Health Policy and the First Amendment: Protecting public’s right to be heard in the state legislative process

Georgetown University Collaboration Defends Rights, Facilitates Civic Engagement

Recently here at the Georgetown University McCourt School of Public Policy, I’ve had the pleasure of working with some of my colleagues at the Georgetown University Law School in the Institute for Constitutional Advocacy and Protection. Professor Mary McCord and Senior Counsel Annie Owens are respected attorneys and leaders at ICAP and were willing to listen when I gave them a call. Why? Some of the state groups concerned with health care advocacy I work with across the country are facing major barriers to their ability to freely exercise their rights to civic participation. These are organizations representing children, families, people with disabilities and others who need to testify before their state legislatures and in hearings about their experiences around health care, Medicaid expansion, and other issues. Unfortunately, over the last year, state legislatures have often become places where armed militia groups attend hearings carrying loaded automatic weapons – including children as young as 11 years old. State legislatures also have become

Recently here at CCF I’ve had the pleasure of working with some of my Georgetown colleagues at the Georgetown University Law School in the Institute for Constitutional Advocacy and Protection. Professor Mary McCord and Senior Counsel Annie Owens are respected attorneys and leaders at ICAP and were willing to listen when I gave them a call. Why? Some of the state groups concerned with health care advocacy I work with across the country are facing major barriers to their ability to freely exercise their rights to civic participation. These are organizations representing children, families, people with disabilities and others who need to testify before their state legislatures and in hearings about their experiences around health care, Medicaid expansion, and other issues. Unfortunately, over the last year, state legislatures have often become places where armed militia groups attend hearings carrying loaded automatic weapons – including children as young as 11 years old. State legislatures also have become places where basic COVID-19 health precautions are routinely ignored, often resulting in outbreaks of disease.

Deteriorating conditions in state legislative buildings have created a challenging environment for advocates for children, advocates for people with disabilities, advocates for seniors and really, any American seeking to speak to their elected representatives. Given the much higher risk of illness and death from COVID for older adults, is it any wonder an older adult concerned with, say, making sure children in their state all have health care, would themselves be reluctant to show up at a legislative hearing where many attendees aren’t wearing masks? And what about parents coming to talk about the benefits of Medicaid expansion who might think twice about speaking in opposition to measure when a middle schooler toting a loaded assault rifle is in the room? And, of course, someone with a disability that makes them very vulnerable to disease is just using common sense when they decide not to attend and speak at a legislative hearing in a building where COVID outbreaks are routine.

So, should folks worried about facing heavily armed opponents or catching a deadly disease because no one is following safety protocols just stay away from the policymaking process and not make their voices heard? These legislative bodies and other opponents shrug off these barriers to civic participation with the rationale that there isn’t a law requiring legislatures to adopt or enforce measures to make it safe for the public to attend. Actually, not only is there a law that says precisely this – the Americans with Disabilities Act – but also the First Amendment to the United States Constitution guarantees Americans “the right of the people… to petition the Government for a redress of grievances.” In short, the ability of a free people to observe and address the representatives they elect is one of the fundamental, founding principles of our nation.

Given this, when I was able to virtually connect some of the groups I know in Idaho experiencing these problems with the folks at Georgetown Law, there was clearly a lot to talk about. My expertise is in health policy law so I gratefully retired to an observation role while the ICAP team got busy with figuring out what they could do to help. In the end, that help turned out to be effective and significant. When writing letters to legislative leadership asking for enforcement and help to make the legislative environment safer didn’t work, ICAP worked with local individuals and disability rights organizations like the Disability Action Center and filed a complaint in federal court with local Idaho counsel.

I could summarize, but the complaint itself lays out what is at stake very clearly and succinctly:

“During the 2021 session, individual members, staff, employees, and leaders of [Idaho disability-rights advocacy groups] wish to educate and testify before the Legislature on issues including potential cuts to Medicaid; challenges to Medicaid expansion; proposed changes to guardianship, civil commitment, and other rights in facilities statutes….The First Amendment to the United States Constitution protects all Idahoans’ rights to participate in the legislative process, including the rights to petition the Legislature for redress of grievances and to speak in committee hearings. In addition, federal law provides specific protections for individuals with disabilities, including Plaintiffs and their members, ensuring equal access to state facilities and government proceedings and prohibiting discrimination.

Defendants control access to the areas of the Capitol Building occupied by the Legislature and have authority to establish and implement protocols regarding public access and participation in the legislative process. Nonetheless, Defendants’ current policies do not require the wearing of masks, social distancing, or other health precautions designed to mitigate the risk of exposure to COVID-19. In addition, Defendants have chosen to allow unlawful private militia groups and individuals to use firearms to intimidate and coerce legislators and members of the public in the legislative chambers and committee rooms. Under Defendants’ current policies, therefore, Plaintiffs must make an impossible choice between exercising their fundamental rights to participate in the legislative process and protecting their personal health and safety.”

After this complaint was heard and some procedural hurdles were overcome, suddenly the folks running the Idaho legislature became very interested in making major changes to enable people worried about their health and safety to participate in the legislative process. They made it much easier for remote testimony to be given, provided for live streaming of all committees and sessions, made it easier to submit written testimony, and made changes to increase ventilation and encourage mask wearing and social distancing in the legislative building. Because of this progress, the federal judge overseeing the hearing didn’t see a need to immediately act on the complaint even though he felt the claims presented a strong case:

“Plaintiffs may ultimately succeed on their claims, especially if they do not receive remote access to the legislative session—although such would be contrary to what the Legislature has represented to the Court.”

The groups and attorneys involved in the federal lawsuit are encouraged by these positive changes to the ability of concerned residents to access the Idaho legislative process; however, they stand ready to step back in should access and the opportunity to be heard become a problem again. As other states experience these issues, I am hopeful that ICAP’s experience with Idaho can enable advocates in other states to see a way forward to ensure access to the legislative process and an opportunity to be heard. In the meantime, I’m very happy to have been able to lure my friends at Georgetown Law into the health policy world here at Georgetown’s McCourt School. Who knows what we’ll do together next!

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