Everything Old Is New Again

As Washington readies for the coming election season, President Obama’s last budget battle begins, the Supreme Court considers birth control coverage, and a House panel “investigates” Planned Parenthood. If it feels like we’ve been here before, well…

President Obama Releases Final Budget Outline

In early February, President Obama unveiled the final budget proposal of his presidency. On international family planning, this budget calls for $620 million—a $12.5 million increase over the current level—enacted via an omnibus spending bill passed in December 2015. It also proposes increasing United Nations Population Fund (UNFPA) funding to $35 million—undoing a $2.5 million cut included in that December bill.

On the domestic side, the budget calls for funding Title X at $300 million, a slight increase from the current $286.5 million. While this is unquestionably a positive step, Title X, like international family planning, is still woefully underfunded and unable to meet the current—and growing—demand for care among low-income populations across the United States. The president also proposed an additional $4 million in funding for the Teen Pregnancy Prevention Initiative (TPPI), bringing the total funding for that program to $105 million. TPPI helps support effective, responsible sex education efforts across the country. A similar program, the Personal Responsibility Education Program (PREP), earned an extension—at $75 million annually—for five more years, to 2023. Finally, the budget calls for the elimination of funding for discredited abstinence-only programs.

Though it has been customary since the 1970s for the chairs of the Senate and House Budget Committees—currently Sen. Michael Enzi (R-WY) and Rep. Tom Price (R-GA)—to invite the White House Budget Director to testify about the budget proposal, this year proved to be exceptional. In a polarizing move, the two released a joint statement cancelling the hearings and disinviting the Office of Management and Budget Director from testifying.

From this and other indicators, it looks like the 2017 budget fight will be as bruising as ever.

Groundhog Day at the Supreme Court

On March 23rd, the shorthanded Supreme Court heard oral arguments on a case dealing with the right of employers to refuse to include birth control in their employees’ health plans. But wait, wasn’t there already a case about this a couple of years ago? And wasn’t there some sort of accommodation made for those employers? Yes, and yes. But here we are again, regardless.

The justices considered the case of Zubik v. Burwell, in which the plaintiffs challenged the Obama Administration’s birth control accommodation for religious non-profits. That accommodation, you may remember, which the Obama Administration put in place after the notorious Hobby Lobby decision, allowed any employer who objected to covering birth control to opt out by filing a two-page form notifying the government of its objection. Once notified, the government would work with the insurance company to reach out to affected employees and make sure they were covered independently of their workplace plans. In its majority opinion in the Hobby Lobby case, the court offered exactly this mechanism as an example of an acceptable compromise. One would generally assume that such an endorsement would mean the compromise was unquestionably constitutional. Apparently not in this instance. The Zubik plaintiffs argue that filing the form makes them “complicit” in their employees’ use of birth control, because the form “triggers” their ability to receive coverage. It is, therefore, a substantial burden on their religious freedom.

After oral arguments in which several justices seemed all too ready to agree with the plaintiffs, the court took the highly unusual step of issuing an order requiring additional briefs from all parties. These briefs were to outline possible mechanisms for ensuring birth control coverage without burdening religious practice.

The plaintiffs offered the entirely unworkable suggestion of a separate birth control-only insurance plan, and suggested that any required action on their part that ended with employees having birth control access was unacceptable.

The administration, quite rightly in our view, argued that the plaintiffs’ suggestions were not feasible. They pressed for the court to uphold the current structure, pointing out that unless the court issues an unequivocal decision, anyone who was not a party to the current case would be free to argue that any new accommodation is also an unacceptable burden on their religious practice, and the cascade of lawsuits challenging ever-more-circuitous accommodations will never end.
We expect a decision by the end of June. Or not. The likelihood of a tie vote is quite real.

House Panel “Investigates” Planned Parenthood

In April, the “Select Investigative Panel on Infant Lives” held what became the fifth hearing to discuss allegations of illegal conduct by Planned Parenthood.

House leadership formed the not-at-all-hysterically-named panel after the now-discredited Planned Parenthood “sting” videos surfaced last summer. The heavily edited videos purported to show Planned Parenthood employees violating federal law by profiting from sales of fetal tissue. The creator of those videos, David Daleiden, is currently the subject of a criminal investigation in California and was indicted by a Texas Grand Jury that was convened by an anti-abortion District Attorney to investigate his allegations against Planned Parenthood. Planned Parenthood was cleared of any wrongdoing.

But that verdict, four other House hearings, and 12 separate state investigations of Planned Parenthood (none of which have found any evidence of criminal activity) are apparently not enough for House Republicans. Republican panel members spent their time insisting that they had uncovered evidence of crimes, while Democratic members pointed out that this “evidence” was unsourced and unverified.

Rep. Diana DeGette (D-CO) repeatedly asked panel chair Rep. Marsha Blackburn (R-TN) to either provide explicit sources for her claims or withdraw them. Blackburn refused to do either. The evasions eventually led a furious Rep. Jackie Speier (D-CA) to declare that “[t]his so-called committee is the very definition of a kangaroo court … that disregards the rules of law and justice to validate a predetermined conclusion.”

At the end of the hearing, DeGette reiterated her criticism of the panel’s process, saying that “if people are selling fetal tissue in violation of the law, then we need to have an investigation. But we can’t have some witch hunt based off some things that were taken off of screenshots and charts created by [House] staff … if you want to send it to the Department of Justice for investigation, I’ll guarantee you, they won’t make up little charts with their staffs. They will get to the bottom of it with original documents, and I suggest that’s what you should do if you think there is a criminal violation.”

As of our deadline, House Republicans have not announced any plans to do so.

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