Congress has just five weeks to decide the fate of key foreign intelligence surveillance powers — forcing a showdown between surveillance reformers and defenders. And now, a group of Republicans and Democrats have unveiled the strongest comprehensive reform proposal that we have seen yet. 

The Safeguarding Americans’ Private Records Act of 2020, introduced by a bipartisan group of members including Sens. Wyden (D-Ore.) and Daines (R-Mont.), is a strong first step. The bill is a response to the spying abuses that seem to pile up by the day — the collection of over a billion call records, spying on a prominent Trump advisor based on flawed evidence, and use of extraordinary measures to prevent courts from judging the legality of the government’s practices. 

There are many things to like about the bill.   

For one, it makes many strong reforms to Section 215 of the Patriot Act — the infamous law that was used by the Bush and Obama administrations to collect the call records of nearly every single American. The bill puts a definitive end to the call record program, which was recently suspended by the NSA amid a cascade of reports revealing unauthorized record collections and legal violations. The bill also heightens the legal standard that the government must meet to collect records under Section 215 and rightly requires the government to purge those records within three years, with limited exceptions.

In addition to reforming Section 215, the bill also attempts to rein in other national security authorities that the government has abused. For example, it inserts a sunset into the Justice Department’s “National Security Letter” administrative subpoena authorities, which the government has often misused to collect information in non-terrorism cases and pressure companies to turn over information that the government should only be demanding with a court-ordered warrant in hand. Such a sunset will rightly prompt oversight by Congress and a debate over whether these provisions should be permitted to continue at all. 

Moreover, the bill takes a first step towards ensuring that individuals trapped in the government’s surveillance regime can better exercise their constitutional rights. In particular, the bill requires the government to notify individuals in cases where information “obtained” or “derived” from Section 215 collection is used against them. It also defines the meaning of “derived,” in FISA, to prevent the government from engaging in legal gymnastics and evading its notice obligations.     

Finally, the bill takes an initial step towards reforming the secretive, one-sided intelligence court.  The Carter Page debacle brought the deficiencies of the court into stark relief: despite numerous omissions and inaccuracies, the FISA court approved an initial application and three subsequent renewal applications targeting the Trump campaign advisor for surveillance. To help prevent these types of abuses in the future, the bill would enhance the power of amici curiae — “friends of the court” whom the FISC currently appoint in a narrow number of novel and significant cases — to raise concerns in a larger subset of proceedings or to recommend a case review by a higher court. In addition, the bill would put in place several added transparency measures to give the public a better understanding of how the government is using the Patriot Act and other spying powers.

Despite these strong provisions, the proposed bill is far from perfect and members of Congress should address its gaps.   

For one, the bill fails to fully protect the rights of defendants by ensuring they have access to FISA applications and orders in cases where intelligence information is used against them. If, like Carter Page, someone was improperly surveilled on the basis of government misstatements or omissions, they should have the ability to prove the government was wrong. Along the same lines, the bill does nothing to ensure that individuals who are spied on — but never prosecuted — are notified. Criminal statutes like the Wiretap Act have long required after-the-fact notice to surveillance targets, with provisions designed to protect ongoing investigations.  There is no reason that a similar requirement should not exist in the intelligence context. 

Second, Congress needs to place greater limits on the Patriot Act and other surveillance powers to strengthen First Amendment protections and ensure intelligence authorities are not abusing the laws to discriminate on the basis of race, ethnicity, national origin, and other protected characteristics.

Third, while the bill makes a notable effort to limit the types of records that can be obtained under Section 215 — prohibiting the collection of cell site location information, GPS information, and browsing history, among others — this language should be strengthened. Congress must make crystal clear that the government cannot use Section 215 to obtain other types of location information or sensitive records, like tax returns or medical records. Under Section 215, the government can obtain large quantities of records by merely showing that they are “relevant” to a terrorism or counterintelligence investigation.  This standard is much weaker than the probable cause standard required by warrant.  Thus, in cases where the government seeks these sensitive records, they should be required to meet a higher evidentiary threshold. 

Finally, additional reforms are needed to fully empower the FISA court amici and tackle the deficiencies within the intelligence courts. Elements from a recent bill sponsored by Reps. Nunes (D-Calif.), Stewart (R-Utah), and other Republicans should be incorporated, including language requiring amici participation in proceedings targeting Americans, directing the amici to assess the sufficiency of evidence, and increasing transparency over the court’s proceedings.  

The clock is ticking — and it’s past time for Congress to pass these critical reforms.

Neema Singh Guliani, ACLU Senior Legislative Counsel

Before I finished high school, I learned I was pregnant. As a result of fear and a lack of resources, by the time I confided in my mother and grandmother, I had no choice — I was going to be a mother. Becoming a parent as a teenager came with many harsh realities. I love my children with all my heart, but I know that everyone should be able to make the decision to parent for themselves.

This personal experience, along with my passion for young people, is how I came to my work at the Alabama Women’s Center. As a board-certified obstetrician-gynecologist and medical director of a Huntsville-based reproductive health clinic, I provide prenatal care, deliver babies, treat mothers after they give birth, and provide abortion care. I have been in the shoes of many of the young people I see in my clinic, and it’s important for them to know that regardless of their decision, I am here to support them.

Today, I’m testifying on Capitol Hill in support of the Women’s Health Protection Act because access to abortion care should not differ depending on your zip code, as it does for my patients in Alabama. 

Providing abortion care in my state is challenging. Decades of medically-unnecessary restrictions have slowly chipped away at access to abortion care in Alabama and nearby states, forcing many providers to shut their doors. It is not unusual for my patients to travel up to eight hours or from as far away as Louisiana and Florida. They are required to endure a 48-hour state-mandated delay period before I can provide the care they need. I know of people who have slept in their cars during this period because they had no other options.

The state also mandates that my patients receive outdated materials and misinformation that I then need to correct. We are required to perform ultrasound examinations, even when they are unnecessary and provide no medical value.

Alabama bans abortion after 20 weeks of gestation. Patients needing care after that point have to travel out of state, making the care more expensive. And young people have to navigate an onerous, time-intensive judicial approval process to have an abortion if they cannot involve a parent.

And, just last year, the legislature passed a near total ban on abortion that threatens doctors like myself with up to 99 years in prison for providing ethical, medically-appropriate care. Fortunately, the ban is currently blocked, as a result of a lawsuit filed by myself and other abortion providers, represented by the ACLU. But that does not change the web of medically unnecessary restrictions that still exists and causes harm to my patients on a daily basis.

Indeed, over the years, the Alabama Women’s Center has been forced to comply with onerous, medically-unnecessary building requirements. We were required to install 24-hour lighting, even though we do not see patients after 5 p.m.  A local anti-abortion group sued the zoning board, then drafted legislation (later struck down by a court) making it illegal to operate an abortion clinic within 2,000 feet of a school to try to force us to close.

Meanwhile, the maternal and infant mortality rates in Alabama remain unconscionably high. According to the Alabama Department of Public Health, a majority of Alabama counties lack hospitals that offer obstetrical care. Moreover, the number of pregnancy-related has steadily increased. Black women in Alabama are nearly five times more likely to die from pregnancy-related causes than white women. We know that racial disparities in health care are exacerbated by policies that make accessing health care more challenging. Without access to abortion, maternal mortality rates will rise even more — in Alabama, and across the country.

Every patient deserves access to abortion care, regardless of where they live or how much money they have. Even though Alabama’s all-out abortion ban is not in effect, my patients are worried. One told me of the nightmares she had prior to coming to the clinic about being turned away and denied services because of these restrictive laws.

The bottom line is this: Abortion care is health care. Health care in any specialty should be patient centered, and medical decisions should remain between the patient and her physician, without political interference. The Women’s Health Protection Act would bring needed protection from that interference for my patients, safeguard their right to abortion care, and ensure that my patients have the time, information, and ability they need to make life-changing personal decisions.

Yashica Robinson, MD

From denying access to abortion for unaccompanied immigrant minors, to gutting the Title X family planning program, to trying to roll back the Affordable Care Act’s requirement that employers and universities cover contraception in their health plans, the Trump administration has spent the last three years waging an unrelenting, targeted campaign against reproductive freedom. And the administration does not appear to be losing steam. Indeed, just last month, Donald Trump became the first president to address the annual anti-abortion march in D.C.

Well, we aren’t losing steam either. We have sued the administration time and time again over its policies, including those detailed above. Today, we filed a lawsuit challenging the administration’s latest (and possibly most under-reported) attempt to undermine reproductive rights to date: a new rule that would push abortion further out of reach for millions of people across the country by coercing insurance companies to drop abortion coverage from individual insurance plans.

In late December 2019, the administration released the new rule that would force insurance companies that sell plans in the Affordable Care Act individual marketplaces to separately bill — and instruct customers to separately pay – for coverage of abortion services. This means insurance companies will have to send two separate bills to each customer — one for the coverage of abortion care, and another for coverage of all other health care. They will also have to instruct their customers to pay the bills using two separate transactions. In other words, each consumer will have to send two checks or two money orders, or complete two separate online transactions. 

This rule isn’t just about creating more bureaucratic red tape for the sake of it. Making it more complicated and costlier for insurance companies to cover abortion will have very real and devastating effects on the availability and affordability of health insurance (and, by extension, health care) for 3 million consumers across the country. This includes our four brave consumer clients: Rebecca, a small business owner in D.C.; Kirsty, a barista in Maryland; Mariel, a waitress and grad student in New Jersey; and Tanja, an artist in Maine.

Like many other consumers across the country, Rebecca, Kirsty, and Mariel all live in states that do not require insurers to cover abortion in individual plans sold on the marketplaces, which means that the rule could cause their insurers to drop abortion coverage from their plans altogether. If they lose coverage and need access to abortion, they will be forced to find a way to pay out-of-pocket for that care, which can cost hundreds of dollars or more.

Our fourth client Tanja knows this all too well. She lives in a state that requires insurers to provide abortion coverage, but when she needed an abortion a few years ago, she was forced to travel out of state, and her insurance would not cover her abortion. As a result, she had to pay for the entire procedure out-of-pocket, using up nearly all of the remaining balance she had on her credit card. While she was able to scrounge up the necessary financial resources at the time, she joined our lawsuit to fight the Trump administration because she knows just how burdensome (and, for some, impossible) it can be to have to figure out how to pay for an abortion on top of navigating the myriad other barriers to accessing care.

Even if Rebecca, Kirsty and Mariel are able to retain their abortion coverage, they, alongside Tanja, are worried about their ability to afford any rule-related increases in their premiums. For Mariel, who makes only slightly more than the maximum income eligible to qualify for Medicaid and is barely able to afford her premium payments now, even a small increase could force her to switch to a plan with a higher deductible and less coverage. This is not an unfounded concern: HHS has acknowledged that the rule will lead to increases in consumer premiums of up to one percent annually.

Our clients are also worried about the confusing new separate billing and payment requirements under the rule, which could put them at risk of losing their insurance coverage entirely as a result of accidental non-payment — yet another consequence the Trump administration acknowledged when they issued this policy. Any resulting coverage lapse would take a particularly catastrophic toll on consumers like Rebecca and Kirsty, who have pre-existing medical conditions that require consistent access to health care. And, like many of this administration’s policies, the new requirements will hit already marginalized groups the hardest, including people with disabilities and with limited English proficiency who may already struggle to navigate the health care system.

The Trump administration’s rule is just another attempt drive up the costs and burdens associated with accessing abortion to prevent people — especially those with the fewest resources — from obtaining abortion care. We will not stand by and watch as millions of consumers across the country have their health care needs trampled by the administration’s anti-abortion agenda. Alongside our brave clients, we will fight for every individual’s right to safe, affordable, comprehensive reproductive health care, including abortion.

Meagan Burrows, Staff Attorney, ACLU Reproductive Freedom Project