NJ AG and ACLU File Suits Against Health Care Denial Rule

January 15, 2009
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NEWARK - The American Civil Liberties Union of New Jersey applauded New Jersey Attorney General Anne Milgram for signing onto a lawsuit challenging the Bush administration's Health Care Denial Rule on the same day the national ACLU announced a separate lawsuit on behalf of the National Family Planning and Reproductive Health Association (NFPRHA) against the same rule. The rule, promulgated in the last throes of the Bush administration, allows a broad range of health care workers to refuse to provide health services, even in emergencies.

"The attorneys general play a critical role in fighting this rule, and we applaud Anne Milgram's initiative to step into the fray as the ACLU has," said ACLU-NJ Legal Director Edward Barocas. "The federal government has always been able to balance both patients' rights and the personal beliefs of medical professionals, and this rule is the Bush administration's way of toppling the balance away from patients' needs. This rule puts access to contraception in jeopardy and leaves women in a medical limbo where they have to question whether they'll get the services they need in time, if at all."

In addition to the ACLU's lawsuit on behalf of NFPRHA and the lawsuit brought by the six states' attorneys general led by Connecticut and including New Jersey, a third lawsuit was filed today by the Planned Parenthood Federation of America with Planned Parenthood of Connecticut.

As stated in today's legal papers, the rule significantly undermines the ability of millions of women and men in the United States to access essential family planning, reproductive and other health care services and information. It expressly permits a broad range of health care workers and facilities to refuse to provide services, information, and counseling, potentially even in emergency situations. At the same time, it fails to require refusing providers to either notify their employers or their patients of their objections to providing care.

"Experts, medical professionals and the patients whose rights this rule limits all agree that this policy will endanger lives and sacrifice patients' individual liberties," Barocas added. "The Bush administration should be ashamed that it spent its last months slipping in last-minute policies that put Americans' health at risk."

During a 30-day comment period, HHS received more than 200,000 responses. The overwhelming majority opposed the rule, including major medical associations such as the American Medical Association and the American College of Obstetricians and Gynecologists, women's health organizations, members of Congress, state governors and attorneys general, the Equal Employment Opportunity Commission, religious advocates, and the general public.

The final rule fails to address many of the concerns raised in these comments, including whether the rule prevents states from enforcing their own laws enacted to protect access to reproductive health care, whether the rule allows providers to refuse care even in emergency situations, and whether women seeking family planning services at federally funded health centers are still assured counseling for abortion care if they request it.

The Department of Health and Human Services promulgated the rule on December 19, 2008.

The National Family Planning & Reproductive Health Association is a vital membership organization representing the nation's dedicated family planning providers-including state, county, and local health departments; family planning councils; hospital-based clinics; and other private nonprofit family planning organizations and providers.

The ACLU's complaint is available at: http://www.aclu.org/reproductiverights/gen/38321lgl20090115.html

ACLU Applauds Governor Corzine's Signing of Pharmacy Bill

November 2, 2007
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TRENTON, N.J. -- The American Civil Liberties Union of New Jersey today applauded Governor Jon Corzine's decision to sign a bill into law that will help ensure women's ability to access birth control at the pharmacy. The bill, sponsored by Senator Fred Madden and Assemblywoman Linda Stender, makes New Jersey one of a handful of states to protect patient's ability to access prescriptions at the pharmacy.

"Today's law strikes an important balance between protecting patient's health and religious freedom," said Deborah Jacobs, executive director of the ACLU-NJ.

The pharmacy access law requires pharmacies to fill prescriptions for in-stock drugs or devices without undue delay, despite the sincerely held moral, philosophical or religious beliefs of an individual pharmacist. Pharmacies employing pharmacists who object to filling prescriptions can accommodate the objection so long as the pharmacy ensures that customers receive their prescriptions, including birth control, at the pharmacy without undue delay.

"Access to safe and effective contraception is a central component of basic health care for women," said Jacobs. "This law will go a long way toward ending sex discrimination at the pharmacy."

The ACLU's long-held advocacy for both reproductive rights and religious liberty uniquely positions the organization to address this issue. In April, the ACLU released a report, "Religious Refusals and Reproductive Rights: Accessing Birth Control at the Pharmacy," which examines legal questions raised when a pharmacist or pharmacy refuses to provide contraception based on a religious objection.

The report is available online at: http://tinyurl.com/2pms2q

ACLU-NJ Praises Court Decision Protecting Reproductive Freedom, Free Speech

September 12, 2007
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TRENTON, NJ - The American Civil Liberties Union today applauded a decision by the New Jersey Supreme Court dismissing a medical malpractice lawsuit that could have improperly forced physicians to give a non-medical, value-laden speech to their patients before performing an abortion. The ACLU called the decision a victory for reproductive rights and free speech in New Jersey.

"We are pleased that the court dismissed this frivolous lawsuit, which had no basis in law or medicine," said Brigitte Amiri, a staff attorney with the ACLU Reproductive Freedom Project. "This case was nothing more than an underhanded attempt to turn doctors into ideological mouthpieces and subject women to non-medical moral judgments."

In 1998, Rosa Acuna brought a medical malpractice lawsuit against a doctor in New Jersey, claiming that he had failed to properly inform her at the time of her abortion that the embryo was a "complete, separate, unique and irreplaceable human being" with whom she had "an existing relationship," and his failure to do so caused her emotional distress. According to court papers, Acuna, who had two children prior to her abortion, stated that at the time of her abortion she understood that she was pregnant and signed a form consenting to the procedure.

"Today's victory sends a message that New Jersey will not tolerate backdoor efforts to curtail reproductive rights or free speech," said Ed Barocas, Legal Director of the ACLU of New Jersey. "We will not allow the anti-choice lobby to force its moral or theological beliefs upon others and to intimidate doctors or women with lawsuits that are without merit."

In its unanimous decision, the court noted, "we know of no common law duty requiring a physician to instruct the woman that the embryo is an 'existing human being,' and suggesting that an abortion is tantamount to murder. There is not even remotely a consensus among New Jersey's medical community or citizenry that plaintiff's assertions are medical facts, as opposed to firmly held, moral philosophical, and religious beliefs."

Acuna's lawsuit is one of three instances where anti-choice foes have insisted that doctors must read a similar script to their patients prior to performing an abortion. A class-action medical malpractice lawsuit with similar claims was recently brought in Illinois, and in South Dakota, reproductive rights advocates are currently challenging a law that may require doctors to read language identical to that found in this case.

Today's decision by the New Jersey Supreme Court only reaches the issue of whether Acuna's malpractice case should go to a jury trial. Later this month, the U.S. Supreme Court will decide if it will consider a separate issue in the case regarding the legitimacy of a federal equal protection challenge involving New Jersey's wrongful death statute.

Today's case is Acuna v. Turkish (Docket No. 59, 525). Lawyers on the ACLU's friend-of-the-court brief include Amiri and Talcott Camp of the ACLU Reproductive Freedom Project and Barocas of the ACLU of New Jersey.

Fact-Based Sex-Ed Needed In Schools

May 9, 2007
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NEWARK, N.J. -- The American Civil Liberties Union today announced a multi-state action calling on the federal government to fix medical inaccuracies in federally funded abstinence-only-until-marriage curricula. Eleven ACLU affiliates sent letters to the U.S. Department of Health and Human Services alerting the agency to problematic curricula in their states and asking HHS to take steps to remedy the situation.

"States all across the country, including New Jersey are telling the government enough is enough," said ACLU-NJ Executive Director Deborah Jacobs. "It is time for the federal government to start properly monitoring the content of the abstinence-only-until-marriage programs that it funds."

In New Jersey, the Peer Challenge program is of particular concern. The Peer Challenge curriculum inaccurately states that condoms fail to prevent pregnancy one-sixth of the time, and that the failure rate for preventing sexually transmitted disease is "far worse" because both sexes can get sexually transmitted diseases. It falsely states that "[s]ome of the latest findings are revealing up to a 45% condom failure rate in preventing the transmission of the deadly AIDS virus," and that condoms provide "little or no protection" against herpes and HPV. It claims that the "term safe sex is actually a myth" and that "condoms have a 16% failure rate for preventing pregnancy during the first year of use and in some groups of teenagers this failure rate rises to 36%. So the odds are good that pregnancy will eventually result even while using condoms."

In 2005, the most recent year for which information could be obtained, Peer Challenge was offered in the North Wildwood School District, Middle Township School District, Ocean City School District, Lower Cape May School District, Upper Township School District and Wildwood City School District.

Today's action comes on the heels of an April letter the ACLU sent to HHS, which said three federally funded abstinence-only-until-marriage curricula, Me, My World, My Future; Sexuality, Commitment & Family; and Why kNOw, along with HHS' own 4parents.gov Web site and pamphlet, Parents, Speak Up!, all violate a federal law requiring certain educational materials to contain medically accurate information about condom effectiveness. In that letter, the ACLU called on HHS to immediately remedy the violations or face a legal challenge.

"It is clear from today's action that federally funded abstinence-only-until-marriage curricula across the country contain medically inaccurate information about the importance of condoms in preventing pregnancy and the spread of sexually transmitted disease," said Julie Sternberg, senior staff attorney with the ACLU Reproductive Freedom Project. "Spreading misinformation about condoms in many abstinence-only-until-marriage programs violates federal law and endangers teens' health."

The ACLU affiliates participating in today's action include: Alaska Civil Liberties Union, ACLU of Arizona, ACLU of Florida, ACLU of Illinois, ACLU of Kansas and Western Missouri, ACLU of Kentucky, ACLU of Louisiana, ACLU of New Jersey, Rhode Island ACLU, ACLU of Tennessee, and ACLU of Texas.

Last week, the ACLU asked HHS and the Oregon Department of Human Services to investigate evidence of misuse of taxpayer dollars to promote one faith over others in an abstinence-only-until-marriage program Stop and Think. The ACLU threatened to pursue legal action if sufficient measures are not taken to correct any problems.

In early April, a federally commissioned study by a Princeton, N.J., think tank was released showing that, notwithstanding the more than a billion dollars that the federal government has poured into the programs since 1996, abstinence-only-until-marriage programs don't work. The study looked at several federally funded programs and found that teens who participated in them were just as likely to have sex as teens who did not participate. Furthermore, these students had first intercourse at the same age and the same number of sexual partners as students who did not participate.

Currently, no federal funds are dedicated to supporting sexuality education programs that both teach abstinence and include complete and medically accurate information about how to use contraceptives effectively, despite evidence that these programs can delay sexual activity and increase contraceptive use among teens.

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ACLU Calls on Court to Protect Reproductive Freedom

February 25, 2007
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NEWARK, N.J. -- The American Civil Liberties Union today called on the New Jersey Supreme Court to protect women's reproductive rights and physicians' free speech rights. The ACLU urged the court to overturn a lower court medical malpractice decision that would have the effect of improperly forcing physicians to give a non-medical, value-laden speech to their patients before performing an abortion.

"Forcing women to listen to non-medical, moral judgments from their doctors prior to an abortion violates both state and federal constitutions," said Talcott Camp, a deputy director with the ACLU Reproductive Freedom Project, who argued the ACLU's position before the court today. "Doctors should not be compelled to act as an ideological mouthpiece when caring for their patients."

In 1998, Rosa Acuna brought a medical malpractice lawsuit against a doctor in New Jersey, claiming that he had failed to properly inform her at the time of her abortion that the embryo was a "complete, separate, unique and irreplaceable human being" with whom she had "an existing relationship," and his failure to do so caused her emotional distress.

According to court papers, Acuna, who had two children prior to her abortion, stated that at the time of her abortion she understood that she was pregnant and signed a form consenting to the procedure.

"This case is nothing more than a backdoor attempt to enact an extreme biased-counseling law -- something our legislature and governor have refused to do," said ACLU-NJ Executive Director Deborah Jacobs.

Today's argument before the New Jersey Supreme Court focused on whether Acuna's case should go to a jury trial.

The ACLU argued that an unfavorable decision in this case could extend far beyond abortion, including interfering with physicians prescribing certain birth control methods, pharmacists dispensing birth control pills and emergency contraception, and emergency room personnel treating sexual assault survivors.

Today's case is Acuna v. Turkish. Lawyers on the friend-of-the-court brief include Camp and Brigitte Amiri of the ACLU Reproductive Freedom Project and Ed Barocas, legal director of the ACLU-NJ.

A Victory for Truth: N.J. Drops Abstinence-Only Sex Ed

October 25, 2006
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TRENTON, N.J. -- Advocates for comprehensive sex education praised Governor Corzine's decision today to reject onerous and overly restrictive federal funding to provide abstinence-only-until-marriage programs in New Jersey. The federally designed abstinence-only-until-marriage program violates students' rights, embraces sexist stereotypes, isolates GLBT youth, promulgates religious views and contradicts New Jersey's core curriculum for stress-abstinence comprehensive sex education.

"All students have a right to accurate and honest sexuality education and Governor Corzine's actions speak to the heart of the matter: we must not mislead and misinform our young people when it comes to sexuality education, because to do so leaves them at great risk" said C. Danene Sorace, Director of Answer at Rutgers University, a leading national organization dedicated to providing and promoting comprehensive adolescent sexuality education. "The mandates that come with the federal funding are simply not right for New Jersey. We refuse to leave our young people in the dark about their sexual health," continued Sorace.

In an October 24 letter from Fred M. Jacobs, Commissioner for the New Jersey Department of Health and Senior Services, and Lucille Davy, Commissioner for the New Jersey Department of Education, to U.S. Department of Health and Human Services Secretary Michael Leavitt, the state of New Jersey informed the federal government of its decision, explaining that the abstinence-only-until-marriage guidelines contradict the core curriculum content standard in comprehensive sex education that New Jersey has had in place for more than 25 years. Moreover, the governor's office cautioned that accepting federal abstinence-only dollars may in fact cost the state money because students may require additional sex education to clarify the partial and misinformation that is taught in abstinence-only-until-marriage programs.

New Jersey has received abstinence-only-until-marriage funding since 1997. In past years, the federal government allowed states the flexibility to run programs in a way that was consistent with its core curriculum content standards. This year, however, the federal government is requiring strict adherence to all the elements of the abstinence program.

"We are pleased that New Jersey has put the health and well-being of our teenagers first," said Deborah Jacobs, Executive Director of the American Civil Liberties Union of New Jersey, which urged the governor's office to reject the abstinence-only funding. "We need to put resources into programs that work, include medically accurate information and protect teens from discrimination."

Recently, the Society for Adolescent Medicine, in one of the most exhaustive reviews to date of government-funded abstinence-only programs, rejected the current administration's policy that promotes abstinence as the only sexual health prevention strategy for young people.

Reports show that many abstinence-only-until-marriage curricula used by federally funded programs contain false and misleading information and perpetuate harmful stereotypes. Alarmingly, these curricula also misrepresent the effectiveness of contraceptives by vastly understating the effectiveness of condoms at protecting against sexually transmitted diseases (STDs) and preventing unintended pregnancy. Such misinformation is particularly alarming given that each year in the United States, nearly 9.1 million 15- to 24-year olds are infected with an STD and more than 800,000 15- to 19-year olds become pregnant.

"New Jersey's decision to reject the dictates of Washington ideologues in favor of its own state's laws sends a clear message that Washington should stop playing politics and give states the flexibility to craft and fund programs that meet their own needs in helping youth make good decisions," said William Smith, vice president for public policy at SIECUS, the Sexuality Information and Education Council of the US, a leading sexuality education advocacy group. "New Jersey is not alone, joining other states like Maine, Pennsylvania and California, in taking a principled stand in turning back funds tied to these policies of extremism," Smith continued.

NJ Supreme Court Strikes Down Parental Notification for Abortion Act

July 29, 2004
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TRENTON, NJ — Reaffirming the fundamental right of young women to choose to terminate their pregnancies, the New Jersey State Supreme Court, in a 4 to 2 decision, today struck down a law that would have prevented pregnant teens from getting an abortion unless they notified a parent or obtained a court order. The law did not impose a similar requirement on minors seeking other pregnancy-related care.

The American Civil Liberties Union, which challenged the law on behalf of health-care providers and their patients throughout the state, said that today's decision sends a strong message that the state cannot enact laws that uniquely burden minors seeking abortions.

“Today's decision recognizes the unfortunate truth: not all teens come from perfect families,” said Jennifer Dalven, an attorney on the case with the National ACLU's Reproductive Freedom Project. “The Court's decision should serve as a guide to legislatures and courts around the country. It makes clear that when you put aside the state's rhetoric these laws do not further family communication, but instead put teens' health and rights at risk.”

In its decision, the Court recognized that a parental notification law will not serve to foster family communication. The Court explained, “[T]he Notification Act cannot transform a household with poor lines of communication into a paradigm of the perfect American family.”

The law in question, the “Parental Notification for Abortion Act,” would have radically changed the way medical care has been delivered safely in New Jersey for over two decades. It would have amended a long-standing New Jersey law that expressly permitted pregnant minors to consent to all care related to their pregnancies — whether they wanted to have an abortion or become mothers.

It would have singled out pregnant minors who choose abortion — but not those who carry their pregnancies to term — and imposed on them alone the requirement of notifying a parent or going to court.

In its opinion, the Court accepted the ACLU's argument that the New Jersey Constitution does not tolerate such discrimination. The Court held in no uncertain terms that “the State may not affirmatively tip the scales against the right to choose an abortion absent compelling reasons.” In this case, it found that the State had “failed utterly” to show that it has any significant interest to justify the burdens and discrimination imposed by the Act.

“This decision is not only a victory for young women in New Jersey who will now continue to have access to safe and legal abortions but for all state residents who will be able to rely on the state Supreme Court and Constitution to protect their fundamental rights,” said Lenora Lapidus, Legal Director of the ACLU of New Jersey and co-counsel in the case.

The case, Planned Parenthood v. Farmer, number A-52, was filed by the ACLU in September 1999 on behalf of 13 health-care providers, including Planned Parenthood of Central New Jersey and the American Academy of Pediatrics/New Jersey Chapter. Attorneys on the case were Jennifer Dalven, Julie Sternberg, and Catherine Weiss of the National ACLU Reproductive Freedom Project, and Lenora Lapidus of the ACLU of New Jersey.

Settlement Agreement Protects Elizabeth Residents' Reproductive Rights

July 28, 2004
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Elizabeth, NJ — A first of its kind settlement agreement will ensure that Elizabeth residents continue to have access to reproductive medical services even after Elizabeth General Medical Center merges with St. Elizabeth Hospital to form a new Catholic hospital, Trinitas Hospital.

Under the agreement, which was signed last Friday, Elizabeth General Medical Center will set aside $2.4 million in two separate trusts to be used by Planned Parenthood of Greater Northern New Jersey to ensure delivery of certain medical services that will not be provided by Trinitas Hospital, which will be governed by the Ethical and Religious Directives of the National Catholic Bishops Conference. The funds will specifically support the provision of tubal case management, abortion referral and options counseling, direct financial assistance to women who cannot afford the full cost of abortions and tubal ligations, and transportation for women who will have to leave the City of Elizabeth to receive certain medical treatment after the formation of Trinitas.

The American Civil Liberties Union of New Jersey Foundation and the Women's Rights Litigation Clinic intervened in proceedings regarding the transfer of Elizabeth General Medical Center's charitable assets to the new Catholic hospital on behalf of the ACLU of New Jersey, the New Jersey Religious Coalition for Choice, New Jersey Right to Choose, Dr. Martin Hyman and two Elizabeth residents. In those proceedings the Honorable Miriam N. Span of Superior Court, Chancery Division, Union County, found that the conversion of the secular Elizabeth General Medical Center into a Catholic hospital was a change in charitable mission.

“This is a first,” said Renee Steinhagan, Special Counsel for the Women's Rights Litigation Clinic. “This is the first time that a court has permitted community organizations to intervene as a party in a court hearing held to determine the propriety of a merger between two charitable health care organizations, the first time that a court found that the transformation of a secular hospital to a Catholic one constituted a change in charitable mission, and the first time that a court approved a charitable asset payment that appropriately accommodated that change in mission.”

Lenora Lapidus, Legal Director of the ACLU of New Jersey, agrees with this sentiment. “This is a great precedent that can be used by women's groups both in New Jersey and around the country to preserve women's access to important medical care. In this era of healthcare consolidations, the Catholic Church's strength in the hospital market, no longer has to mean the end of a women's right to choose.”

Steinhagan says that Judge Span's decision is important for precedential legal value and as an example of a judicial decision that considers important public policy principles as New Jersey's continuing loss of secular hospitals puts women's reproductive rights at risk.

In Legal Challenge to NJ Parental Notification Act, ACLU Defends Rights of Teens

July 28, 2004
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HACKENSACK, NJ — The American Civil Liberties Union today filed suit on behalf of health care providers and their patients throughout the state to prevent New Jersey from enforcing a restrictive new abortion law aimed at minors.

In its lawsuit, the ACLU challenges as unconstitutional New Jersey's newly enacted Parental Notification for Abortion Act, which prevents minors from obtaining an abortion unless they first notify a parent or get a court order waiving the requirement.

“This law will harm, not help, teens,” said Jennifer Dalven, an attorney with the ACLU's National Reproductive Freedom Project and counsel on the case together with the ACLU of New Jersey. “While most teens already involve a parent in their decision to have an abortion, some cannot because a parent is abusive, terminally ill, or opposed to abortion,” she added. “Those who are forced to notify a parent may be beaten, kicked out of their homes, or forced into motherhood against their will.”

The law, if enforced, would radically change the way medical care has been delivered safely in New Jersey for over two decades. It also imposes financial penalties on any person who performs an abortion without complying with the law and holds them civilly liable to a parent who is denied notification.

Currently, pregnant minors in New Jersey may consent to all of their own medical, surgical, and hospital care related to their pregnancy. Although abortion is considerably safer than continuing a pregnancy through to childbirth, the law singles out pregnant minors who choose abortion — but not those who carry their pregnancies to term — and imposes on them alone the requirement of notifying a parent or going to court.

In legal papers, the ACLU argues that the law infringes on minors' right to privacy and discriminates against pregnant teens who choose abortion in favor of those who carry to term, in violation of the right to equal protection as guaranteed by the New Jersey Constitution.

But forcing minors to appear before a judge for a waiver is not the solution, the ACLU said. Many teens will be too afraid to go to court; others will be discovered as they attempt to make their way through the process, subjecting them to the very harms they seek to avoid.

“Whether minors in New Jersey have a physician notify a parent or go to court, their access to abortions will be delayed,” said Lenora Lapidus, Legal Director of the ACLU of New Jersey and co-counsel in the case. “This delay will increase the medical risks associated with the procedure and also make it more difficult, if not impossible, for minors to get the medical care they need.”

Major medical organizations such as the American Academy of Pediatrics and the American Medical Association oppose laws that require parental involvement in a minor's decision to have an abortion, Lapidus noted.

The lawsuit was filed on behalf of 11 health care providers, including Planned Parenthood of Central New Jersey, Planned Parenthood Association of the Mercer Area, and the American Academy of Pediatrics/New Jersey Chapter. They are represented by National ACLU Reproductive Freedom Project attorneys Jennifer Dalven, Julie Sternberg, Cora Tung, Mariann Meier Wang and Louise Melling, and ACLU of New Jersey Legal Director Lenora Lapidus.

The case, Planned Parenthood v. Farmer, number Ber-L-8026-99E7, was filed in Bergen County Superior Court in New Jersey.

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