The New Political Landscape for Reproductive Health

Federal Legislative and Regulatory Action in 2009

January 2010

OVERVIEW

The political landscape at the federal level changed dramatically as a result of the 2008 election. Having a pro-family planning, pro-choice president after eight years in the wilderness yielded many – but certainly not all – of the policy and personnel shifts that reproductive health supporters hoped would flow from an administration diametrically opposed to its predecessor on these issues.

The new Administration‟s pro-reproductive health agenda was aided by the growth in the ranks of reproductive health supporters in both the House and Senate, although the absence of a solid pro-choice majority in either body meant that roadblocks to progress were still commonplace. And despite increasing numbers, the ranks of pro-choice public officials willing to vocally support services that comprise basic health care for women were painfully thin. Years of high-pitched political opposition have taken a toll, with even family planning attracting more than a whiff of controversy – despite near- universal use and support by Americans. And abortion – a service utilized by almost one-third of American women – is still viewed as a political problem of epic proportions by elected officials – including many who self-identify as pro-choice.

Despite these considerable hurdles, the Obama administration and supporters in Congress made important strides toward restoring the role of the U.S. as a leader in sexual and reproductive health issues at home and abroad. During his first week in office, President Obama rescinded the Global Gag Rule, at last allowing U.S. aid to flow to international family planning organizations that use their own non-U.S. funds to offer abortion services or provide information or counseling about abortion. In March, he rescinded the so-called “conscience” regulation put in place in the final days of the Bush Administration that broadened the ability of health workers to refuse to provide care – including reproductive health services they find objectionable. The move was praised as a crucial victory for women's health and reproductive rights, while opponents condemned it as a devastating setback for freedom of religion. In May, the Obama administration took another critical step forward by allowing federal taxpayer dollars to fund significantly broader research on embryonic stem cells, stating that “medical miracles do not happen simply by accident.” The Administration promised to make up for the ground lost under his predecessor.

Many of the President‟s budget priorities for 2010 reflected a welcome change by boosting funding for domestic and international family planning, eliminating ineffective federal abstinence-only grants, and redirecting funding to more robust teen pregnancy prevention programs which include information about contraception. There were incremental steps forward in the context of the annual appropriations process, but health insurance reform dominated the legislative landscape for the latter half of the year.

Heath insurance reform was looked to as a way to expand affordable and accessible insurance coverage for millions of uninsured and underinsured Americans. Organizations that care about women‟s rights pursued reform as an important

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opportunity to eliminate gender rating and to improve coverage of preventive health services such as family planning.

For many national pro-choice groups like the National Partnership, who strongly supported efforts to reform our nation‟s health care system, abortion coverage was a sword of Damocles hanging over them throughout the process. The initial hope that abortion services would not be singled out for exclusion was dashed relatively early in the debate, leaving a bitter and ongoing fight to preserve the status quo on federal abortion policy to assume center stage.

Unfortunately hyperbole, misinformation, and outright distortions characterized the public debate on abortion coverage. Confusion was bred in part by a contingent of anti- choice Democrats and Republicans who continued to rankle congressional leadership throughout the summer and fall with complaints that there was a so-called “hidden abortion mandate” in health care legislation. They were assisted by conservative organizations like the Family Research Council and the U.S. Conference of Catholic Bishops, and by radio talk show hosts such as Rush Limbaugh that incited their conservative base by claiming that the reform bills included “mandatory” coverage of abortion services.

The House completed action on their version of health care reform before Thanksgiving. By Christmas Eve, when the Senate approved its version of the bill, it was abundantly clear that abortion would remain a sticking point until the bitter end. As Congress began to merge the House and Senate bills at the end of 2009, it was clear that pro-choice elected officials and organizations did not have much to work with. The House bill contains egregious language authored by Representative Bart Stupak (D-MI) that would effectively ban insurance coverage of abortion in the newly created exchanges – language that would take away coverage women now have. The Senate agreed to less restrictive, but still unacceptable, language requiring individuals in the exchange who purchase health coverage that includes abortion care to write two checks for every insurance payment – one for abortion coverage and one for all other services. This is an unworkable arrangement that advocates fear will lead insurers and individuals to opt out of plans with abortion coverage.

And finally, the controversy surrounding abortion is punctuated by the tragic murder of Dr. George Tiller, a preeminent abortion practitioner. Dr. Tiller served patients from all over the United States in his Wichita, Kansas clinic. Dr. Tiller was shot to death by an anti-choice crusader on May 31 in the foyer of his church as he handed out the weekly church bulletin. His death serves as a horrific reminder of the danger abortion providers face each day in providing needed health care services to women. Pro-choice members of the House and Senate introduced resolutions acknowledging his death.

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ADMINISTRATIVE ACTION

Global Gag Lifted in First Week of New Administration

On his third day in office, President Obama reversed the „Global Gag Rule,‟ his first important step toward dismantling the Bush-era policies on reproductive health. The Global Gag Rule had prohibited any U.S aid from going to HIV/AIDS clinics, birth- control providers, and other organizations around the world that used their own funds to advocate or provide abortion counseling and services. The rule was signed by President Ronald Reagan in 1984, overturned by President Bill Clinton in 1993, and reinstated by President Bush. The Gag Rule deprived the world's poor women of desperately needed medical care. The Executive Order rescinding the Global Gag Rule was issued one day after the 36th anniversary of the landmark Supreme Court decision Roe v Wade. President Obama issued a statement reaffirming his commitment “to protecting a woman's right to choose.” Obama said, “On the 36th anniversary of Roe v Wade, we are reminded that this decision not only protects women's health and reproductive freedom, but stands for a broader principle: that government should not intrude on our most private family matters.”

Anti-Choice Groups Launch Postcard Campaign on FOCA at Beginning of Term

With the election of Obama, anti-choice groups began the year on the attack. The U.S. Conference of Catholic Bishops and other anti-choice groups launched a nationwide postcard campaign against the Freedom of Choice Act (FOCA), legislation intended to codify Roe v. Wade's protections and guarantee the right to choose for future generations of women. They latched onto a statement Obama had made at a July 2007 Planned Parenthood event, during which he had said signing the bill would be “the first thing I'd do as president.”

Despite this commitment and clear support for the measure by pro-choice groups, all parties agreed that the climate to pursue FOCA was not ideal. Understanding that the bill was unlikely to move and recognizing the bill as a political lightning rod, advocates did not even go so far as to press for introduction of the bill in the 111th Congress. On April 29, President Obama expressed a similar view at a press conference, clearly stating that FOCA was not an important legislative priority.

White House Initiative to Reduce the Need for Abortion

While FOCA quickly fell by wayside, the President consistently expressed his support for a “common ground” agenda throughout the campaign and at the beginning of his term – one that would bring together groups from across the ideological spectrum to talk about programs that work to prevent unintended pregnancies and support women who choose to carry their pregnancies to term. While this mantra offered some opportunities to promote a pro-family planning agenda, it also created some anxiety that abortion rights would take a back seat to less thorny political issues.

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Speculation as to what support for a common ground agenda would look like in the new Administration heated up when President Obama issued an Executive Order on February 5, 2009 establishing the new White House Office of Faith-Based and Neighborhood Partnerships – an idea with its roots in the Bush administration. Obama's order gave the Office and its 11 satellites in federal agencies a policy role, although precisely what that role is remains unclear. Joshua DuBois, a former associate pastor in the Pentecostal church and adviser to Obama, became the Executive Director. However, it was the appointment of self-identified “pro-life” Alexia Kelley as Director of the Faith-Based Office at HHS, formerly the Executive Director of Catholics in Alliance for the Common Good that raised concerns in the reproductive rights community. The stated purpose of the Office is to form partnerships between all levels of government and non-profit organizations, both secular and faith-based, to better serve Americans in need. President Obama asked the Faith-Based Office to focus on four special priorities: 1) strengthening the role of community organizations in the economic recovery; 2) reducing unintended pregnancies, supporting maternal and child health, and reducing the need for abortion; 3) promoting responsible fatherhood and strong communities; 4) promoting interfaith dialogue and cooperation. The Faith-Based Office also coordinates a 25-member Presidential Advisory Council on Faith-Based and Neighborhood Partnerships composed of religious and secular leaders and scholars. The stated purpose of the Advisory Council is to bring together leaders and experts working with faith-based and neighborhood organizations in order to identify best practices and successful models of delivering social services; evaluate the need for improvements in the implementation and coordination of public policies relating to faith-based and neighborhood organizations; and make recommendations for changes in policies, programs, and practices. Appointments to the controversial Council also raised red flags in the reproductive health community when it was apparent that more seats went to religious leaders who are anti-choice than to ones who are openly pro-choice.

Women‟s health advocates celebrated President Obama‟s decision to create, on March 11, 2009, the White House Council on Women and Girls. The stated purpose of the Council is to establish a coordinated federal response to issues that particularly impact the lives of women and girls and to ensure that federal programs and policies adequately account gender issues, including for women of color and those with disabilities. Members of the Council include the head of every federal agency and major White House office. The Council is chaired by Valerie Jarrett, Senior Advisor. Tina Tchen, Director of the White House Office of Public Engagement, serves as its Executive Director. In making the announcement, the Administration stated that the White House Council on Women and Girls would partner with the Office of Faith-Based and Neighborhood Partnerships to explore how the federal government can reduce unintended pregnancies, support maternal and child health, and reduce the need for abortion.

In April, the White House announced that they would be conducting a series of meetings with organizations to solicit ideas to address the Administration‟s priority of supporting maternal and child health and reducing unintended pregnancy and the need for abortion. Throughout the spring and summer, staff from the White House Domestic Policy Advisor‟s Office, the Council on Women and Girls, and the Faith-Based Office

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convened meetings with reproductive health organizations, women‟s groups, and religious groups to discuss a common ground agenda. The National Partnership for Women & Families was one of many organizations invited to participate in the meetings. The White House asked participants to focus on “programs that work” that could be part of a teen pregnancy initiative, with abortion off the table for purposes of the discussion.

President Obama again called attention to his common ground agenda in his University of Notre Dame commencement address in mid-May. Addressing a sharply divided audience, Obama conceded that no matter how much Americans “may want to fudge it … at some level the views of the two camps are irreconcilable … Each side will continue to make its case to the public with passion and conviction,” he said. “But surely we can do so without reducing those with differing views to caricature.” The President said that while “maybe we won't agree on abortion … we can still agree that this is a heart- wrenching decision for any woman to make.” He urged supporters and opponents of abortion rights to “work together to reduce the number of women seeking abortions by reducing unintended pregnancies, and making adoption more available, and providing care and support for women who do carry their child to term.” He also endorsed the drafting of a “sensible conscience clause” to “honor the conscience” of doctors and other medical workers opposed to abortion. Let's “make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women,” he said.

President Obama Takes Critical Step in Addressing Provider Refusal Rule

President Obama lost no time in taking critical steps to reverse a regulation put in place during the final days of the Bush administration. The Bush rule allows doctors and other healthcare workers to opt out of providing health care services they find morally objectionable, like prescribing birth control pills, inserting IUDs, or dispensing emergency contraception to rape victims. The “conscience” rule, entitled Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, was finalized and published in the Federal Register on December 19, 2008. It became effective January 20, 2009, the day President Obama took office. On March 10, 2009, the Department of Health and Human Services (HHS) published a notice in the Federal Register seeking comments on Obama‟s proposal to rescind the Bush regulation.

The harmful regulation dramatically expanded protections for providers under federal laws (the Weldon federal refusal law, the Church amendments, the Coats amendment) which give individuals and institutions receiving federal funds the ability to refuse to provide abortion or sterilization services based on religious or moral objections. The Bush rule had been drafted broadly to cover any “activity related in any way to providing medicine, healthcare or any other service related to health or welfare.” It threatened to jeopardize patients‟ health by providing an unfettered ability for workers and institutions to refuse necessary health care services, information, and referrals that offended their religious beliefs. In finalizing the regulation, the Bush administration ignored numerous comments from Congress, the medical, legal, and women‟s

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communities, and the government‟s own Equal Employment Opportunity Commission, urging that the rule be abandoned.

The March Federal Register notice announced a 30-day period for public comment, after which the Bush regulation could be repealed or modified. Supporters of the rule included the U.S. Conference of Catholic Bishops and the Catholic Health Association, which represents Catholic hospitals. Opponents of the Bush regulation, including the National Partnership for Women & Families, the American Medical Association, and the National Association of Chain Drug Stores, said it could void state laws requiring insurance plans to cover contraceptives and requiring hospitals to offer emergency contraception to rape victims. It could also allow drugstore employees to refuse to fill prescriptions for contraceptives. Opponents also argued that the Civil Rights Act of 1964 already offers broad protection against discrimination based on religion by ensuring that an employer must make reasonable accommodations for an employee‟s practices and beliefs.

Planned Parenthood, the American Civil Liberties Union and several states filed legal challenges to the Bush regulation. Attorney General Richard Blumenthal of Connecticut, who sued in federal court on behalf of his state and several others, issued a statement saying that his suit would remain in effect until the rule is “finally and safely stopped.”

No further actions were taken during the year by either the litigants or the Obama Administration. The Obama administration presumably is still reviewing the tens of thousands of comments submitted to the proposed rule and has not published a final rule. Consequently, the Bush regulation remains in effect.

Administration Lifts Stem Cell Restrictions

President Obama signed an Executive Order on March 9, 2009 lifting the restrictions on federal funding for embryonic stem cell research put in place by the Bush administration in 2001. Advocates and scientists alike cheered the move, deeming it a necessary and long overdue step to advance research that has the potential to regenerate damaged organs and might one day provide a cure for many debilitating diseases. Under the Bush administration, federal funding for embryonic stem cell research was limited to 21 stem cell lines that privately-funded researchers had derived from surplus embryos at fertility clinics before mid-2001. The new policy means that scientists receiving federal money will now be able to work with hundreds of stem cell lines that have been created since 2001 and many more that will be created in the future.

President Obama‟s Executive Order tasked the National Institutes of Health (NIH) with setting guidelines and policy on stem cell research. On July 6, 2009, NIH announced the final guidelines and the creation of a registry of qualifying stem cell lines for use by researchers. These actions were taken within the constraints of existing federal law, which continues to prohibit appropriated funds from being used to create or destroy embryos for research. Therefore, even under the new guidelines, the creation of stem cell lines would still have to be privately funded. In addition, stem cell lines created in

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laboratories by “therapeutic cloning” to study different diseases or derive implants compatible with a patient‟s immune system can‟t be used in federally-funded research.

The new guidelines specify that stem cell lines used in federally-funded research must be derived from unused embryos created for fertility treatments and willingly donated by patients who have given written consent. Donors must have been informed that the embryo would be destroyed for stem cell research and made fully aware of other options, which include donating the embryo to other individuals for use in infertility treatments.

Although some researchers and patient advocates felt the guidelines, as well as the law, are too restrictive, the scientific and advocacy community generally agreed that lifting the broader Bush-era restriction was a major step in the right direction which will vastly expand the number of scientists and types of experiments supported with federal funds. On December 2, 2009 NIH approved 13 additional lines of embryonic stem cells for use in research under the new Obama administration policy and indicated that nearly 100 were awaiting federal approval. Researchers said that they have plans to submit hundreds more for review.

FEDERAL LEGISLATIVE ACTION

Although it seemed like the debate over abortion coverage in health care reform dominated the legislative agenda, initiatives in sex education, abortion access, and domestic and international family planning were also on the 2009 legislative agenda. This section highlights the legislative action that occurred on other reproductive health issues and ends with a detailed account of the health care reform debate.

~ COMPREHENSIVE SEX EDUCATION

Abstinence-Only Out; Evidence-based Comprehensive Sex Education In

One of the most welcome developments in the President‟s Budget for FY 2010 was the call to abandon the “abstinence-only” approach to federally-funded sex education and to create, instead, a new, evidence-based federal effort under the banner of reducing teen pregnancy. The President‟s Budget recommended shifting all of the abstinence-only funding to a new teen pregnancy prevention initiative that includes a grants-to-states program and a separate community-based grant program. Seventy-five percent of the community-based funds would support “comprehensive, evidence-based programs,” which have been proven to delay sexual activity, increase contraceptive use, or reduce teenage pregnancy. Twenty-five percent of funds would support demonstration and research grants to test new models and approaches. Abstinence-only programs adhering to the program requirements presumably would be eligible to receive funding under the latter category.

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The final Labor-HHS spending bill for 2010 hewed closely to the President‟s budget request for community programs. It eliminated all existing funding for abstinence-only- until-marriage programs – including the egregious Community-Based Abstinence Education (CBAE) program, which channels funding to a variety of local providers such as faith-based groups and crisis pregnancy centers. Instead, these funds will be directed to a new evidence-based teen pregnancy prevention initiative, funded at $114.5 million. The final health spending bill directed that the new program be implemented and administered by a new Office of Adolescent Health (OAH) in the Office of the Secretary at the Department of Health and Human Services. No specific funding was appropriated for the office. The Office is expected to coordinate efforts with the Administration for Children and Families (ACF), which previously administered the CBAE program, as well as the Centers for Disease Control (CDC), and other appropriate HHS offices.

Of the total program funding, $110 million will go towards “competitive contracts and grants to public and private entities to fund medically accurate and age appropriate programs that reduce teen pregnancy.” Out of the $110 million, at least $75 million will be grants to programs that replicate teenage pregnancy prevention programs proven effective through rigorous evaluation. An accompanying conference report states that a wide range of evidence-based programs should be eligible for these funds. In addition, at least $25 million will be provided for research and demonstration grants to develop, replicate, refine, and test additional models and innovative strategies for preventing teenage pregnancy. The conference report language states that this smaller pot of funding is intended to go to programs that stress the value of abstinence and provide age-appropriate information to youth that is scientifically and medically accurate. The appropriation also includes $10 million for technical assistance, training, and other supportive activities to assist the newly-established OAH in effectively running the program. An additional $4.5 million will be allocated to program evaluation funding, including longitudinal evaluations, of teenage pregnancy prevention approaches.

Some organizations continued to be concerned that the language does not clarify that qualifying programs should address HIV and STI prevention.

Attempt to Restore Funding for Abstinence-Only in Health Care Reform

While the appropriations process went smoothly, abstinence-only proponents used health care reform legislation as a vehicle to push efforts to continue the $50 million per year Title V program, which provides funding to states for abstinence programs. The legislative mandate to fund Title V, which was first authorized in the welfare reform bill in the mid-90s, was allowed to quietly expire on June 30.

Unhappy that the program had been allowed to lapse, Senator Orrin Hatch (R-UT) offered an amendment during the Finance Committee mark-up of health care reform legislation to revive the failed program. The Committee narrowly approved Hatch‟s amendment by a surprise 12 to 11 vote, with Democratic Senators Kent Conrad (ND) and Blanche Lincoln (AR) siding with the panel's 10 Republicans. Maine Republican Olympia Snowe unexpectedly voted for the measure, despite her public opposition to

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abstinence-only programs and her state‟s refusal of funding since 2005. The approval of the Hatch amendment seemed to come as a surprise to Senator Baucus, who then offered his own amendment to create a more comprehensive program that would teach about abstinence, contraceptives, and life skills, such as financial literacy. Baucus‟ alternate measure passed by a vote of 14-9. It would make money available for education on contraception and prevention of sexually transmitted infections in addition to abstinence. The bill came with a price tag of $75 million annually.

Not wanting to provoke another reproductive health battle on the floor, Senator Reid included both provisions in the Senate health reform bill. Pro-choice advocates lost the battle to remove Title V language from the final Senate bill.

On the House side, the House Energy and Commerce Committee also dealt with abstinence-only issues during the health care reform mark-up. The Committee defeated an attempt to reinstate Title V funding offered by Rep. Lee Terry (R-NE) by a vote of 26- 29. The committee approved an amendment, 33-23, offered by Rep. Lois Capps (D-CA) to create a new five-year, $50 million Healthy Teen Initiative. This initiative would provide grants to states for evidence-based programs aimed at preventing teen pregnancy and sexually transmitted infections, including HIV.

Lawmakers were left to reconcile the competing health care reform measures in the new year.

~ ABORTION ACCESS

President’s Budget Request Continues All Abortion Riders with One Exception

Reproductive rights groups hoped that the President would assert his pro-choice credentials and call for the elimination of the myriad abortion funding restrictions in several federal health programs in his FY 2010 budget. Disappointing the pro-choice community, the President left all but one of these restrictions intact, thereby sanctioning the continuation of federal bans on subsidized abortion services for women who depend on the federal government for their health care or health insurance. The most infamous of these, the Hyde Amendment, prohibits Medicaid from paying for abortions for poor women except in case of rape, incest, or to save a woman‟s life. Restrictions affecting Peace Corps volunteers, women in the military, federal employees, and women in prison also remained unchanged.

The ban on D.C.‟s ability to use its own locally-raised revenue for abortion care coverage was the lone exception, with the President requesting that the FY 2010 Financial Services and General Government bill omit the ban. Given this clear policy directive from the President, advocates focused their efforts on making the D.C. ban a thing of the past. In addition, they chose to focus on federal employees, both because the Senate had voted to lift the ban in recent years and because a win could set the stage for the then- impending health care reform debate.

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District of Columbia Will be Able to Spend Local Dollars on Abortion Services

In a rare pro-choice victory, the District of Columbia will be allowed to use its own locally-raised funds to pay for abortion services for low income women as a result of congressional action. Since 1980, Congress has prohibited the use of federal funds appropriated for D.C. to pay for abortion services except in the limited cases specified under the Hyde amendment, which allows coverage of abortion if a woman‟s life is endangered or she is a victim of rape or incest.

Beginning in 1988, Congress took the additional step of preventing the District of Columbia from using its own funds to provide abortion care for low-income women – a right that all other states have. In general, states may use their own funds to subsidize abortions and 17 states currently do so. This unfair policy was rescinded briefly for two years in 1993 and 1994.

Heeding the call of the President‟s Budget to lift the ban, the Chair of the House Financial Services and General Government Appropriations Committee, Representative Jose Serrano (D-NY), dropped the restriction in his Chairman‟s mark (HR 3170) for FY 2010. Staunch anti-choice Representatives Todd Tiahrt (R-KS) and Lincoln Davis (D- TN) attempted to add back the restriction when the bill was considered by the full Appropriations Committee on July 9, but were thwarted by a vote of 26-33.

Furious that the Appropriations Committee had rejected the D.C. ban, anti-choice members went to the Rules Committee seeking permission to offer an amendment to reimpose the ban during consideration of the bill when it reached the House floor on July 16. Anti-choice members, led by Representative Bart Stupak (D-MI), were further incensed when the Rules Committee denied their request, forcing pro-choice members and supporters of home rule to beat back two separate procedural moves designed to force a floor vote on the language. With Rep. Stupak leading the charge, 39 anti-choice Democrats expressed their anger by voting with Republicans against the rule governing consideration of the bill. Stupak was thwarted, but only by the slimmest of margins, with the rule narrowly approved by a vote of 216-213. Unwilling to accept defeat, anti- choice members continued to rail against what they deemed an unfair process and offered a second procedural “motion to recommit” later in the day. That maneuver failed as well.

After the vote, D.C. delegate Eleanor Holmes Norton breathed a sigh of relief, saying “That was a call that was too close for comfort, and shows why this was the last rider to go. Poor women in this city and the District itself have paid an enormous price for this outrageous ban on the use of local funds for abortions for poor women, a ban imposed only on the District of Columbia.”

The path for removal of the rider on the Senate side was dogged by fewer obstructionist tactics. Like his House counterpart, Financial Services subcommittee Chair Dick Durbin

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(D-IL) omitted the restriction in his Chairman‟s mark for the Financial Services and General Government appropriations bill for FY 2010. Senator Sam Brownback (R-KS) attempted to add back the restriction when the bill was marked up in the Full Appropriations Committee on July 9, but failed by a 13-15 vote.

The Financial Services bill was never considered as a stand-alone measure by the full Senate. Instead, programs in the bill were funded through a series of continuing resolutions. In mid-December, the Financial Services bill was added to a seven-bill omnibus measure signed into law (P.L. 11-117) by the President on December 16.

Efforts to Eliminate Abortion Rider for Federal Employees Fall Short

While there was good news for D.C., efforts to remove the prohibition on abortion coverage under the Federal Employees Health Benefits program did not fare as well. Fearing weaker support and not anxious to provoke a fight over two abortion-related issues in the same bill, House appropriators followed the President‟s lead and maintained the abortion prohibition in the Chairman‟s mark for the Financial Services and General Government bill. No House members moved to take out the restriction during the full Committee mark-up or on the floor.

With the House failing to strip the provision, any hope that the restriction would be removed rested with the Senate. As in prior years, Senator Durbin (D-IL) removed the FEHB coverage restriction from his Chairman‟s mark for FY 2010. Although the removal of the D.C. restriction was challenged during the full Committee mark-up, anti- choice members did not make an effort to put back the FEHB restriction when the full Appropriations Committee marked up its version of the legislation on July 9.

Hope that the Senate Committee‟s stance on the restriction would survive floor action and ultimately prevail in conference dimmed with the full Senate‟s failure to take up the bill on the floor. The delay allowed the issue to become entangled with the issue of abortion coverage in health care reform. Anti-choice members pointed to the FEHB prohibition as both a justification and a model for broader federal policies – a framing that thwarted opportunities for progress in 2009. In the end, the ban was carried forward as part of the omnibus spending package approved in mid-December.

~ DOMESTIC FAMILY PLANNING

Birth Control Discounts for Clinics, University Health Centers Again Possible After Legislative Fix Approved in Delayed 2009 Appropriations Bill

Congress began the 2009 legislative session with key appropriations measures for FY 2009 still unresolved. The omnibus spending package, which contained the Labor-HHS bill, finally passed in March. The bill included a long sought legislative fix closing the loophole in drug pricing laws that led to skyrocketing costs of birth control for many clinics. In 2005, Congress had passed the Deficit Reduction Act, which tightened eligibility for nominally priced drugs. In doing so, Congress inadvertently cut off safety

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net providers not eligible to participate in the Public Health Service‟s drug discount program (known as the “340B” program), as well as every college and university health center, from eligibility for low cost contraception. As a result of the 2009 spending bill, discounted birth control pills could again be made available again on college campuses and family planning clinics serving low income women that do not participate in the 340B drug discount program.

Modest Increase for the Title X Family Planning Program

Given the attention surrounding the President‟s common ground initiative, the budget request for one of the its core goals, preventing unintended pregnancy, fell short of what advocates had hoped for. The President‟s budget proposed to increase funding for Title X by $10 million, a three percent increase that would bring funding to $317.5 million.

During debate over the FY 2010 Labor-HHS-Education appropriations bill, Representative Mike Pence (R-IN) offered an amendment that sought to prohibit Title X family planning funds from going to Planned Parenthood affiliates. The Pence amendment was rejected on July 24, 2009 by a vote of 183-247. A similar amendment had been offered by Pence in 2007 that failed by a narrower margin of 189-231.

The final Labor-HHS bill for FY 2010, approved as part of the omnibus package in mid- December, funds Title X at $317.5 million.

Medicaid Family Planning Expansion: Year Begins with Short-Lived Disappointment but Major Victory Possible in 2010

The first disappointment of the new Administration came in late January when President Obama acquiesced to calls from Republican leaders to remove a provision from a must-pass economic recovery plan that would have permitted states to expand coverage of Medicaid-funded family planning services without going through the cumbersome waiver process. The provision, which had been added to the stimulus package by House Energy and Commerce Chair Henry Waxman (D-CA), was ridiculed by House Minority Leader John Boehner (R-OH) and media pundits including Chris Matthews. On Hardball, Matthews asked why the federal government should have a policy of reducing the number of births, saying “It sounds a little like China.”

Criticized by the reproductive health community for caving to Republican pressure during the stimulus debate, the Administration made an important down payment on its promise to support this policy change by including the Medicaid family planning expansion in the FY 2010 budget request. In the end, the issue didn‟t get raised in the context of appropriations because the language was adopted without controversy as part of the health care reform legislation in both the House and Senate. The willingness of both bodies to include the language left advocates hopeful that the provision would soon become law.

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Revamped Ryan-DeLauro Prevention Bill Receives Blessing of Pro-Choice Community

Prevention First, an omnibus package of pregnancy prevention and sex education legislative proposals, has been viewed by the reproductive health community and supporters in Congress as the gold standard for reproductive health legislation since its first introduction in 2004 by Senators Harry Reid (D-NV) and Olympia Snowe (R-ME). Prevention First has been reintroduced in subsequent legislative sessions, but the media and policy focus shifted this year to an alternative bill. The revamped Preventing Unintended Pregnancies, Reducing the Need for Abortion, and Supporting Parents Act (H.R. 3312) was introduced this past summer by anti-choice Representative Tim Ryan (D-OH) and pro-choice Representative Rosa DeLauro (D-CT). The bill seeks to reduce the need for abortion by expanding pregnancy prevention programs, while also increasing government support for pregnant women and new mothers. This version, unlike the one introduced two years ago, drew a wide range of supporters and was framed effectively as a common ground initiative that attracted support from pro-choice groups as well as high-profile anti-choice but arguably pro-family planning evangelicals such as Reverend Jim Wallis and Reverend Joel Hunter.

The retooled version is much more in line with what many reproductive health advocates have been supporting for years: preventing unintended pregnancies through comprehensive sex education and safe, effective and affordable contraception, and supporting low-income women and their families. Specifically, the bill seeks to reduce the need for abortion by increasing funds for the Title X family planning program; by expanding coverage of contraception under Medicaid; and by authorizing funding for comprehensive sex education.

The reluctance of reproductive health groups to sign on to the earlier version stemmed in large part from concerns that it stigmatized women who chose abortion. The sponsors addressed these concerns to the satisfaction of many groups, including NARAL Pro- Choice America, Planned Parenthood, Religious Coalition for Reproductive Choice, the Sexuality Information and Education Council of the United States, the National Women‟s Law Center, the ACLU, Catholics for Choice and the National Partnership for Women & Families. The new bill also eliminates some of the troubling informed consent provisions contained in an earlier version and makes ultrasound requirement provisions less onerous.

Opponents to contraception and sex education on religious grounds issued endorsements with caveats. Catholics in Alliance for the Common Good, for instance, noted that “preventing the tragedy of abortion requires elected officials to find common ground and support comprehensive efforts to help women and families choose life,” but did not mention contraception or comprehensive sex education.

In discussing the legislation, Rep. Ryan told Chris Matthews of MSNBC‟s “Hardball” on May 19 that “we have to have birth control and contraception offered to these poor women who don't have access to contraception.” He claimed, “there's no other way we're going to be able to reduce [abortions].” Ryan, for his part, tried to convince his anti-

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choice colleagues that the use of contraception must be part of any plan to reduce unintended pregnancies.

By year‟s end, the 44 co-sponsors included no Republicans and only a handful of anti- choice Democrats. Although the measure was introduced with great fanfare, the bill saw no further action during the legislative session

~ INTERNATIONAL FAMILY PLANNING

Some of the most notable gains in the reproductive health arena this year were in the international arena. The Obama administration took on the formidable task of repairing, rethinking and realigning U.S. foreign policies on sexual and reproductive health, assisted by a strong Secretary of State in Hillary Clinton, a larger group of pro- family planning supporters in Congress, and renewed opportunities presented by the 15th anniversary of the Cairo International Conference on Population and Development.

Clinton Appointment Applauded by Reproductive Health Advocates

The President signaled a strong commitment to reproductive rights when he appointed Senator Hillary Clinton (D-NY) to lead the State Department. Clinton clearly recognizes that women‟s rights and empowerment are indispensible ingredients of diplomacy and development. The reassertion of progressive and constructive U.S. leadership on sexual and reproductive health was particularly evident in several Capitol Hill appearances by Clinton, most notably during a pointed exchange in April with Rep. Chris Smith (R-NJ), a leader of the Pro-Life Caucus. In response to a question from Rep. Smith, Clinton said, “We happen to think that family planning is an important part of women's health and reproductive health includes access to abortion that I believe should be safe, legal and rare. I've spent a lot of my time trying to bring down the rate of abortions and it has been my experience that good family planning and good medical care brings down the rate of abortion. Keeping women and men in ignorance and denying them access to services actually increases the rate of abortion. So we disagree and we are now an administration that will protect the rights of women, including their rights to reproductive health care.”

Re-funding UNFPA and Marie Stopes

At the same time that President Obama lifted the Global Gag Rule, he indicated in an accompanying statement that he would also work with Congress to restore funding for the United Nations Population Fund (UNFPA). UNFPA helps to reduce poverty, improve the health of women and children, prevent HIV/AIDS and provide family planning assistance to women in 154 countries. Within two months, the U.S. contributed $50 million – a 130 percent increase over the last contribution in 2001. The U.S. government also allowed donations of contraceptives to once again flow to six African nations working with the British aid agency Marie Stopes International. USAID

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donations had been cut off in the waning days of the Bush administration because Marie Stopes had worked with UNFPA in China.

Family Planning Opponents in Congress Still Willing to Pursue Their Agenda

Although there was good news from the outset, family planning opponents in Congress proposed two unsuccessful Senate floor amendments directly challenging the President‟s actions on the Global Gag Rule and UNFPA. On January 28, 2009, just days after President Obama reversed the Gag Rule, Senator Mel Martinez (R-FL) offered an amendment to an unrelated bill to nullify the repeal. The amendment failed on a lopsided 37-60 vote. The surprise amendment offered to an unrelated children's health insurance bill (H.R. 2) sought to nullify the January 23rd presidential memorandum and prohibit U.S. family planning assistance to “any private, nongovernmental, or multilateral organization that performs or actively promotes abortion as a method of birth control.” The Martinez amendment not only would have reimposed the Global Gag Rule on foreign NGOs, but also would have expanded the restriction to cover eligibility for U.S. family planning assistance for U.S.-based organizations and multilateral organizations.

In early March, the Senate defeated another anti-family planning amendment offered by Senator Roger Wicker (R-MS) to the FY 2009 omnibus appropriations bill. The Wicker amendment was soundly defeated 39-55. The amendment would have made it more difficult for the President to restore funding for UNFPA by removing a provision, originally authored by then-Senator Hillary Clinton (D-NY). The provision allows U.S. funds to be provided to UNFPA and specifies that funds support only designated reproductive health activities in any of the more than 150 countries in which UNFPA works – except for China. Senator Patrick Leahy (D-VT) led the effort to defeat the Wicker amendment.

International Family Planning Funding Gets Boost in FY 2010 Budget Request

President Obama sent Congress his proposed FY 2010 budget recommendations in May. The President‟s request proposed spending $593 million on bilateral and multilateral family planning and reproductive health assistance – a $48 million (9%) increase above current funding levels. The request fell short of the investment necessary to address the unmet need for family planning worldwide, but was nonetheless encouraging in light of the difficult budgetary climate.

Congressional appropriators then bested the president‟s budget increase. This is perhaps not surprising given that the State-Foreign Operations Subcommittees in the House and Senate, which have jurisdiction over family planning and reproductive health issues, are chaired by strong family planning champions - Representative Nita Lowey (D-NY) and Senator Patrick Leahy (D-VT), respectively. In late June, House appropriators approved a foreign aid spending bill that includes $648 million – $50 million above the President‟s request – for “basic reproductive health services,” while retaining a ban on the use of US funds to provide abortion services. The full House

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approved the bill later in the summer after the Rules Committee rejected an amendment that would have explicitly restored the Global Gag Rule.

Senate Support for Permanent Repeal of the Global Gag Rule Doesn’t Survive Conference, but Funding for International Family Planning Gets Boost

The Senate bill approved by the full Appropriations Committee in July included $628.5 million for international family planning, $30 million over the President‟s request and $20 million less than the House. Courtesy of an amendment by Senator Frank Lautenberg (D-NJ), the Senate bill also included legislative language to codify President Obama‟s Executive Order and prevent future presidents from reviving the Global Gag Rule. Lautenberg had offered his amendment during the full Appropriations Committee mark-up. The amendment, which was approved by a 17-11 vote, would have prohibited the President from refusing to fund foreign NGOs solely because they provide medical services, including counseling and referral that are permitted in their country and are legal in the United States. It also prohibits free speech restrictions on foreign NGOs that are not imposed on U.S. organizations receiving U.S. foreign assistance.

Due to time constraints, the Senate never took up the bill as a free-standing measure, and instead passed multiple continuing resolutions, ultimately adding the bill to a seven-bill omnibus appropriations bill (HR 3288) approved by both houses in mid- December and signed into law on December 16.

Because the foreign aid bill never reached the Senate floor and because the House hadn‟t included the permanent Global Gag repeal in its version of the measure, advocates for the language didn‟t have the strongest case for its inclusion in the final omnibus package. Efforts were also hampered by a larger environment tainted by the Stupak- Pitts abortion amendment to the health care reform bill. Although advocates will be exploring potential strategies for securing a permanent legislative repeal next year, the task is unlikely to get any easier in 2010, a congressional election year.

The good news was that the FY 2010 foreign aid spending measure (H.R. 3288) signed into law in mid-December included the higher House-passed funding level for international family planning and reproductive health programs. The omnibus bill included a total of $648.5 million for bilateral and multilateral family planning and reproductive health programs, an increase of more than $103 million or 19 percent above the FY 2009 enacted level and $55 million more than the President‟s budget request. Of the $648.5 million total, $593.5 million is provided to the U.S. Agency for International Development (USAID) for bilateral field and centrally-funded programs and $55 million is earmarked for a U.S. contribution to UNFPA. The $593.5 million allocated for bilateral programs represents an increase of about $98.5 million above the comparable FY 2009 level of $495 million. Funding for international HIV/AIDS treatment and prevention for fiscal year 2010 is set at $5.709 billion – $200 million above 2009 and $100 million above the President‟s request.

Although the omnibus also contained a number of important family planning and reproductive health policy provisions, including the restoration of the U.S. contribution

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to UNFPA, it also contained several restrictions governing UNFPA‟s use of U.S. funds included in previous years‟ appropriations bills. Specifically, UNFPA must maintain U.S. funds in a segregated account, none of which may be spent in China or on abortion. The U.S. contribution to UNFPA is subject to a “dollar-for-dollar” reduction by the amount that UNFPA plans to spend in China. Funds appropriated for UNFPA that are not made available to UNFPA due to the operation of any provision of law, will be transferred to USAID for bilateral family planning, maternal health, and reproductive health activities. The omnibus also contains a host of other significant policy provisions, either in the statute itself or in the accompanying joint explanatory statement, on topics such as HIV/AIDS, condoms, abortion funding, informed consent and referral, population and the environment, population and climate change, microbicides, gender- based violence, and maternal health.

Global Health Initiative: Moving Toward a More Integrated Approach

The Obama Administration further highlighted its commitment to family planning and reproductive health in a new Global Health Initiative, which calls for increased funding for global health programs to $63 billion over the next six years. Of this amount, $12 billion would be devoted to family planning, maternal and child health, and neglected tropical diseases.

The President‟s statement announcing the Initiative calls for a more comprehensive and integrated approach to global health. It states, “The world is interconnected, and that demands an integrated approach to global health.” The Initiative rightly recognizes family planning and reproductive health care services‟ contribution to addressing public health challenges worldwide and reflects the Administration‟s belief in “smart power” – the essential role that cost-effective health care initiatives, including family planning, can have in creating more peaceful and stable countries.

~ HEALTH CARE REFORM: Abortion Care Coverage

Abortion Politics Front and Center in Health Care Reform

President Obama and Democrats in Congress spent much of the year attempting to fix our failing health care system. Despite the vicissitudes of the debate, President Obama‟s health policy goals appear to have survived five different committees in the House and Senate marking up their respective versions of their bill, the raucous town hall meetings of the summer, and the inevitable compromises in the back and forth of a legislative process.

Despite a desire to move quickly on the issues, the optimistic schedule set forth by the President and House and Senate leadership hit snags early and often – with the deadline moving from the 4th of July, to Christmas, to the State of the Union in 2010. Throughout the process, Republican support was nowhere to be found, with Senate Democrats scrambling to secure the 60 votes necessary to avoid a filibuster.

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Throughout the process, reproductive and women‟s health groups were squarely behind the notion of reform, recognizing that the current system has been failing women – who tend to be charged more and get less. In particular, advocates saw health care reform as the crucial opportunity to change policies that preclude maternity care or use a gender rating which leaves women to pay far more than men for similar coverage. Throughout the debate, women‟s health groups pushed forward proposals that addressed the challenges in getting affordable, high-quality, comprehensive health care, as well as coverage related to reproductive health services – from maternity care to family planning to abortion.

Although the bills passed by both the House and Senate contained some important gains for reproductive health, each included unacceptable restrictions on abortion access that go well beyond current law federal restrictions. In fact, the bitter debate to prevent health care reform from restricting abortion access beyond current law left the devastating impression that even pro-choice Members were arguing that the status quo was acceptable.

Senate HELP Committee is First Up

The first committee to enter the health care reform fray was the Senate Health, Education, Labor and Pensions (HELP) Committee – which had been chaired by Senator Ted Kennedy but because of his illness was chaired by Senator Chris Dodd (D- CT) during the mark-up. As expected, abortion was a hot topic. Nearly three dozen anti- choice amendments were offered, but the pro-choice majority prevailed again and again. At the end of the process, abortion was to be treated the same as other health care services. The Senate HELP Committee approved their bill (13-10) on July 15, 2009 on a party line vote.

During the HELP mark-up, Senator Barbara Mikulski (D-MD) offered an amendment to define an additional category of covered preventive services and screenings with no cost sharing as provided for in guidelines to be created by the Health Resources and Services Administration (HRSA). The amendment required contracting with essential community providers (such as community health centers and family planning clinics). The Mikulski amendment was approved by a vote of 12-11, with Senator Robert Casey (D-PA) the lone dissenting Democrat.

Although the amendment didn‟t survive the merging of the Senate HELP and Finance Committee bills, the Mikulski amendment was revived to become the first Democratic amendment when the bill hit the Senate floor. The change of heart by Democratic leaders was prompted in no small measure by the political and public health firestorm created by the release of new mammography screening recommendations by the United States Preventive Services Task Force (described in the next section), a body that figured prominently in health reform legislation. Because the new, controversial guidelines suggested less frequent screening for women, the Mikulski language, which had not specifically addressed mammography, quickly was modified to add a provision authored by Senator David Vitter (R-LA) to clarify that mammograms for women 40-50 years old are covered services.

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Abortion Politics Play Major Role in House Energy and Commerce Health Reform Debate

The Senate HELP Committee, which has a pro-choice majority, was able to beat back attempts to expressly exclude abortion coverage altogether. The House Education and Labor Committee, as well as and the House Ways and Means Committee, were able to do the same. Their pro-choice majorities were able to defeat all anti-choice amendments, allowing abortion to be treated like all other health care services. The House Education and Labor and House Ways and Means Committees voted 26-22 and 23-18, respectively, to approve their bills on July 17, 2009. No Republicans supported the bills and in each committee, 3 Democrats voted against it.

On July 31, 2009, the House Energy and Commerce Committee chaired by Representative Henry Waxman (D-CA) approved its version of health care reform legislation by a vote of 31-28. The debate was turbulent and the final bill was a hard- fought accord with liberal and conservative members of the panel that reflected the tension inside the Democratic Party. Five Committee Democrats voted against the measure, and no Republicans supported it. During Committee deliberations, Chairman Waxman, a hard-nosed negotiator as well as a political pragmatist, defeated repeated challenges from Republicans (and the conservative wing of his own party) to gut the proposals for a public plan or to enact expansive prohibitions for abortion.

Waxman was painfully aware throughout the process that his committee had a sufficient number of anti-choice Democrats (including Rep. Bart Stupak, the Democratic co-chair of the Pro-Life Caucus) and Republicans intent on excluding abortion coverage altogether that a compromise was needed. As a result, Waxman and other pro-choice members were forced to support compromise language on abortion coverage just to get the bill out of committee. Pro-choice Representative Lois Capps (D-CA) had the thankless task of offering an amendment that preserved the status quo – meaning that it prohibited federal funds from paying for abortion care except in narrow circumstances, while allowing private insurance plans to cover abortions paid for with private funds kept separate from federal funds. The Capps amendment won on a narrow 30-28 vote, with critical support from a few anti-choice Democrats.

Capps Amendment is Bitter Pill to Swallow

Although the Capps amendment was supported by the Committee‟s pro-choice Democrats, it was a painful and very concrete acknowledgment that abortion care would not be treated the same as other health care services – a bedrock principle that pro- choice advocates and lawmakers had been reluctant to abandon. Specifically, the language prohibited federal funds from being used to pay for abortion services. It made clear that no health plan could be required to cover abortion care as part of an essential benefits package. Health plans in the newly created healthcare marketplace (known as the “exchange”) would be allowed to offer abortion coverage with the caveat that no federal funds could be used to pay for coverage except in cases of rape, incest and danger to the life of a woman. Health plans in the exchange that offer abortion coverage

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beyond the Hyde exceptions would pay for abortion services with a portion of private premium dollars kept separate from federal funds.

Although pro-choice groups were clear that the Capps language represented a very real and pragmatic compromise, anti-choice members – in particular the anti-choice Democrats that constituted a key group needed to put health care reform over the 218 votes needed for passage – continued to grumble that Capps did not go far enough. They were bombarded by organizations such as the National Right to Life Committee, which attacked Capps' proposal to separate government subsidies from patient premiums that could be used to cover abortion as "a mere bookkeeping sham.” Pro-choice lawmakers pointed out that this approach is currently accepted by Congress in many other spheres outside of the reproductive health context – including with religious organizations that provide social services such as housing, food banks, and job training, with federal dollars.

With anti-choice members of the Energy and Commerce panel unconvinced that Capps was a compromise they could support, Stupak and Pennsylvania Republican Joe Pitts offered an amendment to prohibit coverage of abortion as a required basic benefit of any government or private plan. The amendment was initially approved 31-27. Distraught by the outcome, Rep. Waxman brought up the amendment an hour later for reconsideration, upon which the initial vote was reversed and the amendment failed on a vote of 29-30. Another amendment from Stupak to add “conscience” language was accepted by voice vote. This Stupak amendment essentially codifies the “Weldon” refusal provision – so-named after its author and attached each year to the Labor, Health and Human Services and Education (Labor-HHS) appropriations bill. The Weldon provision says that any federal agency or program and any state or local government receiving Labor-HHS funds cannot discriminate against individuals or entities if they refuse to provide, pay for, provide coverage of, or refer for abortions. The Stupak amendment codifies the Weldon language and extends it to health plans, stating that plans cannot discriminate against individuals or entities based on their refusals to provide abortion care.

Long-Awaited Senate Finance Committee Mark-Up Allows Process to Move Forward

As of early September, four of the five congressional committees of jurisdiction had completed consideration of their respective health care reform bills. The Senate Finance Committee, generally considered the linchpin in the debate, having spent months attempting to craft a bipartisan bill, was the lone holdout. All summer, the White House deferred to Finance Committee Chair Senator Max Baucus (D-MT) as he negotiated with two moderate Democrats (Conrad (ND) and Bingaman (NM)) and three Republicans (Grassley(IA), Enzi (WY), and Snowe (ME)) to put together a bill that would garner bipartisan support prior to introduction. At the same time, Senate liberals continued to push for an overhaul that resembled the House version, which would include more generous subsidies to enable more working-class families and small businesses to buy coverage. Negotiations over the bipartisan bill fell apart and Baucus put forth his bill on September 22. Many argued that Baucus was too patient in trying to accommodate

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Republicans, like Senator Grassley – when the Republicans seemed to be undermining reform efforts and weren‟t likely to support any reform bill. These concerns were well- founded: Two of the three Republican senators participating in the Finance Committee bipartisan talks (Enzi and Grassley) ultimately rejected the Committee bill.

Sen. Baucus‟ Chairman‟s mark took the path of least resistance and included language in his bill that closely resembled the Capps compromise language adopted in August by the House Energy and Commerce Committee. Like the House provision, this language was intended to maintain the status quo – meaning that unacceptable abortion restrictions including the Hyde amendment would remain in place. The decision to include this compromise language – as disheartening as that was – undoubtedly contributed to the Finance Committee‟s decision to reject an even more draconian abortion restriction offered by Sen. Orrin Hatch (R-UT). The Hatch amendment sought to require individuals who wanted abortion coverage to purchase a supplemental policy for abortion care, paid for with private premiums. Sen. Debbie Stabenow (D-MI) described Hatch's amendment as “insulting” to women. Democrats on the committee, along with pro-choice Senator Snowe rejected Hatch‟s argument, saying it would be unfair to require women to purchase separate insurance coverage for abortion services. Such a requirement, Snowe said, would raise privacy issues by asking women to anticipate their need for abortion coverage. “It's discriminating against women,” said committee Chairman Baucus. Baucus pointed out that the bill, as it stood then, hewed to existing laws on federal funding for abortion. “The mark makes it clear that no federal funds will be used for abortion. None. None. It's very clear,” he said. The Hatch amendment failed on a 10-13 vote, with Snowe joining Democrats and Sen. Kent Conrad (D-ND) voting with the Republicans.

A second Hatch amendment, designed to strengthen existing “conscience clause” laws protecting healthcare workers from performing abortions or other services to which they have moral or ethical objections, also failed on a 10-13 vote. Again, Snowe voted with the Democrats and Conrad with the Republicans.

The Finance Committee approved its bill on October 13, 2009, by a vote of 14-9. The Committee met for eight contentious days and considered 135 amendments to the bill. The Finance Committee's endorsement was undeniably a signature moment in the healthcare debate. It moved the bill one step closer to floor consideration in both chambers, with the Finance Committee bill described as the bill that would most closely resemble the final version. Just one Republican, Sen. Olympia J. Snowe of Maine, who had remained non-committal about her vote until it was cast, supported the bill. All eyes had been on Snowe, whose imprimatur was deemed crucial for Baucus and the White House to claim that there was some vestige of bipartisan support and to help create a 60-vote supermajority in the Senate. Snowe‟s vote also represented a victory for the White House, which had heavily courted her. “Is this bill all that I would want? Far from it,” Snowe said in announcing her vote. “But when history calls, history calls.”

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House-passed Bill Includes Abortion Coverage Ban in Health Exchange

The bill that was brought to the House floor included Rep. Capps‟ abortion coverage language. Although many anti-choice Democrats initially supported the Capps compromise on abortion coverage, Rep. Stupak continued to claim that the Capps language did not go far enough to ensure that no federal funds would be used for abortion care. Stupak began a lobbying effort to urge that he be allowed to offer an amendment on the floor that would effectively ban abortion coverage for plans in the exchange and, instead, allow women who wanted abortion coverage to purchase a rider policy with private funds. By late September, Stupak and Pitts were able to collect 181 signatures to a letter to House Speaker Nancy Pelosi (D-CA) and Rules Committee Chairwoman Louise Slaughter (D-NY) requesting that they allow a vote on their amendment to effectively ban abortion coverage for plans in the exchange.

At the same time, anti-choice Rep. Brad Ellsworth (D-IN), who had supported the Capps language during the Energy and Commerce mark-up, shopped some additional legislative language to impose further abortion restrictions in an attempt to maintain anti-choice Democratic support for the underlying bill. His language didn‟t require women to purchase a rider, but instead sought to establish even more stringent segregation requirements between public and private funds for abortion coverage. Although Democratic leaders had hoped that the Ellsworth compromise would secure the handful of votes needed to reach 218, his effort fell short.

Catholic Bishops Flex Political Muscle

In the 10 days leading up to the final vote in November, the U.S. Conference of Catholic Bishops launched what the New York Times called an “extraordinary” lobbying push with a clear message: Either the Stupak amendment got a vote on the floor, or the Catholic Bishops would use all its powers to force members of Congress to back a motion to recommit the bill – a procedural maneuver intended to allow the Stupak‟s anti-choice language to be included in the bill. The Bishops aggressively worked both sides of the political aisle. In addition, Catholic priests across the nation were ordered to sermonize about the issue during weekly services. Some lawmakers reported threats to withhold communion to Catholic members who opposed Stupak.

Pro-choice groups and members in the House thought for most of the week prior to floor consideration of the bill that the Ellsworth compromise would ward off Stupak. However, on the day before the floor vote, House Speaker Nancy Pelosi made a reluctant calculation that to secure passage of health care legislation in the House, the Ellsworth language wouldn‟t work. She would give Stupak the floor vote he had been demanding, knowing that the amendment would prevail.

The bill was considered by the full House on Saturday, November 7, with President Obama going to Capitol Hill to rally support just before the debate began. Although it was clear before the vote that the Stupak amendment would pass, just how big the margin would be was still in question. In the end, it passed by 240-194, with 64 Democrats voting yes, including Representative Ellsworth. More than a handful of the

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Democrats who voted yes on Stupak had pro-choice voting records. Many suspect that these members voted for the amendment because they felt vulnerable in the upcoming midterm elections and/or because they were afraid that a no vote would derail the bill altogether. Others speculated that, because of the timing, the Stupak amendment was never subjected to the kind of rigorous scrutiny that such a controversial proposal would ordinarily receive and that some members were unclear about the impact.The House narrowly approved its health care reform bill by a 220-215 vote.

The Stupak amendment prohibits any health plan in the health care exchange that receives federal funds from offering abortion coverage beyond the Hyde exceptions. Plans could offer abortion coverage only as a separate “rider” for women to purchase with private funds. Private plans in the exchange that do not accept federal subsidies may offer abortion coverage; however, insurance companies must also offer a plan that is otherwise identical but excludes abortion coverage.

Given that an estimated 80 percent of individuals buying insurance through the exchange will be eligible for federal subsidies, it is unlikely that insurance companies would undertake the expense and administrative hassle of creating and offering plans that differ only in the inclusion of abortion coverage. Powerful evidence to support this concern comes from the five states that prohibit coverage of abortion except via such riders. In these states, the rider requirement has meant that abortion coverage is unavailable as a practical matter. It is also unclear, even if insurers offered these plans, whether the provision allowing private plans in the exchange that receive no federal subsidies to include abortion coverage is consistent with other provisions in the law regarding “guaranteed issue” (meaning that applicants cannot be turned down for coverage based on their health status). Thus, the practical effect of the Stupak provision is that abortion coverage paid for with private funds would be banned in the health insurance exchange – both for women eligible for federal subsidies and for women and employers paying 100% of health costs.

Reaction to Approval of Stupak Amendment is Swift and Loud

National abortion-rights advocacy groups and pro-choice lawmakers were outraged, rightly pointing out that the amendment went far beyond the decades-old Hyde amendment. Critics of Stupak argued that by restricting abortion coverage through the so-called exchange, the amendment would limit the availability of abortion care for millions of privately insured women. Those hit hardest would be lower income women who would qualify for federal subsidies to help purchase policies. For his part, Stupak charged that the Democrats‟ compromise proposal, which would have segregated public funds from private funds that could be used to pay for abortions, was tantamount to subsidizing murder.

The public reaction was swift and sharp. Some pro-choice women protested that the Democratic majority has abandoned its platform and traded women‟s health for short- term political success. Many pro-choice Democrats in the House who voted for the bill claimed they had done so in order to move the process forward, with 90 members quickly sending a letter asking the President for a meeting to express their dismay

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regarding the Stupak language. A smaller group of about 40 Democrats, led by Pro- Choice Caucus Chair Diana DeGette (D-CO), threatened to oppose a final measure if it included the Stupak language. Conversely, Stupak and other anti-abortion Democrats threatened to walk away from the legislation if moved too far in the other direction.

Rough Road to Senate Passage of Health Care Reform

Given the House debacle on abortion coverage, pro-choice Senators lobbied Majority Leader Reid hard to reject a broad abortion ban in the bill that would be considered on the Senate floor. Their efforts were helped by the fact that neither of the bills approved by the Senate HELP and Finance Committee included Stupak-type language. Pro-choice lawmakers breathed a sigh of relief when the Senate version of the health care bill, the Patient Protection and Affordable Care Act (H.R. 3590) released on November 19, failed to include Stupak‟s broad ban. Instead, it included language resembling the Capps compromise and gave advocates hope that the compromise strategy crafted by Energy and Commerce, and adapted for inclusion in the Finance bill, would carry the day.

Although pro-choice advocates were encouraged that the Senate bill had language that hewed more closely to the House's scuttled Capps amendment, Reid‟s decision far from settled the issue. The only question was who would take up the Stupak banner on the Senate side. Senator Orrin Hatch (R-UT) had offered a similar amendment during the HELP Committee mark-up and indicated his willingness to take that fight to the floor. More interesting were efforts by anti-choice groups, including the Catholic Bishops, to recruit Democratic support. The Catholic Bishops prevailed upon Senator Ben Nelson (D-NE) to offer the Stupak-type amendment, with Nelson threatening to oppose the bill if his language was not added. However, the anti-choice contingent was faced with a major procedural hurdle. They needed at least 60 votes to add provisions requiring riders to the Senate bill when it came to the floor. Given that the Senate has only about 40 solid pro-life votes (38 Republicans plus Sen. Casey (D-PA) and Sen. Nelson), there was next to no hope of reaching that 60-vote threshold. Despite the long odds, Sen. Nelson introduced an amendment on Dec. 7 that mirrored the Stupak amendment. The amendment was co-sponsored by Senators Hatch (R-UT), Casey (D-PA), Brownback (R- KA), Thune (R-ND), Enzi (R-WY), Coburn (R-OK), Johanns (R-NE), Vitter (R-LA) and Barrasso (R-WY).

Senate Defeats Nelson-Hatch Abortion Restriction 54-45; Approves Bill with Troubling Abortion Coverage Language

In one of the high points of the health reform debate, the Senate defeated the Nelson- Hatch amendment. A Democratic “motion to table” the amendment – a procedural move to kill an amendment – was approved by a vote of 54-45. Senators who spoke in favor of the motion to table included: Baucus (D-MT), Boxer (D-CA), Cardin (D-MD), Dodd (D-CT), Durbin (D-IL), Feinstein (D-CA), Franken (D-MN), Gillibrand (D-NY), Lautenberg (D-NJ), Menendez (D-NJ), Mikulski (D-MD), Murray (D-WA), Reid (D- NV), Shaheen (D-NH), Specter (D-PA), and Stabenow (D-MI). Many pointed out that the language already in the bill prohibiting federal funding for abortion care should be

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sufficient and that to include the Nelson language would plainly discriminate against women, failing to allow them to purchase plans that include a legal medical service.

Pro-choice advocates were especially pleased that Sen. Reid supported the motion, calling the language that was already in the bill a “fair middle ground.” Seven Democrats opposed the motion: Bayh (IN), Casey (PA), Conrad (ND), Dorgan (ND), Kaufman (DE), Nelson (NE), and Pryor (AR).

After the defeat of his amendment, Nelson threatened to withhold his support for the overall bill, forcing Democratic leaders to continue negotiating with him over abortion language. On December 19, with the Christmas recess looming and his reputation on the line, Sen. Reid put forward a manager‟s amendment that included myriad changes to the bill designed to get the 60 votes needed to pass the bill. The manager‟s amendment included a new provision on abortion coverage agreed to by Nelson that was swiftly denounced by activists on both sides of the debate. Despite an effort by Republicans to use every procedural tactic to delay key votes, the Senate agreed to the manager‟s amendment and then voted 60-39 along party lines to approve its health care reform bill at 7 a.m. on Christmas Eve.

Nelson’s Revised Anti-Abortion Language in Senate Bill Unworkable

Nelson‟s abortion provision continues to allow, but does not require, private health plans in the newly created exchange to offer abortion coverage, but with many new and problematic caveats. In seeking to ensure that federal funds are not used to pay for abortion care, the bill requires every enrollee to write two separate premium checks – one for abortion care and one for everything else – and then requires health plans to create separate accounts for the payments they receive. This unworkable provision creates enormous administrative burdens for individuals and health plans alike and threatens to further stigmatize abortion care. Moreover, although the Senate language is perceived to be a modest improvement over the Stupak language, the practical impact of the Nelson requirements is likely to be similar. It is highly unlikely that insurance companies will be willing to follow such an administratively cumbersome system, and they may find it easier not to offer abortion coverage at all. Pro-choice groups also argued that it would further stigmatize abortion coverage and expressed concern that it could lead anti-choice groups to pressure participants in the exchange to enroll in plans that don‟t include abortion coverage, as well as provide a powerful incentive to insurers to forgo coverage.

The Nelson language also requires that there be one plan in the exchange that doesn‟t provide abortion coverage – similar to language in the House. In addition, it includes “conscience” protections for those individuals unwilling to provide abortion services, but abandons earlier iterations that had offered similar protections for those who did provide abortion care.

The Nelson provision also gives state health insurance commissioners oversight in determining whether or not health plans meet the requirements set forth in the bill. This

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state-by-state oversight of such a burdensome and complex process will only serve to further discourage health plans from providing coverage of abortion care.

The final negotiations that led to the Nelson compromise involved Senators Reid, Schumer, Nelson, Boxer, and Murray. Boxer and Murray represented abortion-rights supporters in the negotiations, with Schumer and Reid facilitating discussion between them and Nelson. Despite the bona fides of the pro-choice negotiators, pro-choice advocates and pro-choice lawmakers on the House side blasted the compromise as a deal that would leave women as badly off as with Stupak. House pro-choice caucus chairs Diana DeGette (D-CO) and Louise Slaughter (D-NY) issued a press statement indicating they had “serious reservations” about the new language. Senators Boxer and Patty Murray stood by their compromise, with Boxer saying “You have both sides criticizing it, which means that we did what we had to do; we compromised in a fair way.”

Rep. Stupak could not have disagreed more that the language was a fair compromise. He had teamed up with anti-choice Republicans in the Senate to work against the Nelson language in the Senate-passed bill, and quickly hit the airwaves to complain that the bill used government funds to pay for abortion services. The Family Research Council dismissed the Nelson language as a “phony compromise.” National Right to Life said it was “light years removed from the Stupak-Pitts Amendment” and “solves none of the fundamental abortion-related problems with the Senate bill.”

The approval of the manager‟s amendment in the Senate allowed the bill to pass and left House and Senate leaders to negotiate a final bill prior to the new target of the State of the Union address in late January or early February. Pro-choice advocates ended the year urging their members and elected officials to reject Stupak and make significant improvements to the Nelson language during conference negotiations.

~ HEALTH CARE REFORM: Family Planning and Provider Refusals

While abortion coverage was at the center of the health care debate for the latter half of the year, Congress also addressed other provisions affecting reproductive health services in the health care reform bills.

Family Planning and Minimum Essential Benefits Package

Both the Senate and House bills establish broad categories of services that must be included in an essential benefits package. The broad categories include prescription drugs, ambulatory care, hospitalization, maternity care, and preventive care. Reproductive health advocates are optimistic that this could lead to improved coverage of contraceptive services and supplies; however, family planning, like virtually all other preventive services or prescription drugs is not explicitly mentioned. Although both bills require health plans to cover preventive health services, the Senate-passed bill, as amended by Senator Barbara Mikulski (D-MD), would allow for a broader range of women‟s preventive health services to be both covered and free from cost-sharing.

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Both bills specified that determinations on preventive services be based on those with an A or B recommendation from the U.S. Preventive Services Task Force (USPSTF). The Mikulski amendment recognized that the USPSTF doesn‟t address the full range of preventive services and that their recommendations are not always updated in a timely fashion due to resource constraints. For example, there are no recommendations regarding family planning, although there are some recommendations related to STI screening. In addition to ensuring coverage of family planning services, even small copayments and deductibles can sometimes deter patients from seeking necessary care. The Mikulski amendment doesn‟t spell out the expanded list of services free from coverage or cost sharing. Instead, the amendment leaves it to the Health Resources and Services Administration to determine at a later date.

The House-passed bill states that covered preventive health services “include” USPSTF A or B recommendations – meaning that coverage is not limited to these services. The bill also specifies that there be no cost-sharing for preventive health services receiving an A or B recommendation from USPSTF, meaning that family planning services would be subject to cost-sharing.

State Option to Expand Medicaid Family Planning Services

Both the House and Senate bills expand Medicaid in order to cover more low-income uninsured individuals. The House bill expands Medicaid to individuals up to 150% of the federal poverty level, while the Senate sets the income level at 133%, both a tremendous increase over current coverage. Under the proposals, the federal government would pay the states three years to fund the new Medicaid population, with the states picking up the tab after that – a proposal that left some governors complaining that future costs would bankrupt them.

Importantly, both bills also included a provision that allows states the option to expand access to family planning services through Medicaid without going through a cumbersome administrative waiver process.

Access to Essential Community Providers Such as Family Planning Clinics

The health care reform bills approved by both the Senate and House ensure that plans in the exchange contract with essential community providers (such as family planning clinics, STI clinics, community health centers, and other public health entities eligible to participate in the Public Health Service‟s 340B drug discount program). The bills passed by each chamber contain an expanded definition of essential community providers that includes some “look-alike” clinics (those that don‟t participate in 340B but provide the same services to the same types of clients). These additional providers include some Planned Parenthood clinics not receiving Title X funds that were not eligible to receive funds under the narrower definition contained in the House committee-approved bills.

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This provision will allow some patients to continue to have access to the trusted public health clinics that had been their source for care. In addition, it will allow these clinics to serve as a source of care for newly insured individuals.

Provider “Conscience” Language

Both the Senate and House-passed bills explicitly state that the legislation does not impact federal refusal laws (“conscience” provisions) regarding abortion. Both bills also specify that no individual health care provider or health care facility could be discriminated against because of an unwillingness to provide, pay for, provide coverage of, or refer for abortion. Advocates had fought to extend parallel protections to those “willing” to provide abortion care, but didn‟t succeed in adding that language.

The House bill also includes language based on the Weldon refusal provision, an annual appropriations rider to the Labor-HHS spending bill that says that any federal agency or program and any state or local government receiving Labor-HHS funds cannot discriminate against individuals or entities if they refuse to provide, pay for, provide coverage of, or refer for abortions. The House-passed health reform bill incorporates this language and extends it to health plans, stating that plans cannot discriminate against individuals or entities based on their refusals for abortion care.

The Weldon language has long been opposed by reproductive health advocates because of its sweeping potential for harming women‟s access to full information as required in programs such as the Title X family planning program and states‟ ability to implement a wide range of their own laws, regulations, and constitutional mandates that ensure access to abortion services and referrals.

AGENCY ACTION: CONTRACEPTION, VACCINES, BREAST CANCER

Emergency Contraception

The good news on the emergency contraception (EC) front this year was only tempered by the fact that it took so long to get here. EC had long been the poster child for the assault on scientific integrity under the Bush Administration. In August 2006, the FDA approved over-the-counter access to Plan B emergency contraception for women 18 years and older. This decision came almost 3 years after FDA‟s independent panel of experts recommended that Plan B be made available over-the-counter with no age restriction and voted unanimously that Plan B was safe for non-prescription use.

Vindication and the first signal of some positive momentum for EC came in the form of a court ruling. On March 23, 2009, the U.S. District Court for the Eastern District of New York decided Tummino v. von Eschenbach in favor of the Center for Reproductive Rights, the organization that challenged the FDA‟s treatment of EC. The court held that the FDA acted “arbitrarily” and “capriciously” in restricting over-the-counter use of the

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drug to women 18 and over. The judge harshly reprimanded the FDA for politicizing and delaying its decision on Plan B and ordered that the FDA not only reconsider its decision to impose age restrictions on access to EC, but that they immediately remove the existing age restriction for 17 year old women. The decision also reopened the 2001 Citizen‟s Petition filed on behalf of the public health community requesting OTC access for all emergency contraception products.

The Obama administration announced it would not appeal the court‟s decision. On April 22, 2009 the FDA complied with the District Court order by sending a letter to Plan B manufacturer, Teva Pharmaceuticals, Inc., inviting them to submit an application to market Plan B to 17 year olds. The women‟s health advocacy community is now urging the FDA to approve over-the-counter distribution of an EC product with no age restriction.

Other good news came on July 10, 2009 with the FDA approval of Plan B One-Step, a single-pill emergency contraceptive, to be marketed over-the-counter for women 17 years and older and by prescription for women aged 16 and under. On August 28, 2009, the FDA approved another EC product, Next Choice, the first generic version of Plan B. Next Choice is being sold over-the-counter for women 17 years and older and by prescription for women aged 16 and younger.

FDA Approves New HPV Vaccine, Cervarix, for Females and Gardasil for Boys

Girls and women were given another option for the prevention of cervical pre-cancers and cervical cancer associated with human papillomavirus (HPV) types 16 and 18 (which cause 70 percent of cervical cancers) with the approval of GlaxoSmithKline‟s HPV vaccine Cervarix (GSK). The FDA approved the vaccine for use in girls and young women (aged 10-25) on October 16, 2009.

On October 16, the FDA approved Gardasil for boys and men ages 9-26 to prevent most cases of genital warts as well as rarer cases of anal and penile cancer. The following week, the CDC‟s Advisory Committee on Immunization Practices (ACIP) issued a statement of support for “permissive” (rather than routine) use to prevent genital warts for boys and young men ages 9 to 26. This leaves the decision as to whether to immunize males ages 9-26 who request the vaccine up to their health care professionals. However, the panel did recommend that CDC provide funding for the use of Gardasil in males through the Vaccines for Children program.

At the same meeting, ACIP also voted to recommend the vaccination of females to prevent cervical cancer with either Cervarix, which prevents against HPV types 16 and 18 that can lead to cervical cancer, or Gardasil, which prevents against both 16 and 18 as well as two additional strains that cause genital warts. ACIP had previously approved Gardasil for this purpose.

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Requirement of HPV Vaccine for Immigrant Women Lifted

The CDC responded positively this year to concerns raised by a coalition of more than 100 immigrant, health and women‟s advocacy groups responding to a U.S. Citizenship and Immigration Services rule that added the HPV vaccine to the list of required vaccinations for female immigrants ages 11-26 seeking U.S. citizenship or permanent residency. Advocates were concerned that the rule, which had taken effect on July 1, 2008, unfairly imposed a requirement on immigrant girls and women that was not imposed on U.S. citizens. Advocates also raised concerns that the HPV vaccine requirement was inappropriate because HPV is not the type of highly communicable disease the requirements are intended to address.

In response to these concerns, CDC issued a revised policy on December 14, 2009 that removes the HPV vaccine from its list of requirements for individuals ages 11-26 seeking U.S. citizenship or permanent residency.

U.S. Preventive Services Task Force Mammography Recommendations Unleash Firestorm

The independent, government-appointed U.S. Preventive Services Task Force, in its first reevaluation of breast cancer screening since 2002, recommended on November 17 that doctors stop routinely performing mammograms on most women under 50 and that women get mammograms every other year during their 50s. In addition, the new guidelines recommended against teaching women to do regular self-exams or conducting routine mammograms for women older than 74. The 16-member task force, which was put together by the Health and Human Services Department‟s Agency for Healthcare Research and Quality, said it based its guidelines on new evidence and believed that raising the age range would help prevent overtreatment.

Coming amid the highly charged health care reform debate in the Senate, some questioned whether the new guidelines were actually designed to control spending rather than to improve health. The American Cancer Society, the American College of Radiology, and other experts condemned the change, saying the benefits of routine mammography have been clearly demonstrated and play a key role in reducing the number of mastectomies and deaths related to breast cancer. While the American Cancer Society said it has no plans to change its guidelines, the National Cancer Institute indicated it will reevaluate its recommendations in light of the task force's conclusions.

Other patient advocacy groups and a spectrum of women's health advocates, breast cancer experts, and public health researchers praised the new guidelines, saying they represent a growing recognition that more testing, exams and treatment are not always beneficial.

In response to the public outcry, Health and Human Services Secretary Kathleen Sebelius quickly issued a strong statement intended to put distance between federal policy and the influential panel‟s recommendations, recognizing that the panel‟s new

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recommendations represent a significant departure from existing guidelines and acknowledging they had caused widespread concern. She clarified that recommendations of the task force are not federal policy and will not determine what services were covered by the federal government.

The uproar quickly caught the attention of Congress, where the pending health reform legislation looked to the conclusions of the 16-member USPSTF task force to set standards for what preventive services insurance plans would be required to cover at little or no cost. A group of Republican female lawmakers used the anger over the guidelines as a way to denounce the Democrats‟ broader health care bills, while some Democrats countered that the panel is independent and its recommendations are contradicted by the American Cancer Society.

In the end, the discomfort with the recommendations took on a bipartisan flavor and led Senator Vitter‟s proposal to mandate coverage of routine breast cancer screening for women 40-49 years old to be rolled into Senator Mikulski‟s preventive health amendment.

AGENCY NOMINATIONS

Some Key Nominees Confirmed While Other Slots Remain Unfilled

President Obama nominated former Senator Tom Daschle to be his Secretary of Health and Human Services and Health Reform czar in December of 2008. As a former Senate majority leader, he was expert at guiding controversial bills through Congress, and as the co-author of a book on health care reform, knew a lot about one of the president‟s signature issues. However, his failure to pay substantial taxes that were owed and his sizable income from health-related companies while he worked in the private sector ultimately caused him to withdraw his name from consideration in early February. President Obama quickly named pro-choice Kansas Governor Kathleen Sebelius, who was confirmed by the Senate on April 28, 2009 on a 65-31 vote. While her strong pro- choice credentials caused consternation among some anti-choice Senators, her confirmation process was smooth.

The Senate confirmed Dr. Regina Benjamin as Surgeon General and Peggy Hamburg to lead the FDA, with former Waxman staffer and Baltimore Health Commissioner Josh Sharfstein, M.D. as her principal deputy commissioner. Still, the pace of both judicial and administrative appointments was slow. At year‟s end, many political slots remaining unfilled at HHS – including the head of the Centers for Medicare and Medicaid, the Deputy Assistant Secretary for Population Affairs, and the General Counsel.

Dawn Johnsen’s Nomination Remains in Limbo throughout the Year

At the end of the year, Dawn Johnsen was still awaiting confirmation to head the Justice Department's Office of Legal Counsel. If confirmed, Dawn Johnsen, a law professor at

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Indiana University and former counsel at NARAL Pro-Choice America, would be in charge of the office that formulates the Attorney General's formal opinions and provides counsel on the diciest legal questions, including the handling of Guantanamo Bay detainees and their impending move to the Thomson Correctional Center in Thomson, Ill. Opposition to Johnsen has been especially protracted, and, in part, has targeted her critique of the OLC during the Bush administration.

Johnsen was nominated on January 5 and approved by the Judiciary Committee on a party-line 11-7 vote on March 19, but her nomination was stalled for most of the year amid filibuster threats. Sen. Arlen Specter, at the time still a Republican, was the only committee member to not vote, saying that he wanted to meet with Johnsen to discuss her positions in more detail. He expressed particular concern over a footnote in her 1989 brief in Webster v. Reproductive Health Services and her position on abortion litigation. The footnote to the brief said that it could be argued that a restriction making abortion less accessible is tantamount to “involuntary servitude” because it “requires a woman to provide continuous physical service to the fetus in order to further the state‟s asserted interest.” Johnsen told lawmakers at her hearing that she merely suggested an analogy in the footnote and “never believed the 13th Amendment had any role” in the abortion issue.

Before leaving for Christmas, Sen. Patrick Leahy, the head of the Senate Judiciary Committee, pounded Republicans for stalling Obama's nominations, including Johnsen. President Obama will have to renominate Johnsen in the new Congress in order for her to be confirmed.

JUDICIAL NOMINATIONS

Sotomayor Confirmed to Supreme Court but Judicial Nominees Languish

Judge Sonia Sotomayor, a 55-year-old federal appeals court judge, made history in early August when she was confirmed by the Senate as the third female and first Hispanic Supreme Court justice. Sotomayor, who filled the seat vacated by retiring Justice David Souter, was touted by her supporters as a justice with bipartisan favor and historic appeal. She had served as a judge on the 2nd U.S. Circuit Court of Appeals since 1998, had been named a district judge by President George H.W. Bush in 1992, and was elevated to the federal appeals court by President Clinton.

The Senate vote to confirm Sotomayor was a healthy 68-31. Nine Republicans bucked party leadership and joined a unanimous Democratic caucus in supporting her nomination. While her confirmation was relatively noncontroversial, her comments that a “wise Latina woman, with the richness of her experiences” would reach a better conclusion than a white man “who hasn't lived that life” were relentlessly criticized by opponents, as was her ruling in case Ricci v. DeStefano. The case involved white and Hispanic firefighters in New Haven who alleged that the city discriminated against them

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when it threw out the test results for promotion exams when no blacks scored high enough. The firefighters lost in district court, and then again on appeal. The Second Circuit – with Sotomayor voting with the majority – decided not to hear the case.

At the same time, underlying the debate over Sotomayor was the larger political question of whether the Republican Party risked alienating Hispanic voters by opposing the first Latina nominee. Because Judge Sotomayor was the choice of a president who supports abortion rights at a time when Democrats hold a substantial majority in the Senate, the press and many advocacy groups on both sides in the debate assumed she would be a vote to preserve the Roe decision. This assumption held although Sotomayor had never directly ruled on the Constitution‟s protection of a woman‟s right to abortion. Rather, her opinions that touched tangentially on abortion disputes reached outcomes that in some cases were favorable to abortion opponents, but on grounds other than the right to privacy in reproductive rights decisions – the legal theory underlying Roe v. Wade.

As expected, her views on reproductive rights were scrutinized closely by both sides. Pro-choice organizations, including the National Partnership, backed her nomination after her statement of support for the constitutional right to privacy during her confirmation hearings. Anti-choice groups protested outside the Senate office building during her confirmation hearings and made sure that Norma McCorvey, the plaintiff in Roe who became an abortion protester in recent years, was in attendance and was arrested for disrupting the hearing.

Members of the Judiciary Committee on both sides of the abortion issue repeatedly questioned Sotomayor on the topic of abortion – sometimes directly and sometimes obliquely. While Sotomayor did not directly say how she would rule on a case involving abortion rights, she stated that she views the Roe decision legalizing abortion in the U.S. as settled law reaffirmed by subsequent Supreme Court rulings. Sotomayor also told committee members that Griswold v. Connecticut, the contraception rights case that is the foundation for Roe, was the precedent of the court, so it is settled law. She further said the 1992 ruling in Planned Parenthood v. Casey reaffirmed the core holding of Roe, adding that it is the precedent of the court and settled law in terms of the holding of the court. Critically, she testified that she believed that there is a right to privacy and that the Supreme Court has found it in various places in the Constitution.

Court watchers consider another Supreme Court vacancy likely in the coming months because of the rumored retirement of Justice Stevens.

Few Judicial Nominations Approved in Senate as Republicans Stall

Many lower court nominees (for U.S. District Courts and the Federal Courts of Appeal) have not moved forward due to Republicans‟ willingness to use all manner of stalling tactics. In March, Republican senators went so far as to sign an outrageous letter to the White House warning that they would filibuster any nominee from their home states if they did not approve the choice in advance.

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This use of procedural tactics to block confirmations isn‟t new, although the decision by Senate Republicans to block even noncontroversial nominees as pawns in the larger war over President Obama's agenda and the direction of the federal judiciary is new. This Republican obstruction of uncontroversial nominees undermines the longstanding process of confirming well-qualified nominees who enjoy bipartisan support. This new strategy represents a dizzying reversal of the Republicans position during the Bush years, when they professed to be so upset about Democrats‟ filibustering that their majority leader threatened the “nuclear option,” which would have eliminated the use of filibusters for all judicial nominations. Indeed, the very same Senators who during the Bush years raged against the use of the filibuster are now threatening to use it even against nominees who have bipartisan support.

Advocates complained that the Senate‟s new form of obstructionism is hypocritical especially given how President George Bush had pushed the federal judiciary sharply to the right. In addition, progressive advocates have been disappointed with the Administration‟s pace of nominations and the pace of votes in the Senate on confirmations. Some advocates have also been urging the president to pick more distinctly liberal nominees, complaining that the Administration is missing an opportunity to chip away at the Republican dominance of the courts at a time when Democrats have the chance to make some of these lifetime appointments. They compared Obama‟s record to that of President Bush, who was intent on leaving an ideological imprint on the judiciary, made his nominations quickly and pushed hard to have them confirmed.

In contrast, by the end of Obama‟s first year, he had nominated 30 federal judges (including District Court, Courts of Appeal, and the Supreme Court), with 11 confirmed. According to a report by the Alliance for Justice, President Bush had nominated 65 federal judges and 28 were confirmed in his first year.

CONCLUSION | Year Ahead Likely to Present Challenges

Reproductive health and rights supporters were eager to see the new Congress and White House work together to tackle the long “to do” list in 2009. While a great deal of progress has been made toward undoing the eight years of the Bush administration and setting us on a path toward improved reproductive rights and health, there is still a long way to go.

Early actions by the Administration signaled a revitalized U.S. commitment to realizing the sexual and reproductive rights of women and girls worldwide – as seen in the revocation of the Global Gag Rule, the refunding of UNFPA in the FY 2009 budget, and the appointment of Hillary Clinton as U.S. Secretary of State. In the next year, the U.S. has an opportunity to develop foreign assistance policies and funding that will help generate better sexual and reproductive health outcomes.

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On the domestic front, the Obama administration put together a budget that called for the elimination of abstinence-only spending through HHS – a decision ratified by Congress. This request was coupled with significant new funding for teen pregnancy prevention programs – also a huge step in the right direction that Congress ratified in its 2011 budget. As these programs unfold, we will work to monitor, mold, support and expand these new priorities.

In addition, we will continue to seek adequate funding for critical reproductive health programs, including international family planning and Title X, and support the Administration‟s decision to alter regulatory policies that had hampered research and the delivery of reproductive health care to women in need. This includes the FDA‟s approach to emergency contraception, the provider refusal regulation that was a last- minute vestige of the Bush administration, and embryonic stem cell research.

We will also work to increase funding and improve policies designed to reduce STI infections. The same sort of cultural and economic changes that will help lead to lower rates of unintended pregnancy will help result in fewer STI transmissions. In addition to promoting better access to primary and preventive health care, we look to create an environment that makes it easier for sexually active individuals to use condoms every time, get tested regularly, and to seek treatment as soon as symptoms present.

We hope to advance an abortion rights agenda in the federal arena, where hoped-for progress in 2009 was largely overshadowed by the abortion battles that took center stage in the health care reform debate. Pro-choice members were forced to embrace the goal of maintaining the status quo rather than fighting for federally-funded abortion coverage for federal employees, Medicaid recipients, Peace Corps Volunteers, and women in the military. While the ongoing health care reform fight did not advance our goal of repealing the Hyde amendment, the silver lining is that it has energized advocates to renew this fight going forward. We will work to ensure that the 2009 repeal of the D.C. ban on using local funds for abortion care translates into actual coverage for women in the District and that the repeal is extended in the next appropriations bill. We hope to build on this success to ensure that coverage of abortion care is expanded for those who depend on the federal government for their health care.

Because the health reform bill had cleared many key hurdles but still hadn‟t made it to the finish line at the close of the year, efforts to enact a final bill spilled into 2010. Abortion remains one of a handful of high-profile issues to be resolved. If Congress approves a health care bill and Obama signs it into law, the new legislation, in whichever form it takes, will probably leave significant decisions to the states, where activists and organizations are preparing to mobilize to preserve access to abortion services.

Advocacy groups at the state and national levels are expected to duel over a fresh batch of anti-abortion ballot initiatives intended to change the way women in many states access abortion – such as waiting periods, notification laws, mandatory sonograms and mandated scripts that providers are expected to read to women. State bills to define personhood as beginning at conception are currently being debated. And depending on

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the outcome of health reform, there may be increased efforts to enact state laws banning insurance coverage of abortion.

At the federal level, assuming that health reform is enacted, making sure that policies and programs to implement the new law benefit women and families will be high on our agenda. One of the ways will be to support state efforts to expand Medicaid coverage of family planning services, as permitted under health care reform. We plan to work to maximize the positive impact of the new legislation through information and outreach to women and families. We are also optimistic that increasing insurance coverage of women and families will dramatically increase access to a range of health services, including affordable preventive reproductive health and maternity care. We will work to help craft the needed laws, regulations, and policies to implement and expand any health care reform enacted in 2010.

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