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Justice Department appeals federal judge’s ACA ruling

Decision impacts PrEP, other preventative health services

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The Pride flag over the Justice Department's D.C. headquarters (Photo courtesy of the Justice Department)

Justice Department attorneys filed a notice of appeal Friday with the 5th U.S. Circuit Court of Appeals on behalf of the Department of Health and Human Services after U.S. District Judge Reed Oā€™Connor ruled that employers cannot be forced to cover specified preventive health care services under the Affordable Care Act.

Thursdayā€™s ruling means that more than 150 million Americans on employer-sponsored health plans will lose some cost-free coverage for immunizations, contraception, cancer screenings and PrEP.

Oā€™Connorā€™s ruling struck down the recommendations that have been issued by the U.S. Preventive Services Task Force regarding the preventive care treatments provisions required by the ACA directing insurers provide at no cost to the patient.

White House Press Secretary Karine Jean-Pierre released a statement on the Justice Department decision to appeal:

“The president is glad to see the Department of Justice is appealing the judgeā€™s decision, which blocks a key provision of the Affordable Care Act that has ensured free access to preventive health care for 150 million Americans. This case is yet another attack on the Affordable Care Act, which has been the law of the land for 13 years and survived three challenges before the Supreme Court.
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Preventive care saves lives, saves families money, and protects and improves our health. Because of the ACA, millions of Americans have access to free cancer and heart disease screenings. This decision threatens to jeopardize critical care.
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The administration will continue to fight to improve health care and make it more affordable for hard-working families, even in the face of attacks from special interests.”

AIDS Healthcare Foundation President Michael Weinstein decried Oā€™Connorā€™s ruling saying:

ā€œStripping away access to preventive care will hurt tens of millions of Americans. These services are essential, and eliminating them will have dangerous consequences. While we expect this unconstitutional ruling ultimately will fail, the decision creates uncertainty and is a threat to public health.

ā€œWith this devastating ruling, a Trump-appointed judge placed the health of millions of Americans in extreme danger, based on an extremist political agenda. Undermining screenings and treatment for cancer, blood pressure, pregnancy, and mental health doesnā€™t just hurt individuals ā€” it damages the health of the entire country,” California state Sen. Scott Wiener said.

ā€œThe effect of this decision on HIV prevention will be disastrous. In recent years, weā€™ve made incredible progress reducing the number of new HIV infections, largely because hundreds of thousands of people are now taking PrEP, an HIV prevention drug proven to be essentially 100 percent effective. This decision reverses that progress by allowing health plans to charge patients through the nose for this life-saving medication, raising barriers to access for the communities of LGBTQ people and people of color most at risk. Judge Oā€™Connor will soon have thousands of new HIV cases on his conscience,ā€ Wiener added.

Equality California, the nationā€™s largest statewide LGBTQ civil rights organization, released the following statement from Executive Director Tony Hoang in response to a ruling from Oā€™Connor:

ā€œJudge Reed Oā€™Connor, already having attempted to invalidate the Affordable Care Act as a whole in 2018, has once again issued a ruling that puts the lives of Americans in danger. Preventive care is essential in helping to screen for potential severe health conditions and attempt to mitigate them ā€” this ruling affects screenings for cancer, diabetes, STDs, cardiovascular disease, and so much more.

More than 150 million Americans currently have private insurance with coverage for preventive care under the ACA, yet a partisan judge in Texas is attempting to single handedly rollback access to these basic health care services. Equality California is committed to ensuring that these critical preventive services remain in place for the health of all Americans. We expect an appeal of this decision immediately.Ā 

Thankfully, most health plans in California are unaffected by todayā€™s ruling because existing state law already requires health plans regulated in California to cover preventive services without cost sharing. Todayā€™s ruling may affect a small subset of employer-sponsored health plans that are not regulated by the state.

Equality California is proud to be sponsoring legislation with Assemblymember Rick Chavez Zbur and Insurance Commissioner Ricardo Lara, AB (Assembly Bill) 1645, which will strengthen existing law and go even further to ensure that Californians have access to essential preventive services, including STD screening and PrEP for HIV prevention. While right-wing judges and politicians are attempting to roll back our rights and inflict harm on LGBTQ+ people, California will continue doubling down to protect the health and safety of our communities.”

Read the notice of appeal here:

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U.S. Federal Courts

Melissa DuBose becomes first Black and first LGBTQ judge on federal court in R.I.

Senators also advance Nicole Berner’s nomination

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Judge Melissa R. DuBose (Screen capture: Roger Williams University School of Law/YouTube)

Judge Melissa DuBose was confirmed by the U.S. Senate on Tuesday for her appointment by President Joe Biden to the U.S. District Court for the District of Rhode Island, where she will be the first Black and the first LGBTQ judge to serve on the bench.

DuBose thanked her partner Amy ā€œfor blessing me with over two decades of unwavering love, support, laughter and patience,ā€ and their ā€œtwo remarkable sons ā€¦ for gracing me with that special love that is reserved for mothers and sons.ā€Ā 

The vote was 51-47, with only two Republicans supporting her nomination, Susan Collins of Maine and Lindsey Graham of South Carolina.

During a confirmation hearing in February, U.S. Sen. John Kennedy (R-La.) grilled DuBose about an article 24 years ago in which she was quoted as saying she had gone through “a Marxist phase.”

Currently serving as associate judge on the Rhode Island District Court in Providence, DuBose’s nomination was enthusiastically supported by her state’s two Democratic U.S. senators., Jack Reed and Sheldon Whitehouse.

ā€œSheā€™s proven to be an exceptional jurist with a stellar record,ā€ said the former on the Senate floor, adding, ā€œShe has dedicated her life to public service, and Rhode Island is fortunate that she has once again answered the call.ā€

Whitehouse said, ā€œThis is a person, a lifelong Rhode Islander, who is exceedingly well regarded in our community.”

Nicole Berner’s nomination advances

Another lesbian judge nominated by Biden to serve a lifetime tenure on the federal bench is Nicole Berner, who has long served as general counsel of the Service Employees International Union and was tapped to join the 4th U.S. Circuit Court of Appeals.

The Senate moved for a cloture vote on her nomination Thursday, meaning a final vote is expected as early as next week. She would be the first LGBTQ judge on the circuit court and the 11th confirmed LGBTQ judge nominated by Biden ā€” tying with the record number who were appointed by former President Barack Obama over two terms in office.

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U.S. Federal Courts

N.Y. AG joins multi-state brief in Colo. anti-trans discrimination case

Letitia James and 18 other attorneys general support plaintiff

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trans health care, gay news, Washington Blade
New York Attorney General Letitia James (Photo public domain)

New York Attorney General Letitia James on Wednesday joined a brief by 18 other Democratic state attorneys general urging the Colorado Supreme Court to uphold a lower court ruling against Masterpiece Cakeshop for anti-trans discrimination.

A customer, Autumn Scardina, sued the business over claims that it refused to provide her a cake upon learning that it was for a celebration of her transition. The case is not the first in which owner Jack Smith has faced claims of anti-LGBTQ discrimination.

In 2012, Masterpiece Cakeshop refused to fulfill an order for a wedding cake for a same-sex couple, which led to the 2018 U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission ā€” and a narrow ruling that did not address core legal questions weighing the constitutionality of First Amendment claims vis-a-vis the government’s enforcement of LGBTQ-inclusive nondiscrimination laws.

ā€œDenying service to someone simply because of who they are is illegal discrimination, plain and simple,ā€ James said in a press release. ā€œAllowing this kind of behavior would undermine our nationā€™s fundamental values of freedom and equality and set a dangerous precedent.”

She added, “I am proud to stand with my fellow attorneys general against this blatant transphobic discrimination.ā€

The Colorado Court of Appeals ruled in favor of Scardina, noting that Smith objected to fulfilling her cake order only after learning about her intended use for it “and that Phillips did not believe the cake itself expressed any inherent message.”

The fact pattern in both cases against Masterpiece Cakeshop resembles that of another case that originated in Colorado and was ultimately decided by the Supreme Court last year, 303 Creative LLC v. Elenis.

This time, the justices did not sidestep the question of whether the state’s anti-discrimination law can be enforced against a business owner, Lorie Smith, a website designer who claimed religious protections for her refusal to provide services to a same-sex couple for their nuptials.

The court’s conservative supermajority ruled in favor of Smith, which was widely seen as a blow to LGBTQ rights.

Joining James in her brief are the attorneys general of Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and D.C.

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U.S. Federal Courts

Fla. man found guilty of threatening George Santos

Gay former NY congressman expelled in December

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Former U.S. Rep. George Santos (R-N.Y.) (Washington Blade photo by Christopher Kane)

On Feb. 22, following a two-day trial, a federal jury in Ft. Lauderdale convicted a man for calling the office of former U.S. Rep. George Santos (R-N.Y.) in D.C. and threatening to kill the member of Congress and another person.Ā 

On Jan. 29, 2023, Frank Stanzione, 53, of Boynton Beach, Fla., made a telephone call from his residence in Boynton Beach to the office of a member of the U.S. House of Representatives. Stanzione left a voice message for the member that stated the following:

“[Victim 1 formerĀ Rep. Santos] you fat fucking piece of shit fucker. You better watch your mother fucking back because Iā€™m gonna bash your mother fucking fucker head in with a bat until your brains are splattered across the fucking wall. You lying, disgusting, disgraceful, mother fucking fucker. You mother fucking piece of shit. Youā€™re gonna get fucking murdered you goddamn lying piece of garbage. Watch your back you fat, ugly, piece of shit. You and [Victim 2Ā Redacted] are dead.”

The congressman’s chief of staff reported the message to the U.S. Capitol Police the next morning. The USCP began investigating the voice message as a threat and determined that it was made from a telephone number assigned to Stanzione. 

On Jan. 31, 2023, USCP special agents went to the address associated with the telephone number and interviewed Stanzione. USCP confirmed that Stanzione had left the voice message for the congressman. Stanzione found the telephone number on an online search engine. 

In a motion to dismiss, lawyers for Stanzione noted in the interview he told federal agents that ā€œhe feels offended by Santos and does not want him in his (gay) community.ā€ He said he left the message to make Santos ā€œfeel like a piece of shit.ā€

The court filing described Stanzione as ā€œa long-standing, active advocate for gay rights.ā€

In the motion to dismiss, Stanzione claimed his prosecution was ā€œretaliatory and vindictiveā€ and ā€œbased upon his exercise of political speech related to gay rights.ā€

ā€œOthers who have allegedly committed similar acts,ā€ his attorneys stated in the motion, ā€œhave not been prosecuted.ā€ 

U.S. Attorney Markenzy Lapointe for the Southern District of Florida and USCP Chief J. Thomas Manger announced the guilty verdict. The USCP ā€“ Threat Assessment Section investigated the case. 

Stanzione will be sentenced in May and faces penalties including up to five years in federal prison, a fine of up to $250,000, or both.

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