COVID Law Briefing: Issues and Boundaries of Federalism- Summary

Earlier this year, Public Health Law Watch, in collaboration with members of the George Consortium and other partner organizations, hosted a series of legal briefings related to COVID-19 and legal and policy issues associated with the global pandemic. Experts and scholars joined us for bi-weekly livestreamed discussions on these issues. We invite you to read the summaries of selected episodes below! And, enjoy relistening to the series (linked below and archived on our #COVIDLawBriefing webpage).

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4/7/20: Issues and Boundaries of Federalism

Mod: Nicolas Terry 

Speakers: Wendy Parmet, Elizabeth Weeks 

Professor Parmet and Professor Weeks of the University of Georgia discussed where the leadership in the COVID-19 response had to come from in this weeks #COVIDLawBriefing. While their laws are supreme, the federal government is limited in what they can do vs. the powers of states. This means that although the federal government has the final say when they pass a law, not everything falls under the discretion of Washington. In fact, Professor Parmet discussed how traditionally public health was part of the job of the state government. Going back to 1824 in Gibbons vs. Ogden, quarantine and health laws were used as examples of what would fall under the state's purview. Despite this precedent, Parmet discussed the large impact that the federal government has had in regulating public health in both taxing pharmaceuticals and working on medicaid. This has resulted in public health falling under the “overlapping powers” of the state and federal government.

Then the conversation pivoted to whether the federal level could either issue stay-at-home orders or stop them from being implemented. Although it might be advisable, a nationwide shelter in place order is likely an overstep of federal powers because there is no clear power given in the Constitution that would allow them to do so. Without it being specifically enumerated in the Constitution, the federal government must abdicate power to the states. The interstate commerce clause is perhaps the best precedent for the federal level to intervene but even then this did not clearly fall into that bucket. Professor Parmet suggested that the federal government could offer “carrots or sticks” to states that followed or ignored their lead. This could be done with the federal spending power where the federal government could offer funding for states that followed their plans. The discrimination against “out of staters” and the barriers based on residency also posed a problem for the Professors. Especially in the Northeast, states have tried to stop residents from other states like New York from entering their states. While constitutionally troubling, it is also not based on sound public health evidence. As Professor Parmet said “the virus doesn’t attach based on your license plate.” Check out the rest of what they had to say here. 

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Public Health Law Watch’s COVID Law Briefings are co-sponsored by the Center for Health Policy and Law at Northeastern University School of Law, the Center for Public Health Law Research at Temple University Beasley School of Law, the Network for Public Health Law, and the APHA Law Section.

Fighting the Coronavirus and Protecting the Unhoused

By Leo Beletsky Professor of Law, Northeastern University School of Law and Sterling Johnson Board Member, Angels in Motion; Black and Brown Workers Cooperative

Executive Summary: 

On any given night in the United States, federal government data shows that over 500,000 people do not have a home, a count that dramatically underestimates the scope of the problem. The core problem has consistently been lack of access to affordable housing, brought on by bad policy and refusal to take common-sense, evidence-based approaches. The COVID-19 pandemic has brought this problem into focus, as neighborhood organizers take bold actions after governments refused to – like occupying vacant or unused homes – to provide the policy solution public health experts agree works best: housing the homeless.

Unhoused populations are always vulnerable to health risks and disease, a vulnerability now heightened by the coronavirus epidemic and the spread of COVID-19. People without homes more often come into contact with potentially infected surfaces and people, and those in emergency shelters must congregate in tight spaces and share facilities like showers and laundry. 

Social Justice in COVID-19 Response: The Legal Issues We Have to Talk About

By Scott Burris and Wendy E. Parmet

As the United States attempts to mitigate COVID-19 through social distancing, quarantines and isolation measures, we enter uncharted territory, and face pressing social, epidemiological, and legal questions.

Although the law is not fully settled, extreme measures that shutter businesses and limit social interactions outside of the home are likely constitutional if and when they are reasonably necessary, based on scientific evidence and knowledge, and are the least restrictive means available to stop a significant risk to the public. But adherence to those principles is not the only constitutional issue to consider during this pandemic.

One key issue is how social distancing measures are implemented. Are they being enforced fairly, with exceptions and enforcement following science and evidence? Or are they being implemented in a manner that reflects existing economic, racial or ethnic disparities?

Neutral rules are often enforced in a biased way. Law must be vigilant to ensure that people out for an authorized stroll or heading to an essential job are not treated differently by police because of their skin color.

It is also important that regulations not be applied in a manner that hints of partisanship or censoring. Public health emergency powers are broad, but they do not override core First Amendment rights. In the face of dramatic failures in the government’s handling of the earlier stages of this crisis, the rights of investigative journalists and public employee whistle-blowers merit protection in particular.

Likewise, the legal system has to ensure that people in jails, prisons and immigration detention centers have the same protection from infection and high quality health care as people in condos and gated suburbs. If, by placing someone in detention, the government prevents them from protecting themselves, it must provide for their safety and treatment.

These are familiar constitutional issues, with answers in long-established principles.

The consequences of unprecedented social distancing measures also point to less-common constitutional claims that will test the capacity of the legal system to respond to our deep social inequality. These questions speak as much to the constitution in our minds – our understanding of our social contract – as they do to the one written on parchment.

If, at this strange moment, most of us have been shaken out of our comfortable bubbles of curated facts, we have a chance to think about what we would like our country to be. Revisiting our understanding of our federal and state constitutions is one way to articulate a different vision of what we can fairly expect from our governments and each other.

When basic rights are taken away by legal orders and viruses, the nature of our basic rights and our relationship to the government looks different. Our Constitution and our laws are supposed to create legal environments in which we can strive and thrive and a society we can all be proud and happy to inhabit. As we face COVID-19, we are forced to reexamine what that requires. Are there rights to the satisfaction of basic needs to be found and developed in constitutional provisions that have traditionally been interpreted only as protection against government action?

Certainly we have a right to a government that acts with basic competence and implements its orders fairly impartially.

Beyond that, many of the federal, state and local emergency rules include protection against eviction, and politicians are promising that both businesses and individuals will be funded in some way to hold on until the crisis passes. They’ve promised free testing and universal access to health care, too, and few are suggesting any of this is wrong.

We could see all this as just simply necessary to avert disaster, but once we acknowledge that a basic income, access to health care and housing are essential to both the well-being of individuals and the community writ large, we have to ask why they only kick in during a national crisis.  For millions of Americans, insecurity in housing, health care, and even groceries has long been daily life.

In the U.S., we are used to thinking about a lot of basic human needs as being matters of individual responsibility. COVID-19 forces us see that food, shelter, a resilient disease control system, and access to health care are essentials. For the moment, our government is beginning to recognize its responsibility to ensure these critical functions.

Will it continue to do so once the crisis has abated? Will we need to wait for the next crisis – and surely there will be one – to put these needs more firmly on our national agenda as fundamental rights, and understand their importance to the healthy operation of our country?

At this moment of national concentration and cohesion, we have a chance to say “no.”

This article was originally posted on the Bill of Health blog.

Valuable public health lessons from COVID-19

By Robert I. Field

Never let a pandemic go to waste. You might learn something.

A month, ago how much did you know about self-quarantine, social distancing, contact tracing, flattening the curve, or disease testing kits? Now, most of us know that they may save our life – and the lives of millions of others.

A month ago, could you name the director of the National Institute of Allergy and Infectious Diseases? Now, this government official, Dr. Anthony Fauci, holds the entire country’s welfare in his hands.

A month ago, did you think that hand sanitizer, rubbing alcohol, surgical masks – and toilet paper – would be among the most sought-after consumer products?

We have quickly learned a lot about an essential pillar of our country’s well-being: public health. It is more than the city official who closes a local restaurant or the announcer on a public service video who scolds us about wearing a seat belt. Like the security suite running in the background on your computer, it is the often-hidden support that responds to threats before the entire system crashes.

But if we don’t retain our newly gained knowledge, we will be no better prepared when the next threat emerges. Amnesia can kill.

Here are five key lessons from COVID-19 for all of us to bear in mind in the years ahead.

1.      You never know when you, and everyone around you, will need public health.

Public health threats don’t usually announce themselves in advance, and they can worsen very quickly. The first case of COVID-19 occurred in Wuhan, China last November. In December, hospitals there were treating dozens of cases. In January, the first cases were confirmed in United States and several other countries. Public health infrastructure needs to be there to respond quickly. You don’t wait to buy an umbrella until after it begins to rain.

2.      You don’t hear more about public health because it has been so successful.

Remember when epidemics of polio, smallpox, yellow fever and cholera threatened whole cities? You almost certainly don’t because measures like vaccination, clean drinking water, sanitation and pest control conquered them in this country decades ago, probably before you were born.

3.      Public health is most effective when it is global.

Infectious diseases don’t stop at national borders and never have since the dawn of civilization. It is only through international cooperation that we can hope to control their spread, something that has been haphazard this time. Almost no nation on Earth has been spared from COVID-19. We rely on global monitoring to spot emerging flu strains each year so scientists can develop vaccines before they arrive. The more we cooperate globally, the better protected we are.

4.      Public health transparency is crucial, and a free press is essential to providing it.

Chinese officials kept the public in the dark about COVID-19 until late January, while people moved freely in and out of Wuhan. China lacks a free press to spread the word. Had the Chinese public learned about the outbreak sooner, we might not be facing the current crisis. And transparency builds public trust, without which the current pandemic responses would not be possible.

5.      Our whole economy depends on public health.

Take a look at the stock market. Need I say more?

Those who cannot remember the past are condemned to repeat it, as the saying goes. The lessons of a crisis are of little use if they are not kept in mind after it has passed. COVID-19 is showing us how important it is to keep the security suite running. Even when we don’t see it, we continually rely on public health security so that the threats we don’t yet see are more likely to stay that way.

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Robert I. Field is professor of law and public health at Drexel University. He is also founder, editor and lead writer of the Health Cents blog on Inquirer.com.

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This blog post first appeared as an op-ed in the Philadelphia Inquirer.

Changes to the Health Care Rights Law: proposed rule factsheet

Health Care Rights Law: Proposed Rule Factsheet

Background:

• Section 1557 of the Affordable Care Act (ACA), the Health Care Rights Law (HCRL), prohibits discrimination on the basis of race, color, national origin, sex, age or disability.

• The rule promulgated by the Obama Administration’s Department of Health and Human Services (“the rule”) defines “sex” to include sex stereotyping, gender identity and whether someone has terminated a pregnancy.

• The rule applies to all health programs and activities that receive federal financial assistance through U.S. Department of Health and Human Services (HHS)

• The rule requires that covered entities post a “notice of nondiscrimination” at physical locations, on their websites and in significant publications, giving information on rights under the HCRL, that language assistance is available for free, and how to file a complaint with OCR in the top 15 non-English languages in the entity’s state. 

• The rule also requires that covered entities include taglines with information on how to get language assistance in the top 15 languages spoken in the state, on “significant” mailings.

The Proposed Rule:

• The proposed rule would eliminate the previous definition of “on the basis of sex,” so gender identity and pregnancy termination would no longer be covered in the anti-discrimination rule.

• The proposed rule would also narrow the scope of the entire HCRL, so that it would no longer apply to short-term plans, non-ACA products, or services as a third-party administrator for group health plans.

• Additionally, the rule would eliminate the requirement that covered entities post a notice of nondiscrimination in different languages, and would eliminate the tagline requirement.

The Effect:

• Transgender people and people who have terminated a pregnancy would not be protected from discrimination in health care and health insurance.

• Covered entities would not have to treat individuals consistent with their gender identities; ex. a hospital could assign a transgender woman to a male ward.

• Insurers would be allowed to categorically exclude health services related to gender transition, or deny claims or impose additional benefit restrictions because someone is transgender or has terminated a pregnancy.

• The non-discrimination and language requirements would not apply to Medicare Part B (52.1 million people), self-funded group health plans (50 million), the Federal Employees Health Benefits Program (8 million), or short-term plans.

• Many of the country’s 25 million non-English speaking people would not have adequate access to information on nondiscrimination rules or how to file a complaint with OCR.

You can submit a comment here.

You can find more information on the rule here.

You can find more information on the rule as it relates specifically to trans rights here.

You can find comment templates here and here.

Trump administration rule would undo healthcare protections for LGBTQ patients

By Emmarie Huetteman

A new Trump administration proposal would change the civil rights rules dictating whether providers must care for patients who are transgender or have had an abortion. Supporters of the approach say it protects the freedom of conscience, but opponents say it encourages discrimination.

The sweeping proposal has implications for all Americans, though, because the Department of Health and Human Services seeks to change how far civil rights protections extend and how those protections are enforced.

Roger Severino, the director of the HHS Office for Civil Rights, has been candid about his intentions to overturn an Obama-era rule that prohibited discrimination based on gender identity and termination of a pregnancy. In 2016, while at the conservative Heritage Foundation, he co-authored a paper arguing the restrictions threaten the independence of physicians to follow their religious or moral beliefs.

His office unveiled the proposed rule on May 24, when many people were focused on the start of the long Memorial Day holiday weekend.

The rule is the latest Trump administration proposal to strip protections for transgender Americans, coming the same week another directive was proposed by the Department of Housing and Urban Development that would allow homeless shelters to turn away people based on their gender identity.

The public was given 60 days to comment on the HHS proposal. Here’s a rundown of what you need to know about it.

What would this proposal do?

Fundamentally, the proposed rule would overturn a previous rule that forbids health care providers who receive federal funding from discriminating against patients on the basis of their gender identity or whether they have terminated a pregnancy.

The Trump administration proposal would eliminate those protections, enabling providers to deny these groups care or insurance coverage without having to pay a fine or suffer other federal consequences.

That may mean refusing a transgender patient mental health care or gender-confirming surgery. But it may also mean denying patients care that has nothing to do with gender identity, such as a regular office visit for a bad cold or ongoing treatment for chronic conditions like diabetes.

“What it does, from a very practical point of view, is that it empowers bad actors to be bad actors,” Mara Keisling, executive director of the National Center for Transgender Equality, told reporters.

The proposal would also eliminate protections based on sexual orientation and gender identity from several other health care regulations, like non-discrimination guidelines for the health care insurance marketplaces.

Does it affect only LGBTQ people?

The proposal goes beyond removing protections for the LGBTQ community and those who have had an abortion.

It appears to weaken other protections, such as those based on race or age, by limiting who must abide by the rules. The Trump proposal would scrap the Obama-era rule’s broad definition of which providers can be punished by federal health officials for discrimination, a complicated change critics have said could ease requirements for insurance companies, for instance, as well as the agency itself.

And the proposal erases many of the enforcement procedures outlined in the earlier rule, including its explicit ban on intimidation or retaliation. It also delegates to Severino, as the office’s director, full enforcement authority when it comes to things like opening investigations into complaints lodged under the non-discrimination rule.

Why did HHS decide to change the rule?

The Obama and Trump administrations have different opinions about whether a health care provider should be able to refuse service to patients because they are transgender or have had an abortion.

It all goes back to a section in the Affordable Care Act barring discrimination on the basis of race, color, national origin, age, disability or sex. President Barack Obama’s health officials said it is discrimination to treat someone differently based on gender identity or stereotypes.

It was the first time Americans who are transgender were protected from discrimination in health care.

But President Donald Trump’s health officials said that definition of sex discrimination misinterprets civil rights laws, particularly a religious freedom law used to shield providers who object to performing certain procedures, such as abortions, or treating certain patients because they conflict with their religious convictions.

“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” Severino said in a statement. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives.”

Much of what the Office for Civil Rights has done under Severino’s leadership is to emphasize and strengthen so-called conscience protections for health care providers, many of which existed well before Trump was sworn in. Last year, Severino unveiled a Conscience and Religious Freedom Division, and his office recently finalized another rule detailing those protections and their enforcement.

The office also said the proposed rule would save about $3.6 billion over five years. Most of that would come from eliminating requirements for providers to post notices about discrimination, as well as other measures that cater to those with disabilities and limited English proficiency.

The rule would also save providers money that might instead be spent handling grievances from those no longer protected.

The office “considers this a benefit of the rule,” said Katie Keith, co-founder of Out2Enroll, an organization that helps the LGBTQ community obtain health insurance. “Organizations will have lower labor costs and lower litigation costs because they will no longer have to process grievances or defend against lawsuits brought by transgender people.”

Why does this matter?

Research shows the LGBTQ community faces greater health challenges and higher rates of illness than other groups, making access to equitable treatment in health care all the more important.

Discrimination, from the misuse of pronouns to denials of care, is “commonplace” for transgender patients, according to a 2011 report by advocacy groups. The report found that 28% of the 6,450 transgender and gender non-conforming people interviewed said they had experienced verbal harassment in a health care setting, while 19% said they had been refused care due to their gender identity.

The report said 28% had postponed seeking medical attention when they were sick or injured because of discrimination.

Critics fear the rule would muddy the waters, giving patients less clarity on what is and is not permissible and how to get help when they have been the victims of discrimination.

Jocelyn Samuels, the Obama administration official who oversaw the implementation of the Obama-era rule, said that for now, even though the Trump administration’s HHS will not pursue complaints against those providers, Americans still have the right to challenge this treatment in court. Multiple courts have said the prohibition on sex discrimination includes gender identity.

“The administration should be in the business of expanding access to health care and health coverage,” Samuels told reporters on a conference call after the rule’s release. “And my fear is that this rule does just the opposite.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

New SNAP rule further limits food benefits for unemployed and underemployed people

By Faith Khalik

On February 1, 2019, the USDA published its proposed rule to further limit food benefits for unemployed and underemployed people.

Typically, an able-bodied adult without dependents (ABAWD) can receive Supplemental Nutrition Assistance Program (SNAP) benefits for only 3 months every 3 years, unless they are working, volunteering, or in job training at least 80 hours per month.

States can receive waivers to extend SNAP eligibility for ABAWDs living in areas with high unemployment rates, or with a “lack of sufficient jobs.” Currently, an area qualifies as having a “lack of sufficient jobs” if the unemployment rate is at least 20% higher than the national average. States can combine contiguous areas together and use the average to qualify for a waiver.

The proposed rule creates stricter standards for what constitutes an area having “lack of sufficient jobs,” with the goal of reducing the number of ABAWDs able to receive SNAP waivers. It prohibits waivers for areas with unemployment below 7% and also limits states’ flexibility to combine areas.

Currently, 56% of ABAWDs are subject to the 3 month limit. With the 7% floor in place, 89% of ABAWDs would need to find sufficient work or lose their benefits.

According to the USDA, the rule would take SNAP benefits away from 755,000 people. However, that number assumes the rule would boost work compliance rates from 26% to 33%. If work rates stayed the same, 850,000 people would lose food stamps.

Madison Hardee, a policy analyst and attorney at CLASP, is concerned about the disproportionate effect the rule will have on communities of color. Hardee says discrimination and structural barriers to employment drive higher rates of food insecurity in Black and Latino households. “The most effective way to help people thrive is by addressing existing disparities, not reducing waivers,” she said.

The USDA admits the rule has the potential to harm minority groups, but has not yet stated any mitigation strategies to lessen the impact.

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Click here to submit a formal comment on the rule.

Comment templates can be found here, here and here.

A caravan of migrants carrying smallpox? We’ve seen that before

by Robert I. Field , professor of law and public health at Drexel University.

              You’ve heard the warnings. Supporters of President Trump’s strict immigration policies are spreading alarm about a caravan of Spanish-speaking migrants bringing deadly diseases to our borders. There are even claims that some of them are carrying smallpox.

             If that were true, it wouldn’t be the first time. Caravans of disease-carrying migrants have reached our borders before, and the devastating effects for public health are well known. They spread measles, typhus, cholera and a host of other lethal infectious conditions in addition to smallpox, causing misery and death for countless native-born Americans.

             The first caravan, this one composed of ships, arrived in 1492 from Spain. Its successful voyage led many others to follow from England, France and other countries in Europe, bringing waves of disease-carrying migrants. Within a few decades, the illnesses they carried had sickened or killed thousands of people.

             The early migrants didn’t know they harbored deadly germs. Most of them had developed immunity from early exposure at home. However, they were highly infectious to those who had never been exposed, like the people who lived in America before they arrived.

             But, there is a big difference between the public health consequences of the migrant caravans of past centuries and the one that recently arrived at the Mexican border. We know with certainty that none of the newcomers has smallpox, because that disease was completely eradicated almost 40 years ago. And there is no evidence that they present any serious disease risk. We also have tools for screening and treating them, if they do.

             Border controls today are, of course, essential for protection against countless risks that open borders could present. But debates over immigration policy should focus on real risks and benefits of immigration, not imaginary ones. The health threats from today’s migrants are nothing compared to those brought by the early European newcomers, some of whom are the forebears of those warning about the risks of immigration today.

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This blog post first appeared in the Health Cents blog on Philly.com.

Public Comment: HHS Proposed Revisions to Title X Funding Regulations

Yesterday, along with the George Consortium and in collaboration with the Center for Health Policy and Law at Northeastern University School of Law, we submitted public comments to the Dept. of Health and Human Services (HHS) regarding proposed revisions to Title X Regulations. We offer a reprint of the comments we submitted. 

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Office of the Assistant Secretary for Health
Office of Population Affairs
Attention: Family Planning
U.S. Department of Health and Human Services
Hubert H. Humphrey Building, Room 716G
200 Independence Avenue SW
Washington, DC 20201

Re: Docket Number: HHS-OS-2018-0008, RIN: 0937-ZA00

Public Comment on Proposal to Revise Title X Regulations, Compliance with Statutory Program Integrity Requirements

Dear Assistant Secretary ADM Brett Giroir, MD:

The Center for Health Policy and Law at Northeastern University School of Law[1] and the Public Health Law Watch (PHLW)[2] appreciate the opportunity to make comments on the proposed Department of Health and Human Services (HHS) revisions to 45 CFR Part 59, “Compliance With Statutory Program Integrity Requirements.” The Center for Health Policy and Law is a university center of excellence focused on providing a rich context for students and researchers interested in myriad health-related topics, including public health law, health and human rights, health governance, bioethics, and drug policy. PHLW is a project of the George Consortium, a nationwide network of public health law scholars, academics, experts, and practitioners. It should be noted that these comments have been prepared by the Center for Health Policy and Law and PHLW, but do not represent the view of Northeastern University School of Law, Northeastern University, or individuals affiliated with either the Center or PHLW.

We offer comments on the proposed regulations’ failure to provide for exemptions or protections for providers whose conscience dictates that they counsel and provide medically-appropriate information about abortion and abortion-related services.

These proposed regulations seek, among other things, to eliminate the current requirement that Title X grantees “offer pregnant women the opportunity to be provided information and counseling regarding… pregnancy termination.”[3] On page 25506,[4] the “supplementary information” section invokes “conscience protections” as one justification for eliminating that provision. Specifically, it reasons that this provision conflicts with statutory “conscience protections” shielding health care personnel from engaging in practices conflicting with their moral and religious values. The commentary posits that eliminating the requirement to give women the opportunity to get information about abortion would solve any potential clashes between that provision and conscience provisions.

This reasoning, however, assumes that moral and religious conviction protections only apply when invoked against abortion. But that is simply not true. Dr. Willie Parker, for example, describes his mission to provide women with abortions as a Christian imperative.[5] Refusing to do so, he reasons, would be akin to the biblical Samaritan who refused to help a fallen traveler. An interfaith coalition blesses clinics that provide abortion for upholding the values of autonomy.[6] The late Dr. George Tiller, who was murdered in his church by an anti-abortion extremist, described his work of providing abortions as “a ministry.”[7] Others view providing abortions as a moral duty[8] to provide needed care to women who need help.[9] Some providers and health care workers believe their conscience requires adherence to professional and medical ethics, which require health professionals to provide all relevant, medically-appropriate information to patients, including when patients ask for a full range of family planning and/or abortion-related options and referrals, and when medically-appropriate even in the absence of explicit requests for such information or referrals by the patient.[10]

These proposed regulations change not only disregard the interests and rights of providers and patients whose consciences support ensuring transparency around and access to information related to abortion and abortion-related services, referrals, and counseling, they also ignore the fact that federal law protects the conscience of such providers. On page 25512,[11] the supplementary information section invokes the Church Amendments (codified at 42 U.S.C. 300a-7)[12] by describing its discrimination protections for health care professionals who refuse to perform abortions.  The notice for proposed rulemaking, however, fails to include, even in its footnoted quote of the law,[13] the provisions in the Church Amendments that explicitly also protect the professionals who do perform abortions, as well as those who counsel and/or refer patients to abortion services.[14] The law equally protects those with “reluctance or willingness to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to or consistent with the applicant’s religious beliefs or moral convictions.”[15] The law recognizes that “religious beliefs or moral convictions” are not homogenous and do not operate solely in one direction. To be consistent with this provision of the law, as well as with the Department’s proposed conscience regulations[16], the Proposed Title X regulations should allow for health care providers whose conscience compels them to provide patients with full and medically-relevant information about their reproductive health options, including by providing them with clear and useful referrals to abortion services and providers, even in instances when patients do not explicitly request such referrals.

Sincerely,

Center for Health Policy and Law
Northeastern University School of Law
lawhealth@northeastern.edu  

Public Health Law Watch
phlawwatch@northeastern.edu  

[1] Center for Health Policy and Law, https://www.northeastern.edu/law/health.

[2] Public Health Law Watch, https://www.publichealthlawwatch.org/.

[3] 42 CFR § 59.5(a)(5)(C) (2017).

[4] Compliance with Statutory Program Integrity Requirements, 83 Fed. Reg. 25502 (proposed June 1, 2018) (to be codified at 42 C.F.R. pt. 59).

[5] Stephanie Russell-Kraft, Reclaiming the Moral Imperative for Reproductive Choice. A Q&A with Dr. Willie Parker., The Progressive (Apr. 11, 2017), http://progressive.org/dispatches/reclaiming-the-moral-imperative-for-reproductive-choice.

[6] Caroline Kent, The Religious Coalition Blessing Abortion Clinics Across America, Broadly (May 10, 2018, 10:15 AM), https://broadly.vice.com/en_us/article/a3azz4/religious-coalition-reproductive-choice-abortion-clinic-blessing.

[7] Carole Joffe, Working with Dr. Tiller: Staff Recollections of Women’s Health Care Services of Wichita, 43 Persp. On Sexual And Reprod. Health 199-204 (2011).

[8] Elizabeth Reiner Platt, Many Doctors are Motivated by Their Moral and Religious Beliefs to Provide Abortions. Why Doesn’t HHS Care About Their Consciences?, Public Rights/Private Conscience Project Blog (Mar. 29, 2018), , http://blogs.law.columbia.edu/publicrightsprivateconscience/2018/03/29/hhsconscience/.

[9] Holly Fernandez Lynch & Ronit Y. Stahl, Protecting Conscientious Providers of Health Care, N.Y. Times, (Jan. 26, 2018), https://www.nytimes.com/2018/01/26/opinion/protecting-conscientious-providers-of-health-care.html.

[10] See American Medical Association, Physician Exercise of Conscience, AMA Principles of Medical Ethics, I, II, IV, VI, VIII, IX (2016), https://www.ama-assn.org/delivering-care/ama-principles-medical-ethics. See also American Academy of Physician Assistants, Guidelines for Ethical Conduct for the PA Profession (2013), https://www.aapa.org/wp-content/uploads/2017/02/16-EthicalConduct.pdf .

[11] Compliance with Statutory Program Integrity Requirements, supra note 4.

[12] See 42 U.S.C. §300a-7 (2016).

[13] Compliance with Statutory Program Integrity Requirements, supra note 4.

[14] See 42 U.S.C. §300a-7(c) and (e). See supra note 12.

[15] Id.

[16] Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, 83 Fed. Reg. 3880 (proposed Jan. 26, 2018) (to be codified at 45 C.F.R. pt. 88).

It's Time for Uncomfortable Solutions to the Opioid Epidemic [from The Fix]

We are thrilled to present some work from brand new George Consortium member Abraham Gutman! This piece from The Fix discusses the fact that we need to get creative, and uncomfortable, in addressing the opioid crisis. Be sure to follow Av's great Twitter feed at @abgutman.

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The results of the War on Drugs: an America that is the most incarcerated nation in the world, a sharp decrease in the price of heroin, and a new Jim Crow for Black communities.

Not every problem has a solution that we are comfortable with. The opioid epidemic and the overdose crisis are two examples of such problems. There has been a lot of work by states and cities to tackle the epidemic and mitigate harm. Laws limiting opioid prescriptions have been enacted (controversially), DEA regulations on who can administer treatment were laxed, Prescription Drug Monitoring Programs were founded, and states of emergency were declared.

“The United States has seen a vigorous legislative response to the opioid epidemic,” writes Scott Burris, the Director of the Center for Public Health Law Research at Temple University, in a recent article, “but legislators are running out of easy targets as the most popular ideas are adopted in all the states.

With no more low-hanging fruits left on the tree, and with the epidemic still raging, it is time to confront the solutions that we are less comfortable with. Philadelphia found itself in the middle of this conversation after city officials announced that they would encourage private organizations to operate comprehensive-user engagement sites, commonly known as safe-consumption sites.

While Philadelphia is the first city in which officials gave their blessing to open a safe-consumption site, other cities—including Denver, Seattle, and New York—are currently considering opening such sites. Two weeks after Philadelphia’s announcement, San-Francisco announced that the city is expecting to be the first city with a site coming July 1st of this year.

Safe-consumption sites are a harm reduction measure that has been shown to enhance access to primary health care for people who use drugs, reduce overdose mortality, and reduce transmission of disease such as HIV/AIDS. The evidence further suggests that the sites reduce the level of public consumption of drugs and dropped syringes without causing an increase in drug use, drug trafficking or crime in the vicinity of the site. Last summer the American Medical Association voted to support the development of pilot safe consumption facilities.

The debate about safe-consumption sites is mostly not about the evidence that supports the efficacy of the practice but about whether it is the right path to take. One opponent in Philadelphia wrote, “we don’t need to enable drug addiction. We need to keep kids off drugs in the first place. We need to help addicts who want to stop using.”

The truth is: we don’t know how keep kids off drugs in the first place. Furthermore, medication assisted treatment, the gold standard treatment for opioid use disorder, is heavily regulated on the state and federal level leading to barriers in access.

America spent billions of dollars in an attempt to convince the nation’s youth to “just say no” to drugs. The phrase that was first used by First Lady Nancy Reagan to respond to an elementary school girl in Oakland in 1982 became a national and international campaign, and a myth. Telling kids to “just say no” doesn’t work. In fact, it might have the exact opposite effect.

If we can’t make kids say no, maybe we can prevent anyone from offering them drug in the first place. This was the logic of Donald Trump in his first State of the Union when he declared that “we must get much tougher on drug dealers and pushers” and that “open borders have allowed drugs” to enter the country. In a recent speech in New Hampshire, Trump doubled down on this line of thinking and called for the death penalty for some dealers.

Getting tough on drugs is in no way a new idea, in fact it is almost 100 years old. America conducted a horrifying policy experiment to see if this idea works. This experiment, known as the War on Drugs, was conducted with communities of color as the subjects. The results are an America that is the most incarcerated nation in the world, a sharp decrease in the price of heroin with virtually no change in the number of high school seniors using illicit drugs, and a new Jim Crow for Black communities. Renewed calls to get tough on crime are either driven by blindness to the realities of the War on Drugs, racism, or a combination of both.

Tightening the border is not doing much to prevent drug abuse either. While Trump believes that a wall will prevent drugs from entering the US, most drugs that cross the southern border do so through legal entry ports to the U.S., according to the Drug Enforcement Administration. In fact, some argue that the tightened border security gave rise to proliferation of Fentanyl, a deadly synthetic opioid much stronger than heroin, because drug traffickers can make profits from very small volumes. Executing drug dealers as a means to reduce the supply of illicit drugs is dehumanizing and racist, unconstitutional, and won't work.

If we can’t completely stop illicit drug use, we can at least provide easily accessible treatment. When it comes to opioid use disorder we even have effective treatment to offer: medication-assisted treatment using methadone, buprenorphine, and naltrexone. But access to medication-assisted treatment is far from sufficient to meet the growing need, with some in rural areas having no providers within a 350 mile radius. Investing in treatment is extremely important, however stigma and regulatory barriers from federal law and DEA regulations make increasing access very difficult.

The fight over increasing access to medication assisted treatment is a worthy and necessary fight that we should engage in with full force. That said, we need to be realistic about how long it will take to change established laws, regulations, and hearts and minds. Meanwhile people who use drugs are actively dying from overdose, suffering from injection related wounds, and contracting bloodborne diseases such as Hepatitis B and C and HIV/AIDS.

Safe-consumption sites are in no way a silver bullet that will defeat the opioid epidemic. They are a strong tool that should be utilized to end the overdose crisis. More than 64,000 Americans died in 2016 from drug overdose. Not taking action on evidence-based practices because the solution doesn't feel intuitive should not be an option.

Some still view safe-consumption sites as “enabling” drug use (even though that is not supported by the evidence). “If the current epidemic can teach us anything, it’s that drug use is soaring unassisted,” writes Dr. Sarah Wakeman, the Medical Director of the Substance Use Disorder Initiative at Mass General Hospital. “The time has come to think instead about how we can enable people to stay alive.”

The effort to end the opioid epidemic is a marathon and not a sprint. As a society our goal must be to ensure that as many people who are currently using drugs cross the finish line with us - alive and with the least irreversible damage. The next steps to do that might go against many of our gut instincts but at the end of the day we must trust the evidence and embrace harm reduction measures.

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The original article can be found here.