Studies Show: Medicaid Patients Have Worse Access and Outcomes than the Privately Insured

Abstract: Academic literature has consistently illustrated that Medicaid patients—adults and children—have inferior access to health care, and notably poorer health outcomes, than privately insured patients. Due to the program's low reimbursement rates, more and more doctors are refusing to even accept Medicaid. As a result, it is becoming increasingly difficult for Medicaid patients to find access to primary and specialty care physicians. When Medicaid patients are admitted to hospitals, they are often admitted with more serious conditions than those with private insurance. By further expanding this broken program, Obamacare will only exacerbate the situation, continuing to harm many low-income Americans who have no option other than Medicaid. Policymakers should reform Medicaid to allow Medicaid patients access to private insurance in a consumer-driven market.

Established as a fundamental component of President Lyndon Johnson's Great Society, Medicaid is a jointly funded federal and state program that pays for health care for low-income individuals. The academic literature has consistently illustrated that Medicaid patients have poorer access to care, and poorer health outcomes, than privately insured patients. By further expanding this broken program, the Patient Protection and Affordable Care Act - Obamacare - only exacerbates the situation. Policymakers should reform Medicaid to provide consumers with greater access to private insurance in a consumer-driven market.

Medicaid typically pays physicians 56 percent of the amount that private insurers pay.[1] Given these low reimbursement rates, more and more doctors are refusing to accept Medicaid.[2] As a result, it is becoming increasingly difficult for Medicaid patients to find primary care doctors and specialists. When Medicaid patients are admitted to hospitals, they are often admitted with more serious conditions, and in some cases, with a higher level of co-morbidity, than privately insured patients. The peer-reviewed academic literature clearly illustrates Medicaid's problems for children as well as for adults.

Medicaid undermines care for millions of children. Consider, for example, children with asthma, one of the most common chronic diseases affecting children in the United States. A 2001 study published in the Journal of Health Care for the Poor and Underserved compares hospital care for children with asthma who are covered by Medicaid to children with asthma who are covered by private insurance in California, Georgia, and Michigan.[3] The authors found slightly longer length of stay and significantly poorer outpatient care for the children on Medicaid. In terms of outpatient care, the authors specifically found that pediatric Medicaid patients were more likely than privately insured patients to be discharged on subpar medication routines. The authors also found that Medicaid patients generally lacked a consistent source of outpatient care, unlike privately insured patients. These issues with outpatient care suggest that these children are more likely to be re-admitted for hospitalization at a subsequent time in the future.

Adequate access to care is also a serious problem for children on Medicaid. A 2004 study published in Pediatrics examined children’s access to specialty surgeons in Southern California.[4] The researchers surveyed specialty surgeons throughout southern California and found that the surgeons are generally less inclined to accept patients enrolled in Medi-Cal (California’s version of the Medicaid program). The surgeons cited difficult paperwork, administrative burdens, and poor reimbursement rates as reasons for not wanting to take on these patients. The authors consequently caution policymakers about expanding this program, noting that coverage through Medi-Cal does not necessarily signify meaningful access to health care. The authors also suggest that expanding Medi-Cal may in fact exacerbate the existing problems of limited access to care.

Another study published in 2005 in Urology found similar problems with boys’ access to urologic care.[5] The authors surveyed a simple random sample of urologic offices located throughout California in order to determine the offices’ attitudes toward Medi-Cal recipients. Of the offices they found that were willing to see pediatric patients, the authors found that 96 percent of these offices would accept privately insured patients. They also found that only 41 percent of these offices would accept Medi-Cal patients. Three-quarters of the offices that refused to accept Medi-Cal patients were unable to even recommend offices that would.

Furthermore, a recent study published in the New England Journal of Medicine examined pediatric access to specialty clinics in Cook County, Illinois.[6] Sending out research assistants posing as mothers and making phone calls to a random sample of specialty clinics, the study found a significant disparity between access to specialty care for privately insured children and children on Medicaid as well as the publicly funded Children’s Health Insurance Program (CHIP). Specifically, the researchers noted more denials of appointments as well as longer waiting times for Medicaid and CHIP patients than for privately insured patients.

These studies suggest that children on Medicaid lack access to the kind of care that privately insured patients enjoy. As long as the program in its current form remains in place, these problems will persist.

Children are not the only ones Medicaid is failing. A number of academic studies have also pointed out the disparities in health outcomes between adult Medicaid recipients and those who are privately insured.

A 1993 study published in the New England Journal of Medicine found that breast cancer patients in New Jersey were often diagnosed with more advanced stages of the disease and had higher risks of death if they received their insurance coverage through Medicaid instead of private insurance.[7] These findings have been corroborated by a number of subsequent studies looking at a variety of serious illnesses:

A 2000 study published in Cancer examined health outcomes of breast cancer patients in Florida. The study found that, as a result of later diagnoses, Medicaid patients have higher mortality rates than patients who are covered by commercial fee-for-service insurance.[8] A 2000 study published in the American Journal of Public Health that examines colorectal cancer treatments and outcomes found that Medicaid patients not only had higher mortality rates, but were also less likely to receive cancer-directed surgery, than patients using commercial fee-for-service insurance.[9] A 2001 study published in Cancer compared health outcomes for a variety of cancers for patients in Michigan. The study found that Medicaid patients had significantly higher rates of occurrence as well as higher risks of death for breast, cervix, colon, and lung cancers compared to non-Medicaid patients. The study also found that Medicaid patients had a higher risk of being diagnosed with these cancers at later stages.[10] A 2003 study published in the Archives of Internal Medicine that compares health outcomes for colorectal, lung, prostate, and breast cancer in Kentucky for a variety of insurance classifications also found similar results. For all four illnesses, the authors found that survival rates are markedly higher for privately insured patients than for Medicaid patients.[11]

Most recently, a 2010 study in the Journal of Hospital Medicine found similar results for non-cancer-related illness. In this study, the authors examine the relationship between insurance status and health outcomes for myocardial infarction, stroke, and pneumonia patients.[12] The authors statistically analyzed a nationally representative hospital database and noticed, even after adjusting for factors such as age, gender, income, other illnesses, and severity, higher in-hospital mortality rates for Medicaid patients than for privately insured patients. Additionally, even after adjusting for these factors, the study found that Medicaid patients hospitalized for strokes and pneumonia also ran up higher costs than the privately insured, as well as the uninsured.

A number of academic studies over the years have illustrated that Medicaid patients have consistently had poor access to care and that Medicaid fails to meet important needs:

A 1992 study in the Journal of the American Medical Association examined hospitalizations in Massachusetts and Maryland.[13] The study found that Medicaid and uninsured patients were statistically more likely than privately insured patients to be hospitalized for avoidable conditions such as pneumonia and diabetes. A 2007 study in Health Affairs examined access to specialty services for patients who receive primary care from community health centers.[14] The study found that Medicaid recipients have significantly more difficulty accessing specialty care than privately insured patients. A 2012 study in Health Affairs examined physicians’ willingness to accept new patients. Using survey data from a nationally representative sample, the study found that nearly one-third of physicians nationwide will not accept new Medicaid patients. Doctors in smaller practices, as well as doctors in metropolitan areas, are among the least inclined to accept new Medicaid patients.[15] The authors’ results suggest that this reluctance may largely be a consequence of Medicaid’s poor payment rates to doctors.

Given these findings in the peer-reviewed literature, it is not surprising that Medicaid patients often arrive at emergency rooms in poor, and in many cases, untreatable condition. In fact, research has shown that Medicaid and CHIP patients end up in emergency rooms even more frequently than uninsured patients.[16]

As the academic research has consistently suggested, Medicaid’s so-called safety net cripples the very people it is designed to help. To fix the broken safety net, Congress should consider the following.[17]

Repeal Obamacare and its Medicaid expansion. One of Obamacare’s greatest pretenses is that it improves access to health care. The new law attempts to achieve this goal by dumping millions more patients into the broken Medicaid system. Recent Heritage Foundation research has statistically illustrated the debilitating effect that Medicaid expansion will impose on state governments.[18]

Some proponents will likely argue that Obamacare addresses access issues by providing additional federal funding to increase physician reimbursement to Medicare levels. However, this additional federal reimbursement is only temporary and solely applies to primary care physicians. As a result, it is only a matter of time until state budgets become more burdened and a lack of access to meaningful health care becomes even more of a problem nationwide.[19]

Maximize access to private health insurance for Medicaid beneficiaries. The best approach to improving access and outcomes would be to integrate the success of private health insurance into the Medicaid system. Some states, such as Florida, have pursued reforms in the past decade by giving Medicaid patients a choice of private managed care plans. A five-county pilot version of the program flattened Medicaid costs and had been saving the state slightly under $120 million annually. Additionally, the program overall noted greater access to care, higher degrees of patient satisfaction, and a marked improvement in health outcomes.[20]

The Heritage Foundation’s Saving the American Dream proposal goes further. It recommends transitioning non-disabled Medicaid beneficiaries out of the failing Medicaid program and into private health insurance and integrating private, patient-centered models into Medicaid to better serve the disabled and frail elderly.[21]

Medicaid is a prime example of government’s inability to outperform—or even keep up with—the private sector. Academic research has consistently illustrated that the program is associated with poorer access to care and poorer health outcomes than private insurance. With the right reforms, however, lawmakers can significantly expand Medicaid patients’ access to private health insurance and put low-cost, high-quality care back in the hands of those truly in need.

—Kevin D. Dayaratna is Graduate Fellow in the Center for Health Care Policy Studies at The Heritage Foundation.

[1] Robert E. Moffit, “Obamacare: Impact on Doctors,” Heritage Foundation WebMemo No. 2895, May 11, 2010, http://www.heritage.org/research/reports/2010/05/obamacare-impact-on-doctors.

[2] Sandra Decker, “In 2011, Nearly One-Third of Physicians Said They Would Not Accept New Medicaid Patients, But Rising Fees May Help,” Health Affairs, Vol. 31, No. 8 (August 2012), pp. 1673–1679, and Alyene Senger, “Don’t Expand Medicaid—One-Third of Doctors Are Already Opting Out of It,” The Heritage Foundation, The Foundry, August 9, 2012, http://blog.heritage.org/2012/08/09/dont-expand-medicaid-one-third-of-doctors-are-already-opting-out-of-it/.

[3] Nancy Merrick, Robert Houchens, Sandra Tillisch, and Bruce Berlow, “Quality of Hospital Care of Children with Asthma: Medicaid Versus Privately Insured Patients,” Journal of Health Care for the Poor and Underserved, Vol. 12, No. 2 (2001), pp. 192–207.

[4] Edward Wang, Meeryo Choe, John Meara, and Jeffrey Koempel, “Inequality of Access to Surgical Specialty Health Care: Why Children with Government-Funded Insurance Have Less Access than Those with Private Insurance in Southern California,” Pediatrics, Vol. 114, No. 5 (2004), pp. e584–e590.

[5] Andrew Hwang, Margaret Hwang, Hui-Wen Xie, Brian Hardy, and David Skaggs, “Access to Urologic Care for Children in California: Medicaid Versus Private Insurance,” Urology, Vol. 65, No. 1 (2005), pp. 170–173.

[6] Joanna Bisgaier and Karin V. Rhodes, “Auditing Access to Specialty Care for Children with Public Insurance,” New England Journal of Medicine, June 16, 2011, pp. 2324–2333, http://www.nejm.org/doi/full/10.1056/NEJMsa1013285 (accessed November 7, 2012).

[7] J. Z. Ayanian, B. A. Kohler, T. Abe, and A. M. Epstein, “The Relation Between Health Insurance Coverage and Clinical Outcomes Among Women with Breast Cancer,” New England Journal of Medicine, July 29, 1993, pp. 326–331.

[8] R. G. Roetzheim, E. C. Gonzalez, J. M. Ferrante, N. Pal, D. J. Van Durme, and J. P. Kricher, “Effects of Health Insurance and Race on Breast Carcinoma Treatments and Outcomes,” Cancer, Vol. 89 (2000), pp. 2202–2213.

[9] R. G. Roetzheim, Pal Nazneen, E. C. Gonzalez, J. M. Ferrante, N. Pal, D. J. Van Durme, and J. P. Kricher, “Effects of Health Insurance and Race on Colorectal Cancer Treatments and Outcomes,” American Journal of Public Health, 90 (2000), pp. 1746–1754.

[10] C. J. Bradley, C. W. Given, and C. Roberts, “Disparities in Cancer Diagnosis and Survival,” Cancer, Vol. 91 (2001), pp. 178–188.

[11] K. McDavid, T. Tucker, A. Sloggett, and M. P. Coleman, “Cancer Survival in Kentucky and Health Insurance Coverage,” Archives of Internal Medicine, Vol. 163 (2003), pp. 2135–2144.

[12] Omar Hasan, E. John Orav, and LeRoi Hicks, “Insurance Status and Hospital Care for Myocardial Infarction, Stroke, and Pneumonia,” Journal of Hospital Medicine, Vol. 5, No. 8 (2010), pp. 452–459.

[13] Joel S. Weissman, Constantine Gatsonis, and Arnold M. Epstein, “Rates of Avoidable Hospitalization by Insurance Status in Massachusetts and Maryland,” Journal of the American Medical Association, Vol. 268, No. 17 (1992), pp. 2388–2394.

[14] Nakela L. Cook et al., “Access to Specialty Care and Medical Services in Community Health Centers,” Health Affairs, Vol. 26, No. 5 (2007), pp. 1459–1468.

[15] Decker, “In 2011 Nearly One-Third of Physicians Said They Would Not Accept New Medicaid Patients, But Rising Fees May Help.”

[16] John O’Shea, “More Medicaid Means Less Quality Health Care,” Heritage Foundation WebWemo No. 1402, March 21, 2007, http://www.heritage.org/research/reports/2007/03/more-medicaid-means-less-quality-health-care.

[17] Nina Owcharenko, “Medicaid Reform: More than a Block Grant Is Needed,” Heritage Foundation Issue Brief No. 3590, May 4, 2012, http://www.heritage.org/research/reports/2012/05/three-steps-to-medicaid-reform.

[18] Drew Gonshorowski, “Medicaid Expansion Will Become More Costly to States,” Heritage Foundation Issue Brief No. 3709, August 30, 2012, http://www.heritage.org/research/reports/2012/08/medicaid-expansion-will-become-more-costly-to-states.

[19] Edmund F. Haislmaier and Brian Blase, “Obamacare: Impact on States,” Heritage Foundation Backgrounder No. 2433, July 1, 2010, http://www.heritage.org/research/reports/2010/07/obamacare-impact-on-states.

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Faith Leaders Pray For Restored Access To Women’s Health Resources In Texas

Faith leaders in Texas pray to restore women's health resources

Over the past year, Texas officials have attacked women’s health resources from all angles — slashing funding from family planning programs, cutting off funds to the Planned Parenthood affiliates in the state, and attempting to shut down dozens of abortion clinics. Those decisions have jeopardized thousands of low-income women’s access to affordable health care, and faith leaders are praying for Texas to reverse its course.

Religious leaders in Texas joined together last week to emphasize that women’s health is a religious issue. Jewish and Christian leaders prayed for increased access to preventative health services, like family planning programs and birth control, in a state that has become increasingly hostile to women’s health care:

Gathered in the rotunda of the Texas Capitol Extension, leaders from Christian and Jewish faiths voiced frustration with funding for women’s health care services. Their prayer included a plea to state lawmakers to restore the $73 million cut from family planning services during 2011 and to make contraception more readily available to low-income women.

“For us this is part of our faith commitment that cares for all of God’s creation, all of God’s people,” said Larry Bethune, pastor of University Baptist Church in Austin. “Particularly for the stability of families and for the care of women and their health.”

“We believe that women should have and families should have the opportunity to make choices about when they’re going to have children and how many children they’re going to have,” said Bethune. “Women need to have access to health care, to good counsel and to clinics that can provide that health care before, during and after pregnancy.”

The faith leaders criticized Texas officials for targeting Planned Parenthood in their ongoing crusade against abortion — a crusade that has had far-reaching implications for the poor women in the state who must now search for new doctors. Planned Parenthood is the state’s largest health care provider for low-income women, but Texas Republicans have been so focused on cutting ties with the national organization that they have forced the closure of dozens of unaffiliated health clinics and have ultimately eliminated $30 million in federal funding for women’s health services.

“I think the abortion issue, it’s just part of a continuing culture war,” Rabbi Neal Katz told a local ABC News affiliate. “But I do believe that it’s a distraction from the issue that we’re trying to focus on, which is women having access to good health care, to family planning, to birth control.”

Despite the Religious Right’s attempt to use abortion as a wedge issue, reproductive rights are not actually incompatible with faith communities. Most religious groups support women’s right to legal abortion services under Roe v. Wade, and many people of faith — including Catholics and evangelicals — support expanding women’s access to birth control.

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White House Announces Plan To Open Up Access To Research Supported by Federal Funds

Office of Science and Technology Policy Director John Holdren

Today, the White House released a memo directing federal agencies to make publicly funded research available to the people who pay for it:

“The Office of Science and Technology Policy (OSTP) hereby directs each Federal agency with over $100 million in annual conduct of research and development expenditures to develop a plan to support increased public access to the results of research funded by the Federal Government.”

The directive is similar to the Fair Access to Science and Technology Research Act (FASTR), a recent bi-partisan legislative proposal aimed at opening up access to federally funded research, although the waiting twelve month waiting period before research is made available in the White House plan is twice the length of the six month delay suggested by FASTR. Both the White House plan and FASTR build upon the success of the National Institute of Health’s 2008 public access policy.

Dr. John Holdren, Director of the White House Office of Science and Technology Policy, thanked signers of a We The People petition calling for the reform, saying its popularity was “important to our discussions of this issue.”

Today’s announcement could be critical to addressing the broken for profit academic publishing system that has led to a flourishing open access movement in scholarly circles. The movement gained a new public spotlight following the suicide of activist Aaron Swartz while facing prosecution for what many believe was an attempt to liberate research from the closed academic database JSTOR.

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White House says it makes effort to grant press access to Obama

White House press secretary Jay Carney said Tuesday he is sympathetic to growing concerns about press access to President Obama.

“Having been where you are, I understand,” said Carney, a former reporter for Time magazine.

While he said he also understood why “there was a desire” to have a photo of Obama hitting the links with golf pro Tiger Woods, he explained, “The president had some down time. He was playing golf.”

Carney's comments come after the White House press corps fumed when it was denied access to Obama’s golf game with Woods on Sunday.

Carney said the White House is “making an effort to provide access” and that no one received more favorable treatment with the Obama-Woods golf outing.

Carney came to the briefing armed with statistics. He said Obama has had 35 press conferences while former President George W. Bush had only 19 press conferences at this point in his presidency.

The White House spokesman also added that Obama has done 591 interviews since taking office, including 104 with major television networks.

Asked what Obama thinks of access issues, Carney replied, “He deputizes me to have that reaction.”

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The Other Aaron’s Law: How FASTR Could Help Americans Access The Research They Paid For

Just over a month after internet folk hero and activist Aaron Swartz ended his own life, a bipartisan group of law-makers have introduced legislation that would make progress on a cause near and dear to his heart: Open access to publicly funded research. The Fair Access to Science and Technology Research Act (FASTR), introduced this week by Reps. Zoe Lofgren (D-CA), Mike Doyle (D-PA), and Kevin Yoder (R-KS) in the House and Senators John Cornyn (R-TX) and Ron Wyden (D-OR) in the Senate, “require[s] federal agencies with annual extramural research budgets of $100 million or more to provide the public with online access to research manuscripts stemming from funded research no later than six months after publication in a peer-reviewed journal,” building on the success of the National Institutes of Health’s (NIH) 2008 public access policy.

Swartz faced a maximum sentence of decades in prison at the time of his death for charges related to his alleged downloading of nearly 5 million documents from the academic database JSTOR, in what many believe was an attempt to release the data. While efforts to reform the Computer Fraud and Abuse Act (CFAA), the law Swartz was being prosecuted under, using the moniker “Aaron’s Law” emerged quickly, the introduction of FASTR is the first legislative effort since his death to address the open access movement — the effort to provide unrestricted access to peer-reviewed research online.

Here’s how academic publishing works: Research is largely done by members of university communities (frequently funded by the public) who submit research to journals for publication (sometimes paying for the privilege). Then journals send the research back out to other academics to be edited blind (usually pro-bono), and the journal’s (often for profit) publishers sell back access to the published research to university libraries.

While the largest of the for-profit academic publishers, Elsevier, made $1.1 billion in profits in 2011 with a profit margin of around 35 percent, libraries have struggled to afford rising subscription costs that drove up expenditures by a staggering 273 percent between 1986 and 2004. The Harvard Faculty Council released a statement on the crisis last year noting that the prices for online content from two major providers increased by around 145 percent over the last six years alone, saying “[m]any large journal publishers have made the scholarly communication environment fiscally unsustainable and academically restrictive.”

FASTR is not an outright solution to this broken system, but it is a substantive step in the right direction that would provide open access because academic federal funding is the primary source of basic research support in the U.S. (the majority of which is carried out by academic institutions). And there are signs that the open access movement is making dents in the the academic publishing industry’s armor, like JSTOR’s Register & Read program. Neither that limited concession or FASTR will fully bring about the world of free information Swartz envisioned, but taken together they are a sign that world is slowly moving in the right direction.

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Press corps expresses ‘frustration’ over lack of access to Obama

The White House press corps on Sunday expressed frustration with the lack of access given to President Obama this weekend, during his trip to Florida.

White House Correspondents Association President Ed Henry released a statement Sunday evening, saying that the press corps had not been given adequate access to the president and that the group would press for “transparency” in the future, according to a pool report.

"Speaking on behalf of the White House Correspondents Association, I can say a broad cross section of our members from print, radio, online and TV have today expressed extreme frustration to me about having absolutely no access to the President of the United States this entire weekend,” said Henry. “There is a very simple but important principle we will continue to fight for today and in the days ahead: transparency."

President Obama is currently vacationing in Palm City, Fla., where is staying at The Floridian Yacht and Golf Club, a private resort. Earlier today, Obama hit the links with professional golfer Tiger Woods and resort owner Jim Crane.

White House press aides only confirmed that Obama was golfing with Woods after the outing was first reported by Tim Rosaforte, a writer at Golf Digest. The press was not provided a photo opportunity.

The White House responded to the complaint from the press corps, insisting that the level of access was “consistent” with prior outings.

"The press access granted by the White House today is entirely consistent with the press access offered for previous presidential golf outings,” said deputy press secretary Josh Earnest, in a statement, according to the pool report. “It's also consistent with the press access promised to the White House Press Corps prior to arrival in Florida on Friday evening."

Obama is scheduled to remain in Florida until Monday night. The first lady and their daughters are “out West” on a skiing trip, according to reports. 

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California Introduces Bill To Expand Access To First-Trimester Abortions

As states across the country impose restrictions to limit women’s access to abortion, California lawmakers are taking the opposite route. On Wednesday, Democratic lawmakers introduced legislation to expand the availability of first-trimester abortions by allowing more medical professionals — such as nurses and midwives — to perform the procedure.

Assembly Bill 154 revives last year’s push to allow nurses to perform nonsurgical abortions. Gov. Jerry Brown (D) ended up signing a watered down version of that bill, which only allowed non-doctors to perform early abortions after going through training in a specific pilot program. The California’s Nurses Association opposed the initial version of last year’s bill because they wanted to see the results from a multi-year study on early abortion that researchers were conducting at the University of California-San Francisco — but since the results from that study were published last week, lawmakers say the political landscape is different now.

The six-year study led by UCSF found that first-trimester abortions are just as safe when they are performed by professional nurses, physician assistants, and midwives as when they are performed by doctors. In a press release about their results, the researchers explained that expanding the abortion procedure beyond doctors could ultimately help eliminate the economic and racial barriers that prevent some women in California from accessing early abortions:

Nationally, 92 percent of abortions take place in the first trimester but studies find that black, uninsured and low-income women continue to have less access to this care, according to the researchers.

In California, 13 percent of women using state Medicaid insurance obtain abortions after the first trimester. Because the average cost of a second trimester abortion is substantially higher than a first trimester procedure and abortion complications increase as the pregnancy advances, shifting the population distribution of abortions to earlier gestations may result in safer, less costly care, according to the research team.

“Increasing the types of health care professionals who can provide early aspiration abortion care is one way to reduce this health care disparity,” said lead author Tracy Weitz, PhD, MPA, a UCSF associate professor and director of Advancing New Standards in Reproductive Health at the UCSF Bixby Center for Global Reproductive Health. “Policy makers can now feel confident that expanding access to care in this way is evidence-based and will promote women’s health.”

In a press conference on the 40th anniversary of Roe v. Wade to unveil the bill, California lawmakers said they are committed to ensuring that women can access reproductive care no matter where they live in the state. According to the bill’s sponsors, 52 percent of California counties don’t have an abortion provider other than hospitals, which may have limited services. “California will not go back. We are going to go forward,” said state Sen. Hannah-Beth Jackson (D).

But other states across the country are going back, as women’s access to first-trimester abortions continues to be threatened. In states like Iowa, Texas, and Wisconsin, anti-choice lawmakers are imposing unnecessary barriers to early abortion — even though restrictions on first-trimester abortions simply lead to a rise in more costly later term abortion procedures.

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Law Enforcers Block Access To Exonerating DNA Evidence

In yet another case, DNA evidence has suggested the innocence of a man who has spent 11 years and counting in maximum security prison for a serious crime. Joseph Buffey, like some 10 percent of the hundreds of individuals exonerated by DNA testing, pleaded guilty in a rape and robbery case that DNA evidence links to another individual. Buffey was persuaded to take a plea by his lawyer, who said he wrongly assumed Buffey had committed the crime, and thought a defendant as young as 19 would get no more than a 10-year sentence. Buffey was sentenced to 70 years in prison.

But what’s most confounding about Buffey’s case is that it took 18 months of litigation by the nation’s top wrongful conviction lawyers to even secure the DNA testing. From the New York Times:

The Innocence Project lawyers got involved in this case after Mr. Buffey sent them a letter a few years ago. When they ran the test on the victim’s rape kit in the spring of 2011 and it showed that it was not Mr. Buffey’s DNA present at the crime scene, they asked to run the results through the West Virginia database of felons to see if another match existed. The judge approved, but the prosecutor refused, saying that the laboratory that had done the testing was not certified by the state. The judge then said he did not have the authority to order the state to violate its own rules.

The Innocence Project offered to run the test again through a certified lab. But the prosecutor turned down the request, saying there was “no good reason to do so” and adding, “the state does not believe such testing will or can prove the defendant’s innocence after his guilty plea.”

The judge ordered the test to go forward. The state again resisted but a month ago backed down.

Unfortunately, the vast majority of defendants are persuaded to take guilty pleas in a system increasingly designed to incentivize deals over trial. And most defendants don’t have the advantage of leading experts on wrongful conviction to litigate an appeal on their behalf. But even those like Duffey who do face immense obstacles to even access available DNA evidence. In a disheartening 2009 decision, the U.S. Supreme Court ruled 5-4 that a defendant who was willing to pay for a DNA test at his own expense was not entitled to the test. Allowing William Osburne to prove his potential innocence, Chief Justice John G. Roberts said, risks “unnecessarily overthrowing the established system of criminal justice.”

The prosecutor in Buffey’s case expressed a similar attitude, saying that even DNA evidence linked to another individual and not Buffey “only tells us that someone else took part.” The victim’s testimony that there was only one attacker casts serious doubt on Romano’s assertion. But whether or not he is right should not have any bearing on a prosecutor’s willingness to provide the defendant, the judge and the jury with definitive, scientific information like DNA evidence.

In a system that study after study has shown is fraught with bias and error, DNA evidence should be a welcome bastion of accuracy. But because it is the government that investigates crimes, the prosecutors are the gatekeepers to evidence that should be equally available to both parties. And while some individual prosecutors are supportive of greater DNA access, law enforcers have an institutional interest in winning their cases. Only nine states have laws granting defense lawyers access to a national DNA database. As National Association of Criminal Defense Lawyers President Steven Benjamin said, “Juries expect the defense to be able to prove that if your client didn’t do it, who did? Science doesn’t belong to the government, but they act like it does.”

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Citing Citizens United, Federal Appeals Court Blocks Access To Birth Control

On Friday, a divided panel of the United States Court of Appeals for the Seventh Circuit, in an order joined by two conservative Republican appointees, temporarily immunized a company from the Obama Administration’s rules guaranteeing that employer-provided health plans cover birth control. Judge Ilana Rovner, a George H.W. Bush appointee, dissented.

The order is brief, and it mostly deals with the most significant issue in this case in just a single paragraph — holding that a for-profit corporate employer can claim that its religious liberties were somehow violated:

[T]he government’s primary argument is that because K & L Contractors is a secular, for-profit enterprise, no rights under RFRA are implicated at all. This ignores that Cyril and Jane Korte are also plaintiffs. Together they own nearly 88% of K & L Contractors. It is a family-run business, and they manage the company in accordance with their religious beliefs. This includes the health plan that the company sponsors and funds for the benefit of its nonunion workforce. That the Kortes operate their business in the corporate form is not dispositive of their claim. See generally Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010). The contraception mandate applies to K & L Contractors as an employer of more than 50 employees, and the Kortes would have to violate their religious beliefs to operate their company in compliance with it.

As a matter of current law, this decision is wrong. As the Supreme Court explained in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Lee established — with no justice in dissent — that religious liberty does not allow an employer to “impose the employer’s religious faith on the employees,” such as by forcing employees to give up their own rights because of the employer’s objections to birth control.

Nevertheless, the Seventh Circuit’s citation to Citizens United is an ominous sign. Lee was decided at a time when the Court understood that corporations should not be allowed to buy and sell elections. That time has passed, and the precedents protecting against corporate election-buying were overruled in Citizens United. It is not difficult to imagine the same five justices who tossed out longstanding precedent in Citizens United doing the same in a case involving whether employers can impose their religious beliefs on their employees.

It is likely that we will know soon whether those five justices are prepared to do so. The Seventh Circuit’s decision is at odds with a decision out of the Tenth Circuit, and the Supreme Court typically agrees to hear cases where two federal appeals courts disagree.

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Ensuring that LGBT Victims of Domestic Violence Can Access Critically Needed Services and Protections

Posted by Lynn Rosenthal, Tonya Robinson on May 15, 2012 at 11:06 AM EDT

Last week, the U.S. House of Representatives Judiciary Committee approved legislation to reauthorize the Violence Against Women Act (VAWA) of 1994, but failed to include critical provisions that would ensure that all victims of domestic violence can access vital services and protections.  Victims are victims, and, if you have been battered, stalked or otherwise threatened with violence, you should not be turned away by a shelter or denied the assistance you need merely because the aggressor is the same sex as you or because you are transgender.  Yet, the legislation approved by the House Judiciary Committee and being considered this week on the House floor would allow just that.

The guiding principle behind VAWA and each of its subsequent reauthorizations has been an unyielding commitment to the notion that no sexual assault or domestic violence victim should be beaten, hurt or killed because they could not access the support, assistance and protection that they need.  In enacting VAWA in 1994, Congress acknowledged that the criminal justice system chronically failed to respond to the crimes of domestic violence, sexual assault and stalking, too often blaming victims and refusing to hold offenders accountable as violent criminals.  In reauthorizing VAWA in 2000, Congress included new VAWA programs and provisions to help particularly vulnerable populations, including younger victims, immigrant victims, the elderly, and persons with disabilities.  In the 2005 reauthorization, Congress once again strengthened the Act to improve the health care response to domestic violence, to include a new focus on prevention, and to expand protections for children exposed to violence. 

This year, the VAWA reauthorization bill passed by the Senate in April would remove barriers faced by lesbian, gay, bisexual and transgender (LGBT) victims, whose needs often are overlooked by law enforcement, prosecutors, courts, and victim service providers. LGBT victims experience domestic violence at roughly the same rate as the general population.  Nonetheless, recent surveys show that LGBT victims frequently are turned away when attempting to access services. For example, according to a 2010 survey by the National Coalition of Anti-Violence Programs, 45% of LGBT victims were denied services when they sought help from a domestic violence shelter, and nearly 55% were denied protection orders. 

Without LGBT-specific training, criminal justice personnel often underestimate the physical danger involved in same-sex relationships or fail to identify a primary aggressor and instead arrest both victim and perpetrator.  Even well-intentioned service providers may generate outreach materials that do not accurately or fully reflect the experience of LGBT victims, and thus inadvertently discourage individuals who have suffered abuse from seeking needed care.  In all these cases, bias or a lack of understanding contributes to an environment where the needs of LGBT victims are underserved.

The Senate bill would improve VAWA further, authorizing States and service providers to ensure that VAWA protections extend to all victims - including LGBT victims - of domestic violence, dating violence, sexual assault, and stalking.  The Senate bill includes three provisions that would help LGBT victims access VAWA-funded services. 

First, the Senate bill would add a LGBT-focused purpose area to the STOP Violence Against Women Formula Grant program, the largest VAWA program and the one that supports law enforcement, prosecution, court and victim service activities in every State.  This new purpose area would authorize States, at their discretion, to fund projects that focus specifically on improving responses to male and female victims of domestic and sexual violence whose ability to access traditional services is affected by their sexual orientation or gender identity. 

Second, the Senate bill would amend the Act’s definition of “underserved population” to recognize that LGBT victims face barriers to service.  Not only does this improvement send an important message to those who administer and receive VAWA funding, but it will ensure that organizations serving this community can obtain funding from a new grant program that focuses on underserved populations. 

Third, the Senate bill would protect LGBT victims from discrimination by prohibiting VAWA grantees from denying LGBT victims access to programs on the basis of their sexual orientation or gender identity. Plainly put, this provision would ensure that all victims of domestic violence are able to access life-saving services.  In contrast, the VAWA reauthorization bill reported out of the House Judiciary Committee, which is being advanced by House Republican leadership, excludes these critical protections for LGBT victims.

Opponents claim that the Senate bill’s LGBT provisions are a solution looking for a problem.  That is just not true.  Domestic and sexual violence against LGBT individuals is an unfortunate reality, as is violence against non-LGBT individuals – and we shouldn’t allow any victim of such abuse to go unprotected.

Lynn Rosenthal is the White House Advisor on Violence Against Women.  Tonya Robinson is the Special Assistant to the President for Justice and Regulatory Policy.

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