Family Planning and Reproductive Health Association Inc. v. Ashcroft, had its first hearing on Jan. 5 in U.S. District Court in Washington, D.C. In addition to the association, California Attorney General Bill Lockyer said he was planning to file suit to block the Weldon clause as well, as the state boasts some of the nation's most progressive reproductive health laws.
The Weldon refusal clause is far from the first time that U.S. lawmakers have threatened to withhold funds as a means of restricting abortion information. In 2001, President Bush reinstated the "global gag rule," which blocks non-governmental organizations that receive U.S. global family planning assistance from performing abortions, providing counseling or referral for abortions or advocating to make abortion legal or safer in their respective countries.
Because the Weldon federal refusal clause is attached to a 2005 federal appropriations bill, it will expire after a year. However, Sen. Barbara Boxer, D-Calif., is working to bring a vote to the floor that would repeal the clause.
For more on the refusal clause and legal challenge, visit http://www.nfprha.org. For more news from The Nation's Health, visit http://www.apha.org/thenationshealth.
The Nation's Health 35(1), 2004. © 2004 American Public Health Association
WTF? (If someone has already posted on this, apologies.)
Refusal Clause Seen as Threat to Reproductive Health, Gag on Information: Law Takes Effect
Posted 02/04/2005
Kim Krisberg
A new law making it easier for health professionals to withhold reproductive health information from patients made its way into the courtroom in January amid concerns that it undermines the nation's family planning programs and risks the health and lives of women.
The law, known as the federal refusal clause, was inserted into fiscal year 2005 omnibus appropriations legislation that was signed by President Bush in December 2004. The clause, inserted by Rep. Dave Weldon, R-Fla., allows a federally funded "health care entity" to deny women information on abortion services, even if state laws mandate that such information be given upon request. States that attempt to enforce their laws can be accused of discrimination, and be denied all of their health, education and labor funding as appropriated under the omnibus bill.
"The overarching principle is that this is a backdoor attempt to gag referrals for abortion, to gag health care providers and to basically intimidate states away from having anything to do with abortion," said Judith DeSarno, president of the National Family Planning and Reproductive Health Association, which filed suit to stop enforcement of the refusal clause. "The precedent here is that you can withhold any kind of information and still get federal dollars."
According to the association, the refusal clause is at odds with numerous regulations attached to the Title X program, the nation's only federal program solely dedicated to providing family planning and reproductive health care to low-income and uninsured women. Organizations that receive Title X funding must agree to a number of requirements that range from blood pressure screenings to sexually transmitted disease testing to giving abortion referrals upon request. Those who violate the terms of Title X grants, DeSarno said, can then be sued or have their federal funds withdrawn. But with the Weldon clause, such requirements can be rendered unenforceable.
"There's a bitter constitutional question here: Can Congress mandate state law through the appropriations process?" DeSarno told The Nation's Health.
The refusal clause could also allow providers to not only sidestep Title X requirements, but state Medicaid laws. For example, some states require that low-income women have access to Medicaid-funded abortions in cases of life endangerment, rape and incest.
According to the Weldon measure, which supporters refer to as a "conscience clause," the legislation protects individuals and institutions from being forced to "provide, pay for, provide coverage of, or refer for abortions." However, there were already measures in place that "protect the religious views of individual medical providers," according to the National Family Planning and Reproductive Health Association. Those who object to giving abortion referrals could always withdraw themselves and refer patients to someone who is willing to provide abortion services information. In fact, the Weldon refusal clause is so vague in its wording that it doesn't actually define what a legitimate objection is, opening the door for any type of objection to fit within the clause's parameters.
"(Weldon's) real intent is to limit access to abortion and the place you start with is information," DeSarno noted.
The wording of the refusal clause is so broad that advocates worry it could be used to affect other reproductive health services as well. According to Rachel Laser, JD, senior counsel at the National Women's Law Center, a "perverse" interpretation of the refusal clause could include certain forms of birth control. For example, if a provider believed emergency contraception was an abortifacient, the Weldon clause could possibly be construed to cover such an objection -- even in states that legally require emergency rooms to provide emergency contraception to rape victims. If used within 120 hours of unprotected sex, emergency contraception can prevent pregnancy from occurring, but it does not induce an abortion.
"This is a horrible gag on information and in conflict with what the nation intended with its family planning program," Laser said.
The refusal clause is also broad in its interpretation of a "health care entity," which it defines as "an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization or plan." Such wording could put states in jeopardy of losing all of the federal funding they received under the omnibus bill if they require Medicaid managed care companies to abide by laws that provide low-income women with abortion services in cases of rape and incest, according to the American Civil Liberties Union.
"This could well reach into other populations, but obviously, the first targets are women who depend on government assistance," Susanne Martinez, vice president for public policy at Planned Parenthood, told The Nation's Health.
The National Family Planning and Reproductive Health Association filed suit on Dec. 13 on the basis that the Weldon federal refusal clause is in conflict with Title X requirements. The association is seeking protection against the clause for its members, which includes almost 4,000 clinics across the nation that receive Title X funds.
The suit, National Family Planning and Reproductive Health Association Inc. v. Ashcroft, had its first hearing on Jan. 5 in U.S. District Court in Washington, D.C. In addition to the association, California Attorney General Bill Lockyer said he was planning to file suit to block the Weldon clause as well, as the state boasts some of the nation's most progressive reproductive health laws.
The Weldon refusal clause is far from the first time that U.S. lawmakers have threatened to withhold funds as a means of restricting abortion information. In 2001, President Bush reinstated the "global gag rule," which blocks non-governmental organizations that receive U.S. global family planning assistance from performing abortions, providing counseling or referral for abortions or advocating to make abortion legal or safer in their respective countries.
Because the Weldon federal refusal clause is attached to a 2005 federal appropriations bill, it will expire after a year. However, Sen. Barbara Boxer, D-Calif., is working to bring a vote to the floor that would repeal the clause.
For more on the refusal clause and legal challenge, visit http://www.nfprha.org. For more news from The Nation's Health, visit http://www.apha.org/thenationshealth.
The Nation's Health 35(1), 2004. © 2004 American Public Health Association
WTF? (If someone has already posted on this, apologies.)
