UPDATE RE: H.B. 2718 Would Penalize Women on TANF for Having Children Unless They Are Survivors of “Legitimate” Rape

UPDATE (10/26/12):  Within three days of the publication of this blog post, three of the six house sponsors of H.B. 2718 have removed their names from the sponsorship of the bill.  The prime sponsor, Rep. RoseMarie Swanger, defended the bill initially, but reversed her position three hours later, saying that she did not check the language of the three-page bill.  She has informed the Philadelphia Inquirer that the bill will not go forward in its current form.

By Amal Bass, WLP Staff Attorney (10/23/12)

Led by State Representative RoseMarie Swanger of Lebanon County, lawmakers in Pennsylvania are targeting poor women and children with the introduction of House Bill 2718, which would prevent women who receive benefits under Temporary Assistance to Needy Families (TANF) from receiving an incremental increase in benefits due to the birth of a child.  As of October 17, 2012, the bill is in the Human Services Committee.

As the Women’s Law Project discussed in its report, Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women, less than 2% of Pennsylvania’s residents receive TANF, and only 17.6% of Pennsylvania’s residents living below the official poverty line receive cash assistance benefits.  That latter percentage will be even lower now that Governor Tom Corbett has eliminated General Assistance, the welfare benefit program for individuals who were ineligible for TANF.  Most of the families who receive cash assistance through TANF live in counties where the monthly benefit is $403 for a family of three, often not enough for most families to meet their daily expenses.

Instead of helping these families who are struggling to make ends meet, H.B. 2718 seeks to reduce the assistance families receive by preventing a family from receiving additional TANF benefits if that family has a child while receiving benefits or while on a temporary period of ineligibility for TANF.  The result is a denial of assistance to the most needy and vulnerable, the newborn children themselves and their families.  This harmful bill serves as yet another example  of how hypocritical many of Pennsylvania’s politicians are in caring only about “life” before birth and not afterwards.

The bill contains a narrow exception for survivors of rape and incest that is so fraught with conditions that it is unlikely that many survivors will be able to avail themselves of it.  It is largely an empty gesture grounded in insulting beliefs about survivors of sexual violence.  H.B. 2718 does not use the term “legitimate rape” explicitly, the term used by Republican Todd Akin in support of his inaccurate and ignorant argument that women cannot become pregnant as the result of a rape, but it is built upon similar stereotypes of rape survivors.

In essence, this legislation creates a “legitimate rape” test based on misconceptions of how “real” rape victims behave, a test that determines whether a family may receive the incremental increase in benefits after the birth of a child.  If this legislation passes, a woman who is pregnant as a result of rape must send a signed statement to the Department of Public Welfare stating:

 [1] that she was a victim of rape or incest… [2] that she reported the crime, including the identity of the offender, if known, to a law enforcement agency or [3] in the case of incest where a pregnant minor is the victim, to the county child protective service agency… stating the name of the law enforcement agency or child protective service agency to which the report was made and the date such report was made.

This bill presumes that “real” rape victims report the crime to police and will have no trouble disclosing the details of the crime to the Department of Public Welfare, when research shows us that many victims never inform the police for a wide variety of reasons.  For example, as the Women’s Law Project wrote in its amicus brief in Reedy v. Evanson:

Decades of research has documented the fact that the vast majority of sexual assault victims do not report their sexual assault to police… Some of the most common reasons that victims give for not reporting are their fears that their report will not be taken seriously, they will not be believed, or they will be seen as responsible for their own assault. (internal citations omitted).

H.B. 2718 fails to reflect this reality of sexual assault, resulting in harm to survivors who become pregnant as a result of violence.

Pennsylvania’s women and children need laws that do not penalize and stereotype them.  H.B. 2718 must be defeated.

U.S Department of Justice Launches Investigation into PA Voter ID Law

Nikki Ditto, WLP Intern

The U.S Department of Justice has begun a formal investigation on the legality of Pennsylvania’s controversial Voter ID Law, which was passed in March of this year. The law, which we have blogged about before, stipulates that voters must show certain approved forms of ID before voting in every election. The law is under investigation by the Civil Rights Division of the Justice Department for its unequal effect on minority voters in the state.

Carol Aichele, Secretary of the Commonwealth and the chief election official in Pennsylvania, received a three page letter on Monday, July 23^rd from Thomas Perez, the Assistant Attorney General. In the letter, Perez “requested state data on registered voters as well as the state’s list of individuals with driver’s licenses and ID cards.” The Department of Justice has also asked for information about Pennsylvania’s “efforts to educate voters about the new law.” The state has 30 days to compile all the requested information and send it to the Justice Department. 

According to Politico, while it isn’t clear what triggered the Department of Justice’s investigation, the letter does refer to a statement made by Aichele “indicating that 9.2 percent of the state’s 8.2 million voters don’t have a state-issued photo ID.” Pennsylvania has stated that “more than 758,000 voters may be disenfranchised” because they lack a correct form of ID, which also includes passports, military ID, and certain student IDs.

This is the first time the Department of Justice has investigated a state not covered by Section 5 of the Voting Rights Act (VRA). This section “requires certain states with a history of racial discrimination to have changes to their voting laws pre-cleared.” Two states that fall under this section, Texas and South Carolina, are currently facing opposition from the Department of Justice to their voter ID laws.

The investigation into Pennsylvania’s law falls instead under Section 2 of the VRA, which bars any state from enacting a “voting standard, practice, or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority group.”

The law is also being challenged in a lawsuit before the Pennsylvania Commonwealth Court, and an appeal to the Pennsylvania Supreme Court is likely.  While opponents of the law wait to hear whether it will go into effect for the November 2012 election, they are focusing on educating the public and on helping those in need obtain proper IDs in the hopes that such efforts can decrease the law’s harmful effects.

Pennsylvania Voter I.D. Law Disproportionately Impacts Women as Election Draws Near

Molly Cohen, WLP Intern

When Pennsylvania passed a law earlier this year imposing a voter ID requirement on voting in every election and narrowing the list of acceptable forms of ID, critics quickly pointed out that the law targets specific populations. Low-income voters, racial minorities, and elderly voters are less likely to possess the necessary photo ID. For many, obtaining proper identification entails a descent into the oft unnavigable maze of state bureaucracies. Additionally, despite Governor Corbett’s promise that there would be no financial cost to this process, those who do not have a raised-seal copy of their birth certificate must pay ten dollars to obtain one. Without this, they cannot apply for a photo ID if they have never had PennDOT issued ID before. The cost and effort of this process may dissuade otherwise eligible voters from participating in the coming election.

The ACLU of Pennsylvania, the Public Interest Law Center of Philadelphia (PILCOP), the Advancement Project, and the law firm of Arnold & Porter, LLP, filed a lawsuit on behalf of ten Pennsylvania residents who will be unable to cast their votes this November because of the new regulations, alleging that the law creates an “undue burden” on voters without photo identification and disproportionately affects the poor.

However, in addition to targeting the aforementioned marginalized groups, voter rights advocates warn that this issue significantly impacts women across the socioeconomic spectrum. As we explained in an earlier article, women commonly change their names and their addresses to marry or divorce. According to Faye Anderson, the chief spokesperson of a voter information network called the Cost of Freedom Project, approximately 34% of eligible female voters do not possess citizenship documents that bear their current name. Anyone who does not take steps to correct a mismatched last name or outdated address may be unpleasantly surprised to find that she cannot cast a ballot at the polls.

The validity of the Voter ID law is, at best, questionable. Proponents of the legislation peddled it as the cure for voter fraud, yet there is no evidence that any such problem actually exists. While Governor Corbett, who signed the bill, initially claimed that the law would only impact 1% of Pennsylvanians, a new study places the number closer to 9% statewide. In Philadelphia County, 15.6% of active voters do not possess PennDOT ID and may be ineligible to vote. These statistics have been proffered as evidence that the law, which passed along strict party lines, was designed to suppress liberal votes and ensure the GOP retains political primacy in the state. Mike Turzai, the State House Majority Leader,  reinforced these concerns when he spoke at a recent Republican State Committee meeting. He named the law as one of the party’s accomplishments for the year: “Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done.”

A hearing slated for July 25^th in the Pennsylvania Commonwealth Court in Applewhite et al. v. Commonwealth of Pennsylvania, et al. will determine whether the law will be in effect this November.

Those who oppose the Voter ID Law have organized several protests and events for the week leading up to the hearing in order to increase media attention and public pressure. A partial schedule is included below.

Saturday 7/21:
PA Voter ID Coalition Operations Center Open House from 11 am to 2 pm at 310 West Chelten Avenue in Philadelphia

Tuesday 7/24:
NAACP Rally for Justice at 1 pm at the State Capitol (3^rd Street & State Street) in Harrisburg

Wednesday 7/25:
Hearing in Commonwealth Court to stop the Voter ID Law at 10 am in Courtroom 3002 at the Pennsylvania Judicial Center (601 Commonwealth Avenue in Harrisburg). This is a public hearing, and supporters of the lawsuit are encouraged to attend.

There will also be protests across the state on the same day.

Philadelphia: 11 am – Thomas Paine Plaza (Broad Street & JFK Blvd)

Lehigh Valley: 12 pm – Lehigh County Government Center (7^th Street & Hamilton Street, Allentown)

Pittsburgh: 1 pm – Freedom Corner (Crawford Street & Centre Avenue)

And Then There Were None: Pennsylvania Bill to Permit Expert Testimony in Sexual Assault Cases Lands on the Governor’s Desk

Amal Bass, WLP Staff Attorney

House Bill 1264, which provides for expert testimony in certain criminal proceedings, has passed the Pennsylvania House and Senate, and is now on Governor Corbett’s desk. Until this legislation is signed by the Governor and goes into effect, Pennsylvania remains the only state in the country that does not permit juries in criminal trials to hear expert testimony explaining the dynamics of sexual assault. The bill, sponsored by Representative Cherelle Parker (D-Philadelphia) and 61 representatives from both sides of the aisle, will allow expert testimony in criminal cases involving sexual offenses. This legislation permits the prosecution or the defense to call experts who, because of their “experience with, or specialized training or education in, criminal justice, behavioral sciences or victim services,” can help juries and judges understand “the dynamics of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted.”

This legislation will help counter the misconceptions juries and judges have repeatedly applied in the past to sexual assault cases. These misconceptions, known as rape myths, “are attitudes and beliefs that are generally false but are widely and persistently held, and that serve to deny and justify male sexual aggression against women.” Kimberly A. Lonsway & Louise F. Fitzgerald, Rape Myths in Review, 18 Psych. of Women Quarterly 133, 133-134 (1994). These myths are connected to sexist attitudes about women and distort the dynamics of sexual assault.

Two rape myths, for example, are the belief that rape is rare and that women often lie about its occurrence. Other rape myths include the beliefs that sexual assault victims will actively resist their assailants throughout the assault and that they will report the crime as soon as possible.  Adherence to these myths may make jurors and judges more inclined to believe that a victim’s delay in reporting the assault, her lack of visible physical injuries, or perceived inadequate resistance to the attack indicate that she is lying about what happened.

In reality, research shows that many rape victims cannot or do not fight back during an assault for a variety of reasons, including fear, immobilization due to being physically restrained, or immobilization due to their own psychological responses to trauma. Thus, many victims do not have visible physical injuries and do not actively resist their attackers during the assault. Furthermore, a delay in reporting an assault is very common, as victims dealing with the immediate aftermath of an assault are in the process of making sense of what happened to them and are figuring out what steps to take. Contrary to a common misconception, there is no “right” or “normal” way for a victim of sexual assault to behave.

Pennsylvania’s enactment of HB 1264 will promote justice for victims of sexual assault by giving lawyers such as prosecutors the tools they need to address these commonly held misconceptions about the dynamics of sexual assault. To learn more about rape myths in the criminal justice system, see the Women’s Law Project’s amicus brief in Commonwealth v. Claybrook and our chapter on sexual violence in our report, Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women.

The Hypocrisy of Cuts to Medicaid Reimbursements for Newborn Care

Amal Bass, WLP Staff Attorney

When Pennsylvania’s politicians say they are for protecting the unborn, they mean it literally: the minute you’re born, you’re on your own.

Last month, Pennsylvania’s Department of Public Welfare (DPW), which is run by Governor Tom Corbett’s political appointees, yanked the rug out from under maternity wards state-wide by eliminating the $1,155 payment it used to make to hospitals for a newborn’s regular care when the mother is on Medical Assistance (Pennsylvania’s name for Medicaid).  DPW will continue to reimburse hospitals for the mother’s care, but it will no longer reimburse hospitals for the baby’s care unless the baby develops complications or needs to stay longer than normal for observation.

Nearly half of all births in Pennsylvania are paid for by Medical Assistance, so the reimbursement cuts will significantly impact hospitals across the state that provide maternity care, forcing them to absorb even more of the cost for the services they provide to pregnant women and their babies. Even prior to these cuts, hospitals typically lost money on Medicaid deliveries. One community hospital reported that every Medical Assistance delivery costs the hospital between $7,800 and $8,400, while the Medicaid reimbursement prior to May 1st was a mere $6,867 for both mother and baby. Now it is just $5,712.

Large hospitals that also serve many privately-insured mothers might be able to spread the loss among other deliveries, or even among other departments in the hospital. However, independent community hospitals that already have trouble breaking even will face greater financial difficulties.  As a result, they may have to close their maternity wards and lay off employees, making it even harder for Pennsylvania’s pregnant women to receive maternity care within a reasonable distance from their homes. Already, as the Women’s Law Project explores in our recent publication, Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women, many women in Pennsylvania, particularly if they are poor, have few options when choosing obstetrical providers. For these women, the result of the shrinking number of obstetrical providers that accept Medical Assistance is a delay or a denial in receiving prenatal care, medical care that is important for the health of pregnant women and their babies. DPW’s cuts to hospital reimbursements will only exacerbate an already dire situation for women who receive Medicaid.

DPW’s decision to cut hospital reimbursements for newborn care is another example of how misguided Governor Corbett’s administration is on issues relating to women’s and children’s health.  The governor pressed for controversial legislation that would mandate women undergo medically-unnecessary transvaginal ultrasounds prior to receiving abortions, justifying the bill by claiming these women can just “close their eyes,” but his administration will not even use a combination of federal and state funds to pay for the medical assessments and procedures newborn babies need in the crucial first 72 hours after they are born.

If Governor Corbett and DPW truly believed in the sanctity of life, they would promote policies that help women have healthy pregnancies and healthy babies. Their hypocrisy couldn’t be more apparent than in cutting maternity reimbursements for the care of newborn babies.

Plaintiffs Challenge the Constitutionality of Pennsylvania’s New Voter ID Law

On May 1, 2012, the American Civil Liberties Union (ACLU) of Pennsylvania, the Public Interest Law Center of Philadelphia (PILCOP), the Advancement Project, and the law firm of Arnold & Porter, LLP, filed a lawsuit challenging the new voter ID law in the Commonwealth Court of Pennsylvania.  The suit is filed on behalf of ten individual plaintiffs and four organizational plaintiffs who claim that the law violates the Pennsylvania Constitution by unduly burdening the fundamental right to vote, discriminating between voters in violation of Article I, Sections 1 and 26, and improperly adding additional qualifications to vote in violation of Article VII, Section I.  They request a preliminary injunction to prevent the law from going into effect.  The law, passed by the General Assembly and signed by Governor Tom Corbett on March 14, 2012, requires voters to show certain acceptable forms of photo identification at the polls in every election starting with the general election scheduled for November 6, 2012.

The individual plaintiffs, ranging in age from 22 to 93, have been unable to obtain photo identification for a variety of compelling reasons. For example, Joyce Block, an 89-year-old woman, has a birth certificate and social security card with her maiden name while her voter registration is in her married name and her marriage license is in Hebrew; 84-year-old Nadine Marsh has no available birth certificate; and “Asher” Schor, who is 22 years old, presents and looks like a man but looks like and is listed as a female in his passport and driver’s license.  In the past, these individuals have been able to vote because Pennsylvania law previously required only first-time voters to show identification at the polls and accepted a wider variety of identification, including non-photo identification, such as utility bills.

The new law will disproportionately impact women, such as those, who like Mrs. Block, have assumed a married name that does not match their birth certificates, social security cards, or voter registrations.  The law will also likely disenfranchise many elderly and poor Pennsylvanians, and women are more likely than men to fall into these groups.  Women made up 58.5 percent of individuals age 65 years and older between 2006 and 2010 in Pennsylvania, and, as the Women’s Law Project (WLP) discusses in Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women (available online on May 14, 2012), women made up 56 percent of those living in poverty even though they only made up 51.4 percent of the state population.

Not only are the elderly and the poor less likely to have photo identification, but they are also less likely to be able to afford the documents required to obtain state-issued photo identification before November 2012.  The new law directs PennDOT to issue identification free-of-charge to individuals who have the necessary paperwork, but the Commonwealth refuses to waive the fee for obtaining a birth certificate.  Thus, for many, the new law will result in disenfranchisement while addressing a “phantom” problem, as the plaintiffs call it, of in-person voter fraud, of which the proponents of the new law have not been able to provide any concrete examples.

The “soft” roll-out of the voter identification requirement happened on April 24, 2012, when poll workers requested photo identification from voters who came to vote in the Primary but allowed everyone who was registered to vote as usual whether they had identification or not.  WLP Staff Attorney Amal Bass, who serves as a local Judge of Elections, said:

We had to ask our family, friends, and neighbors, people we’ve known our whole lives and see at every election, for photo ID.  Most had it, but some did not.  I expect a much higher turn-out in November, when people who do not vote in primaries and who are less likely to know the intricacies of the new requirements will show up.  There will be confusion when they try to sign-in, long waits, and ultimately some people may lose their right to vote because they do not have the required identification in time to vote in the booth or have their provisional ballot counted.

One potential solution to minimize problems and confusion would be to ease into this new law gradually, over the course of multiple election cycles.  Even then, however, as the plaintiffs allege, there may be citizens of the United States and of Pennsylvania who will never be able to vote under the new voter ID requirements, no matter how many election cycles they have to “adjust” to it, because their birth certificates no longer exist, their married names cannot be verified, or because there are other obstacles in the way of obtaining acceptable identification.

If the plaintiffs are unsuccessful at stopping this new law from going into effect, voters in Pennsylvania, with few exceptions, will have to show appropriate photo-identification at the polls in order to vote, even if they have voted before and even if all of the poll workers — including the Judge of Elections and the Minority Inspector (of the opposing political party), who are already there in part to prevent in-person voter fraud — can vouch for that person’s identity.

To learn more about the new law’s requirements and about how to obtain acceptable photo-identification, see the Committee of Seventy’s guide.