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Sandra Fluke, Gender Reassignment, and Health Insurance – Transcript

Here is an excerpt of Employment Discrimination Against LGBTQ Persons appearing in the Georgetown Journal of Gender and the Law’s Annual Review 2001 between pages 635 and 637 edited by Sandra Fluke and Karen Hu:

III. Employment Discrimination In Provision Of Employment Benefits

Many LGBTQ individuals face discrimination in the provision of employment benefits. Discrimination typically takes two forms: first, direct discrimination limiting access to benefits specifically needed by LGBTQ persons, and secondly, the unavailability of family-related benefits to LGBTQ families. A prime example of direct discrimination is denying insurance coverage for medical needs of transgender persons physically transitioning to the other gender. Denial of family-based employment benefits (including family health insurance, survivor benefits, and time off for family illnesses) is often predicated on a lack of recognition of civil unions, domestic partnerships or co-habitation. Only 33% of all organizations offering spousal benefits include benefits to same-sex partners, and LGBTQ employees in lower paying industries are less likely to be granted suck benefits.

A. Gender Reassignment Medical Services

Transgender persons wishing to undergo the gender reassignment process frequently face heterosexist employer health insurance policies that label the surgery as cosmetic or medically unnecessary and therefore uncovered. In Mario v. P & C Food Markets, Inc., an employee who was denied such coverage brought claims under the federal Employee Retirement Income Security (ERISA) and Title VII. The court rejected the ERISA claim, finding the plaintiff’s mastectomy and hormone therapy were not medically necessary. The court’s ruling was based upon controversy within the medical community regarding that treatment plan. Much of that controversy has been linked to ignorance and bias against transgender persons, and the American Medical Association has declared the lack of coverage to be discrimination. Mario’s rule that gender reassignment treatment is normally not medically necessary forces any individual claiming otherwise to show why his or her case is exceptional. This presumption is the reverse of the prevailing one for Medicaid and Medicare beneficiaries; those plans may not have a blanket denial, but can deny coverage on a case-by-case basis.

There is a relative lack of case law addressing coverage denials under private plans, as well as the difficulty of accessing FMLA leave for recovery from gender reassignment surgeries. By contrast, there are many cases adjudicating claims for Medicaid and Medicare denials of these services, as well as many cases relating to the government’s responsibility to provide prisoners with access to such services. The reason for this lack of cases is unclear. Private employee insurance plans do not more frequently cover this need, so it may be a sign that transgender employees do not see the courts as likely to provide any assistance against private employers.

(This transcript does not contain the citations originally included in the article but they are available in the full copy of the article which can be purchased at the link above)

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Ben Smith, Obama’s Opposition to Born Alive, and the Media – Email Transcript

Stephen Gutowski:

Hello Ben,

Here is the full transcript of the Illinois General Assembly for April 4th, 2002 and the relevant section is from page 31 to 34: http://www.ilga.gov/senate/transcripts/strans92/ST040402.pdf

His argument includes the idea that Born Alive could somehow outlaw abortions all together but it also goes well beyond. He worries about the kind of burden the Born Alive Act would put on the abortionist since it would require a doctor to check the health of any baby that had survived the induced abortion. He basically argues that the abortionist, who is actively trying to abort the child in question, should determine if the child is born alive and should be solely responsible for giving live saving medical treatment if the abortionist decides the child he was actively trying to abort is alive.

It is also important to remember that in Illinois this bill was in response to real world occurrences of children who survived abortions being left to die without receiving medical treatment. The bill was not introduced to end theoretical infanticide but real life infanticide that happened frequently in Illinois.

Here is the best write up, from NRO, as to why this is such a radical stance: http://www.nationalreview.com/articles/225404/why-obama-really-voted-infanticide/andrew-c-mccarthy?pg=2

Here is partial audio of the speech which the Chicago Tribune had posted at the time but is preserved on Jill Stanek’s site:http://www.jillstanek.com/archives/2008/08/baipaobamamp3.html

Here is an embeddable version of that audio clip as well: http://mrctv.org/audio/barack-obamas-speech-against-illinoiss-born-alive-infants-protection-act

Jill Stanek is also the woman who testified in Illinois about her personal experience comforting one of the babies who had survived his abortion lest he be sent to a soiled utility closet to die alone as other babies had.

Here is an early interview she gave to O’Reilly back in 2000 which dealt directly with her personal experience: http://www.youtube.com/watch?v=9duXeLahkV4

Here is a Hannity interview she gave in 2008 which dealt with her personal experience as well as Obama’s opposition to the Illinois Born Alive Infants Protection Act: http://www.youtube.com/watch?v=EuuV6j_s5bY

Let me know if you need anything else. I’ll be very interested to see what you write on this.

Thank you,
Stephen Gutowski

 

Ben Smith:

hey – thanks for sending. this was pretty intensely reported on in ’08, and the testimony is pretty grim.

But — what’s the quote in there where you see Obama arguing for infanticide? Seems to me he’s saying you don’t have to pass a law against doctors killing live children because they don’t do it anyway, and that this is an argument about whether abortion should be legal or not, not about infanticide. It would obviously make the practice of
abortion, legal whether you like it or not, more difficult, expensive, and risky, and it doesn’t seem unreasonable to read that as its aim, though it also seems reasonable to read it as totally in good faith. I’m not in the weeds of the legislation, but that seems to me that that’s the argument.

I do recall that the leading proponent of the legislation in Illinois also made headlines in 2008 by campaigning against condom use in Africa.

Anyway…. thanks for sending, but this notion that because you don’t remember the reporting on something in 2008 (did you cover ’08?), that it’s brand new news — (this is actually more true of the Wright stuff than this case) — does drive me slightly nuts.

best
Ben

 

Stephen Gutowski:

When you say “intensely reported on” who exactly are you talking about? Hannity maybe? I know CBN actually asked Obama straight up about this. But other than that who exactly was “intensely” reporting on this?

Did you do a single story on this at any point? Heck you have barely any recollection of this issue what so ever and have already admitted such. Alexander Burns at your old stomping grounds didn’t even know what Newt was talking about last night when he explicitly brought up Obama’s opposition to the Born Alive Act. If he knew anything about it, or took the time to do a quick Google search, this piece never would’ve been written: http://www.politico.com/blogs/burns-haberman/2012/02/newt-media-never-asked-obama-about-infanticide-except-115267.html

I’m happy to inform you all about the details of this but don’t try to tell me how “intensely reported on” this was because that just isn’t the case.

Or, hey, maybe I’m just mistaken. I’m open to hearing your reasoning for calling this story “intensely reported on” Can you give me the count for network news stories dedicated to this issue? How about debate questions? How about front story pieces done by the New York Times, Washington Post, Politico, or the Los Angeles Times?

You’re right, for the most part, about what he argued. Of course he didn’t say that he was all for infanticide or anything remotely like that. The language he used to describe living children fully that were completely birthed and outside of their mothers’ bodies is cold and depraved but if you don’t feel comfortable making that distinction as a reporter, fine. The language he uses isn’t the story. The incredibly controversial stance and leadership role he took is.

You’ve completely ignored any counter argument or facts and how utterly alone in these positions he was at the time in everything I’ve seen from you on this so far. In fact every single statement you’ve made on this in the last two days, that I’ve seen, has been utterly defensive of the President and his controversial stance on this issue.

I mean all you bring up in this email is what his argument was and how reasonable it was. However you don’t mention the fact that Barack Obama took up a leadership role in opposition to a bill with identical wording to one that NARAL, Barbra Boxer, and every single pro-choice Democrat in the US Senate at the time supported. How is that not major news to you? How is that not incredibly controversial?

As for this being old news I feel like you’ve already forgotten how this got brought up again. A Presidential candidate attacked the fact that Obama broke with the other pro-choice members of his party to oppose a bill with the express purpose of banning infanticide. That’s not news in your mind? Was this so “intensely reported on” in 2008 that a presidential candidate bringing it up in a nationally televised debate isn’t worth even mentioning on the site you run?

After all you certainly felt it was important enough to tweet out that defense of Obama’s opposition last night even though you admitted later to having “misremembered” and being “foggy” on the details. Seems like a follow up after you’ve looked at all the details would be appropriate, no? So what gives?

Thanks,
Stephen Gutowski

 

Ben Smith:

I did cover it in 08 — both it and some of Jill’s wackier views. I now can’t find the posts, which is annoying, but here’s Jill linking one

http://www.jillstanek.com/archives/2008/08/breaking_news_n_1.html

 

Ben Smith:

Also, Google kicked up this roundup of a lot of the reporting, most of which didn’t agree with your interpretation, but which wasn’t absent http://blogs.chicagotribune.com/news_columnists_ezorn/2008/08/bornalive.html

 

Stephen Gutowski:

I appreciate you sending those links along to me but I fail to see how 4 or possibly 5 stories constitute intense coverage. After all I never have, and wouldn’t, claim there was absolutely literally no coverage. But does 5 stories, 1 or 2 from you, 2 from the Chicago Tribune, and 1 from the New York Times provide enough coverage of a story like this? Does it constitute intense coverage?

However, I understand you may not personally have access to how many times the broadcast networks, or anybody, mentioned this story back in 2008 so I can see why you wouldn’t be able to provide those numbers. Luckily the Media Research Center has an exact count we can look to right here: http://www.mrc.org/articles/media-ignore-obamas-radical-abortion-record

“from the launch of his candidacy in January 2007 through the end of the primaries in June 2008, just six out of 1,289 network evening news stories about Obama (0.46%) mentioned his position on abortion; none discussed it in any detail. The media as a whole also punted on Obama’s August 16, 2008 attack on pro-lifers, who in his view, were “lying” about his record as an Illinois state senator of opposing legislation, identical to a federal law, which would have protected infant survivors of abortion. Only a day later, Obama’s own campaign backtracked and admitted that he had indeed voted against this legislation.”

6 of 1,289 mentioned his general position on abortion and none went into detail. That’s over a year and a half where he is actively running for President. Do you honestly believe this issue where the President broke with, basically, his entire party to take up a leadership role in opposing a bill designed to prevent infanticide is as unworthy of coverage as that?

And now a Presidential candidate accuses, in a nationally televised debate, the media of purposely brushing the story aside and that is also unworthy of coverage? Is that what you’re saying here?

Thanks,
Steve

 

Ben Smith:

He didn’t break with his party. He was, like most Dems, lockstep with the abortion rights movement. Which is not news, and thus didn’t get much coverage.

 

Stephen Gutowski:

I’m a bit perplexed by your claim that he didn’t break with his party. The national version of the Born Alive Act passed the house by voice vote without votes recorded against it and passed the senate by unanimous consent. In other words nobody went on the record voting against the final version of the federal bill.

Here is the bill summary from Thomas:  http://thomas.loc.gov/cgi-bin/bdquery/z?d107:HR02175:@@@R

In addition NARAL released a statement declaring they do not oppose the Born Alive Act: http://www.jillstanek.com/NARAL%20-%20Born%20Alive%20001.pdf

However, President Obama’s campaign admitted to the New York Sun that he voted against the 2003 Illinois version of the Born Alive Act which included language identical to the federal bill:

“His campaign yesterday acknowledged that he had voted against an identical bill in the state Senate, and a spokesman, Hari Sevugan, said the senator and other lawmakers had concerns that even as worded, the legislation could have undermined existing Illinois abortion law. Those concerns did not exist for the federal bill, because there is no federal abortion law.”

http://www.nysun.com/national/obama-facing-attacks-from-all-sides-over-abortion/84059/

Given those facts isn’t it fair to say he broke with both his own party and the pro-choice movement?

Thanks,

Steve

 

Ben Smith:

Women’s groups at the national level, whose lead Dems follow, didn’t oppose the federal bill, because there aren’t federal regulations it affected.

Women’s rights groups in Illinois did oppose the IL bill, because they thought it would impact the provision of abortion there.

What was the vote in the IL Senate? It was party line, right? If he was the lone or one of one or two Dems voting no, you’re right and I’m wrong.

(5 short emails are exchanged at this point over permission for publishing this email conversation. They do not deal substantively with the debate at hand which is why I have not included them)

Stephen Gutowski:

Well it’s a bit hard to fully answer the question from what I can see. The 2003 bill was amended unanimously by the committee Obama chaired in order to include the language which was seen in the national bill. However, after that vote the committee voted 6-4 with 1 Democrat not voting at all to keep the bill from being sent to the full senate for a vote.

http://www.jillstanek.com/Obama%27s%20vote%20against%20SB1082%20pdf.pdf

That vote was along party lines but was only among 10 people, which means only 5 Dems ever actually ended up voting with Obama, so it’s hard to claim he had the full support of his entire party at the state level. In fact keeping the bill from a full vote indicates he didn’t have faith the democrat controlled Senate would vote it down, no?

Here is a report from Terry Jeffrey in which two people who were Republican state senators at the time describe in detail these procedures worked. It includes the detail that the unanimous vote on the amendment to the bill was a procedural courtesy:  http://www.creators.com/opinion/terence-jeffrey/more-on-obama-and-babies-born-alive.html

Here is the record from 2003 which shows that the 2003 bill was killed in committee:  http://www.ilga.gov/legislation/BillStatus.asp?DocNum=1082&GAID=3&DocTypeID=SB&LegID=3910&SessionID=3&SpecSess=&Session=&GA=93

-Steve

 

Ben Smith:

Thanks much for looking it up — that’s pretty much what I thought.

So either that committee was, coincidentally, packed entirely with infanticidal outliers, or this was perceived as a more mainline abortion rights/anti-abortion issue. My interpretation, based on some reporting at the time, was the latter. And I do know that the IL abortion rights groups opposed the bill in the state leg; while the national ones didn’t oppose it in the Senate. That my have to do with the fact that state law actually regulates medical care in a way federal doesn’t, or just with differing opinions on its consequences, but … that does strike me as what’s going on here.

Ben

Stephen Gutowski:

I understand what you’re saying but I think that is a very generous (in the President’s favor) reading of what happened. Why should it just be assumed that Obama’s position was mainline because 5 of the 6 Democrats on the committee he chaired voted the line that he set? And if Obama’s position was indeed mainline in his party then why kill the bill in committee at all? After all the Democrats controlled the House, Senate, and Governor’s office so what was the risk?

Additionally why did Obama claim the 2003 bill didn’t include the language making it identical to the national law until proved otherwise by documentation if he believed his position was simply a mainline pro-choice position? In fact he told CBN’s Brody he would have been for the national law but “that was not the bill presented at the state level” which is demonstrably not true.

Why would he try to hide the fact that the bills were identical in language if his opposition to the Illinois version was mainline? From what I’ve read the argument that the identical language would have a different effect on the state level wasn’t employed by the Obama campaign until after it was shown they weren’t telling the truth about the language of the bill. Seems to me they thought Obama’s position would be more palatable if the people thought the language of the Illinois bill differed from the overwhelmingly popular national bill. But it simply and demonstrably wasn’t.

Either way I just don’t see how 5 of 6 Democrats on his committee voting with Obama to ensure the bill doesn’t get a full vote compels the conclusion that Obama’s position was mainline and uncontroversial.

-Steve