Kennedy Retires, and the Gag Rule Comes Home

The months leading up to an election are normally quiet ones on Capitol Hill, but if there’s anything we’ve learned with Donald Trump in the White House, it’s that norms mean nothing.

A Gag Rule of Our Very Own

On May 22, the Department of Health and Human Services (HHS) released a proposed change to the rules governing funding for Title X, the nation’s only dedicated family planning program for low income people. Under the proposed rule, no entity receiving Title X grants could “perform, promote, refer for, or support, abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion.”

Providers would also no longer be required to offer all FDA-approved forms of contraception. And they would no longer be required to discuss all pregnancy options with patients. If a clinic decided to only offer “natural family planning” and discuss only adoption and parenting with pregnant patients, that clinic would be eligible for Title X funding. But comprehensive providers — like Planned Parenthood — would not.

Because the rule is an administrative change, rather than a law passed by Congress, there is a lengthy process that has to play out before it can take effect. But without significant pushback, by this time next year, Title X as we currently know it may cease to exist, leaving millions of Americans without access to appropriate, affordable birth control.

2019 Appropriations Process Gets Underway

On June 20, the House Appropriations Committee met to consider the Fiscal Year 2019 State Department and Foreign Operations Appropriations bill. The underlying bill was, as it has been for the past several years, a horror-show of funding cuts and policy restrictions for family planning programs. It codified the Global Gag Rule, barred funding for the United Nations Population Fund (UNFPA), and capped our bilateral family planning funding at $461 million — a $146.5 million cut from current levels.

Four committee members offered amendments designed to undercut these attacks and highlight the importance of reproductive health and family planning programs in our foreign policy:

Ranking Member Nita Lowey (D-NY) offered an amendment to strike the Global Gag Rule and anti-UNFPA language from the bill and replace it with language from the Global HER Act (H.R. 671), which would remove the Global Gag Rule and prevent a future administration from reinstating it;

Rep. Barbara Lee (D-CA) introduced an amendment to strike the Global Gag Rule and anti-UNFPA language and replace it with an earmarked UNFPA contribution of $32.5 million;

Rep. Tim Ryan (D-OH) offered an amendment to strike the $461 million funding cap and replace it with a floor of $575 million — the enacted level for the current fiscal year; and

Rep. Katherine Clark (D-MA) proposed an amendment to require that the annual State Department Human Rights Report include information on “the status of reproductive rights (as defined in the 1994 International Conference on Population and Development Programme of Action and reiterated in the 1995 Beijing Declaration and Platform for Action)” for all countries covered by the report. The amendment was a response to the decision by the Trump State Department to specifically censor such information from this year’s report.

All four amendments failed on party-line votes, with every Democrat present voting in favor and every Republican present voting against.

The Senate Appropriations Committee didn’t wait to get in on the action, meeting to consider its version of the bill the very next day. Again, as has been the case for several cycles, the outcome in the Senate was much different than in the House.

As she has for the past five years, Sen. Jeanne Shaheen (D-NH) sponsored a single amendment to reverse all the harmful family planning provisions in the base bill. The amendment calls for “not less than” $595 million for bilateral family planning programs — $20 million above the current level; strikes the legislative imposition of the Global Gag Rule from the bill and, like Rep. Lowey’s amendment in the House, replaces it with the language of the Global HER Act (S.210); and inserts a $37.5 million U.S. contribution to UNFPA.

On the day of the vote, Rep. Shaheen was at home in New Hampshire recovering from a routine medical procedure. In her stead, the amendment was offered by Sen. Dick Durban (D-IL). Notably, Sen. Lisa Murkowski (R-AK), who has been a reliable supporter of the Shaheen Amendment over the years, chose this year to make a public statement in favor of the measure, telling her colleagues:

This is a little bit of déjà vu all over again. I think we do this every year — and we do have the discussion about abortion — but I think it is repeated every year that this amendment makes zero changes to long-standing statutes and restrictions on U.S. funding for abortion. What this amendment really is about, is about supporting women and girls around the world, which we all ought to be able to come together on.

The Shaheen Amendment ultimately passed, 16-15, with Sens. Murkowski and Collins (R-ME) voting in favor, along with all committee Democrats except Sen. Joe Manchin (WV).

The stark differences in the House and Senate versions of the bill set up a confrontation down the road, but leave international family planning programs in a good position to emerge with a status quo outcome — very much a victory in the current setting.

Kennedy Retirement Leaves Roe Hanging by a Thread

On June 27, Supreme Court Justice Anthony Kennedy announced his retirement. Considered the swing vote on a whole host of issues since the 2006 retirement of Justice Sandra Day O’Connor, Kennedy’s decision to step down gives Donald Trump the opportunity to appoint another justice — and swing the Court to the right for a generation. Trump wasted no time in declaring his intention to choose the next justice from a previously-published list of 25 judges approved by the very conservative Federalist Society.

On July 9, he did exactly that, announcing DC Circuit Court Judge Brett Kavanaugh as his nominee. A former clerk for Justice Kennedy, Kavanaugh has a long track record of hostility toward workers’ rights, gun control efforts, consumer protections, environmental regulations, the Affordable Care Act, and of course, reproductive rights. While on the DC Circuit Court, Kavanaugh authored the dissent in a 6-3 ruling that a pregnant immigrant teenager in federal custody had to be allowed to obtain an abortion. And in 2017, he gave a speech in which he praised former Chief Justice William Rehnquist’s dissent in Roe v. Wade.

Numerous progressive advocacy groups have announced their opposition to the nomination, and a concerted effort is underway to persuade red-state Democrats and pro-choice Republicans Susan Collins and Lisa Murkowski to vote against confirming what could well be the fifth vote to overturn Roe. Hearings are expected in September. A vote was not yet scheduled as of our press deadline, but is expected in the early fall.

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