“Arrogance Cloaked In Humility”: Conservative Judges Are Ganging Up To Steal Your Affordable Healthcare
Tuesday morning, two competing courts – and the conservative judges turned silent partisan assassins that dominate them – put at risk the affordable health insurance on which millions of Americans have already come to rely. These six robed men in Washington and Virginia, within about two hours, have now set up yet another US supreme court showdown on the Obamacare law Republicans on Capitol Hill just couldn’t kill, despite trying more than 50 times.
Up first: an outrageous two-to-one decision by a panel of the Court of Appeals for the DC Circuit ruling against sensible subsidies that real people need, based on what we can charitably called the “reasoning” of the two Republican nominees on the three-judge panel – the opinion was written by an appointee of George HW Bush, along with a judge nominated by his son.
They were asked to decide on the legality of the subsidies based on the precise wording of the Affordable Care Act, which provided health benefits to non-affluent Americans purchasing insurance from federal exchanges newly established under President Obama’s signature health-care law. In the literal language of the statute, subsidies are available to those purchasing insurance on “state exchanges”, although a majority of exchanges were ultimately established in the states by the federal government because of state-level Republican hostility to the law. Sensibly, the Internal Revenue Service allowed anyone who purchased from any exchange – federal or state – to qualify for the subsidies.
The Bush-appointed judges, however, aren’t much for being sensible: they ruled instead that only those who purchase insurance from the exchanges established by the states are allowed subsidies.
In what can only be described as black comedy, the majority opinion concludes with paeans to judicial restraint. (One is reminded of Lewis Carroll’s Walrus, “deeply sympathizing” with oysters prior to having “eaten every one”.) “We reach this conclusion, frankly, with reluctance,” the majority wrote, going on to concede the following:
[O]ur ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly.
But they are compelled, you see, to inflict these consequences as a means of “ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.” For two judges to subvert the clear purpose of the law in the name of judicial restraint is, to borrow Justice William Brennan’s phrase, arrogance cloaked as humility.
The sole dissenting judge, Harry Edwards, in his tour de force dissent, made clear his distaste for appointed judges making new law – and pointed out that the majority opinion requires the courts to ignore all the sound principles of statutory construction.
Congress clearly thought the subsidies were essential to the functioning of the exchanges, and it permitted the federal government to establish exchanges in order to prevent states from thwarting the aims of the ACA – which is to help people buy more affordable health insurance.
The majority’s reading, however, would allow hostile states to do exactly what the law was designed to prevent: by refusing to establish a state exchanges, they could effectively stop all the exchanges from working properly.
As Edwards observes, the majority’s interpretation “is implausible because it would destroy the fundamental policy structure and goals of the ACA that are apparent when the statute is read as a whole”. Plus, not a single state government – even those hostile to the law – believed that the statute demands what the majority says it does. Nobody is confused about what the law intended, but some people who oppose the ACA on political grounds are opportunistically pretending to be.
Meanwhile, just across the Potomac River, the Fourth Circuit Court of Appeals was charged with hearing a different case on the same question. But it ruled in favor of the administration, effectively siding with the first ruling’s minority opinion. That’s the sort of legal dichotomy – however strange the buzzer-beater timing – that pretty much guarantees the supreme court will ultimately answer this question for all the Americans using the federal exchanges.
That’s slim comfort for some: while most of the law narrowly survived a constitutional challenge that made it to the supreme court, the number of Americans covered by it would be much higher had the court not used bafflingly illogical reasoning to re-write the act’s Medicaid expansion in a separate ruling, which made it easier for states to opt out of that provision.
That’s all part of the Republican strategy, of course: once they lost their battle in Congress to ensure that as many non-affluent Americans as possible would continue to experience the “freedom” of going without health insurance coverage, they’ve been throwing ad hoc legal arguments at the ACA, hoping that something would stick.
Don’t be fooled that the judges who hear these challenges are not influenced by the ongoing political partisanship. As Ian Millhiser of ThinkProgress demonstrated, both judges who ruled against the subsidies today are highly partisan Republicans.
Despite Republican efforts, a study in the New England Journal of Medicine published last week found that 20m Americans are now covered by the exchanges and Medicaid expansion created by the Affordable Care Act. For all its imperfections, the law is a striking policy success and has done a great deal to address a major national problem. However, the Republican party – and most of its agents on the federal courts – would still prefer the number of Americans who benefit from the law to be much lower, as evidenced by their legal strategy.
The only good news is that this decision against the subsidies may not stand. The federal government is expected to appeal for a hearing from the entire DC circuit court, and it is unlikely that the full court would reach the same conclusion. It’s also far from clear that opponents’ argument could command a majority of the supreme court, where the cases are probably headed.
But it’s still remarkable that an argument this legally weak – and with such destructive human consequences – could command support from the majority of an appellate panel. Given the active Republican hostility to the Affordable Care Act, and the party’s utter indifference to the fate of the millions of people is helping, there’s no way to be entirely confident that the supreme court won’t use the opportunity of a new case to take something else away from the Americans who need it.
By: Scott Lemieux, The Guardian, July 22, 2014
The Supreme Court’s recent decision in the Hobby Lobby case demonstrates that the court, at least the five justices who voted in favor of Hobby Lobby, has little concern for, and probably little understanding of, women’s health care. By ruling that corporations, on the grounds of the alleged religious views of their owners, can deny women access to some forms of contraception, the court set a horrible precedent that if followed will endanger the health and lives of many American women.
The Hobby Lobby ruling may at first seem like a victory for the minority of Americans who think that both abortion and contraception should be illegal, and for those who believe that the US should operate more as a theocracy than a country where state and church are separate. However, the ruling not only is terrible news for women seeking a guarantee of good healthcare through their employer, but also for anybody who believes in personal freedom.
In the US, where health insurance is linked to employment, health insurance is part of the compensation package. When most Americans are about to start a new job, or choosing between two or more jobs, one of the first questions they ask is about the quality of the health insurance they will get. In most cases, health insurance varies because some companies offer plans with lower co-pays, better dental care or things like that. Firms that deny dental care are doing it because of concerns about costs, not because they have an ethical or religious problem with healthy teeth. Hobby Lobby is doing something different, denying women access to some forms of health care because of the personal beliefs of the people who run the company.
This decision raises the question of whether the Supreme Court will next rule that employers can tell workers how to spend the money they earn at their jobs. This sounds a bit extreme, but in a very real way that is precisely what the court just did. By limiting how workers can use some of their compensation, the court, despite its own assertions that it was not setting a precedent, opened the door for further limitations. If Hobby Lobby can tell people how they can or cannot use their health care benefits, why can’t they also tell people they can’t, for example, use their salaries to donate to pro-choice political candidates or pro-marriage equality causes? The answer, one would think, would be obvious, but the recent court decision makes it considerably less clear.
The Republican Party has long, if not always sincerely, repeated a mantra of individual freedom, but the Hobby Lobby decision, in which all five justices who formed the majority were appointed by Republican presidents, undermines that. A central belief of all Republican politicians is that Americans should have a right to do what they want with, and keep as much as possible of, their hard-earned money. The Supreme Court made a big move against that idea this week, but the outrage from the Republican side has been absent.
Conservative opposition to healthcare have consistently argued that decisions about health care should be made by patients and doctors, not by the government. The death panel hysteria that Sarah Palin unleashed on the American people a few years ago took that point to a nutty extreme. After last week, conservatives who support Hobby Lobby should probably change their position and argue that health care decisions should be made not by a patient’s doctor, but by a patient’s employer. Similarly, for supporters of the Hobby Lobby decision, the new mantra of individual freedom should now be that Americans should be allowed to do whatever they want with their hard earned money, as long as their boss approves, but somehow that seems an unlikely campaign slogan for Ted Cruz or Marco Rubio.
The Hobby Lobby decision is about women’s health care and individual freedom, but it also is another sign of the consolidation of power by big corporations in the US. It is now legal for corporations to deny workers important medical services, and redefine their compensation packages, simply because, religious claims aside, they want to. During a very tenuous recovery in which real wages have not recovered, unemployment remains high and economic uncertainty on the part of working Americans is an enormous problem, the Supreme Court just gave more rights to corporations while taking wealth, as health care benefits are a form of wealth, out of the hands of working Americans.
By: Lincoln Mitchell, The Huffington Post Blog, July 6, 2014
The federal government has released new data on Medicaid enrollment showing that with the implementation of the Affordable Care Act, six million Americans were added to the program’s rolls. That’s six million low-income people who now have health coverage, who can see a doctor when they need to and who don’t have to worry about whether an accident or an illness will send them spiraling into utter financial ruin.
The numbers reveal something else, too, something that should horrify conservatives: we’re well on our way to health-care socialism.
Okay, that’s an exaggeration. But only a slight one. And at a time when the press is realizing that Republicans are losing their taste for anti-Obamacare bloviating (more on that in a moment), it shows that Bill Kristol’s nightmare has nearly come true.
Back in 1993, Kristol wrote Republicans an enormously influential memo advising that the best approach to Bill Clinton’s health reform plan was not to do everything they could to kill it outright. If any plan managed to pass, he warned, “it will re-legitimize middle-class dependence for ‘security’ on government spending and regulation. It will revive the reputation of the party that spends and regulates, the Democrats, as the generous protector of middle-class interests. And it will at the same time strike a punishing blow against Republican claims to defend the middle class by restraining government.”
Now let’s look at where we are today. Prior to ACA implementation, there were just under 59 million people enrolled in Medicaid and CHIP, the program that covers poor children. States that accepted the ACA’s expansion of Medicaid signed up a total of 5.2 million new people. The states that rejected the expansion signed up an additional 800,000; these are “woodwork” enrollees, people who were already eligible under their state’s (often absurdly restrictive) rules, but came out of the woodwork to sign up because of all the attention to health care. Add them in, and there are now 64 million Americans on Medicaid and CHIP.
On top of that, there are now over 52 million seniors on Medicare. There are another 9 million veterans enrolled in the Veterans Health Service.
That’s a total of 125 million Americans getting their insurance from the federal government (or, in the case of Medicaid, a federal-state program). The current U.S. population is 318 million. That means that 39 percent of us, or just under two out of every five Americans, are recipients of government health insurance.
As a liberal, of course, I believe that’s a good thing, though just how good varies from program to program (I’ve spent enough time fighting with private insurance companies to wish I could be insured by the government). Conservatives, on the other hand, view this as a disaster. What they’ve only partly come to terms with is the fact that it’s going to be almost impossible for them to do anything about it.
It’s true that Republicans appear to have realized that while the ACA remains unpopular, the idea of repealing it is even less popular. Which is why, as the November election approaches, they’ve almost stopped trying to elevate the issue. As Sam Baker points out, Republicans passed on the opportunity to use the confirmation of Sylvia Burwell to be HHS secretary as a forum to relitigate the law, and the bills circulating around the Hill on health care are now more likely to be small-bore fixes. Notes Baker: “Anyone who’s been around Capitol Hill and health care for the past four years can see it — the anti-Obamacare fire just isn’t burning as hot as it used to.”
Beyond that, as this blog has documented, multiple Republican Senate candidates are now mouthing support for Obamacare’s general goals and have essentially been reduced to gibberish when trying to explain their “repeal and replace” stance.
But the story is bigger than all of this. Republicans may have to accept that while we may not have the single-payer system liberals want, government still dominates American health care, and that isn’t going to change.
It isn’t just that Republicans could stage another fifty ACA repeal votes in the House and accomplish just as little as the last 50 repeal votes did. Rather, it’s that even if Republicans took back the White House and both houses of Congress, moving people off their government insurance would be next to impossible.
One of the most important lessons of the last 20 years of health reform is this: people fear change. That’s what the Clinton administration found out when their attempt at reform crashed and burned, in large part because the Clinton plan would have meant a change in coverage for most Americans. The Obama administration took that lesson to heart in creating its plan, which was designed to give coverage to people who lacked it but offer only new protections to those who already had insurance. That was also the reason for the false but endlessly repeated “if you like your insurance, you can keep it” assurances — they knew that if most Americans, particularly those with somewhat-secure employer plans, thought they’d have to endure some kind of change, then they’d once again be gripped by fear.
Any Republican plan to unwind the ACA is going to run headlong into people’s fear of change and be stopped in its tracks. Are you going to push 64 million Medicaid and CHIP recipients off their current insurance and onto private plans? Are you going to move away from employer-provided coverage? Are you going to privatize Medicare?
Perhaps, given the right circumstances, Republicans could overcome that fear. But I wouldn’t bet on them finding a way to do it.
By: Paul Waldman, The Plum Line; The Washington Post, June 5, 2014
Here’s why all the super-smart insidery people privately say they think that in the end, Alison Lundergan Grimes will not beat Mitch McConnell in Kentucky. Her strategy, they say, is to keep it close, keep her distance from Obama, hold her own in debates, try to match him attack ad for attack ad, and just hope McConnell makes a mistake. And the super-smart people agree: You may admire or loathe McConnell, but if he’s proven one thing in umpteen elections, it’s that he doesn’t make mistakes.
That’s what the insiders say. There’s just one problem with it. McConnell has made about a mistake a week so far! He’s run an awful campaign. And he’s given anybody no reason at all to think he won’t just keep making them.
The latest is maybe the biggest howler yet, bigger than even the ad that mistook Duke basketball players for UK Wildcats. He said last week that while he will certainly still pursue repeal of Obamacare, he thinks Kentucky should be able to and will keep its celebrated Kynect health-care exchange, set up by Democratic Governor Steve Beshear under the Affordable Care Act. Here’s how LEO Weekly, out of Louisville, reported the moment:
McConnell took three questions on the Affordable Care Act and how its repeal would affect the 413,000 Kentuckians who now have insurance through the state exchange, Kynect. The first question asked how he would respond to those who say repeal would take away the health care of 413,000 Kentuckians, to which McConnell launched into his standard answer that Obamacare was raising premiums, raising deductibles, and killing jobs, concluding, “It was a big mistake, we ought to pull it out root and branch and start over.”
WHAS’ Joe Arnold followed up that answer by asking, “But if you repeal it, won’t all of the state exchanges be dismantled? How does that work?” McConnell then launched into his standard “solution” of sorts, calling for an “international market” of insurance companies that aren’t limited by state lines, in addition to “malpractice reform.”
The LEO writer, Joe Sonka, whom McConnell’s muscle men once threw out of a press conference because he has the temerity to write, like, facts and stuff, went on to slice and dice McConnell’s argument: “Kynect could not have existed without the Affordable Care Act, and it would cease to exist if the Affordable Care Act ceased to exist. There would be no people eligible for the expanded Medicaid—the large majority of those who signed up through Kynect—and there would be no exchange for people to sign up for affordable private insurance with federal subsidies. Saying that Kynect is unconnected with the ACA or its repeal is just mind-numbingly false. The ACA and Kynect are one in the same.”
This is obvious to anyone with a brain. The category of humans with a brain includes McConnell. He’s not that stupid. That leaves only one other choice: hypocritical. Well, two other choices: hypocritical and lying. That is, he knows Kynect can’t exist without the ACA, but he just said it anyway, without any concern for the truth. And the hypocrisy part comes in, of course, because, well, how can he have stood up there for years saying that, no, Americans should not be permitted to get health care the Obama way, and he’s going to strike it down the second he can—but Kentuckians, they’re different?
This gives Grimes an opening she didn’t have. More than 430,000 Kentuckians have health care now through Kynect. Mitch wants to take it away. No, wait, he doesn’t! Well, he wants to take Obamacare away, and Kynect came through Obamacare, but somehow he’s going to keep Kynect. And he’s going to go buy a new Oldsmobile, even though Olds is out of business, and he’s gonna campaign with Colonel Sanders, even though he’s been dead since 1980, and once he’s reelected he’s going to privatize Medicare—except in Kentucky, because Kentucky is different. Grimes’s media team, a talented bunch in my experience, should be able to have quite a lot of fun with this.
The Lexington Herald-Leader sure did, raking McConnell over the coals Wednesday. It wrote:
Asked specifically if Kynect should be dismantled, McConnell said: “I think that’s unconnected to my comments about the overall question.”
That’s a quote that should live forever, or at least until Election Day. The super-smart insiders may be right, though, about one thing. McConnell won’t make “a mistake.” He’ll make several.
By: Michael Tomasky, The Daily Beast, May 29, 2014
“How The Right Wing Is Killing Women”: Far Right Ideology Is Trumping The Health Needs Of Millions Of Americans
According to a report released last week in the widely-respected health research journal, The Lancet, the United States now ranks 60th out of 180 countries on maternal deaths occurring during pregnancy and childbirth.
To put it bluntly, for every 100,000 births in America last year, 18.5 women died. That’s compared to 8.2 women who died during pregnancy and birth in Canada, 6.1 in Britain, and only 2.4 in Iceland.
A woman giving birth in America is more than twice as likely to die as a woman in Saudi Arabia or China.
You might say international comparisons should be taken with a grain of salt because of difficulties of getting accurate measurements across nations. Maybe China hides the true extent of its maternal deaths. But Canada and Britain?
Even if you’re still skeptical, consider that our rate of maternal death is heading in the wrong direction. It’s risen over the past decade and is now nearly the highest in a quarter century.
In 1990, the maternal mortality rate in America was 12.4 women per 100,000 births. In 2003, it was 17.6. Now it’s 18.5.
That’s not a measurement error because we’ve been measuring the rate of maternal death in the United States the same way for decades.
By contrast, the rate has been dropping in most other nations. In fact, we’re one of just eight nations in which it’s been rising. The others that are heading in the wrong direction with us are not exactly a league we should be proud to be a member of. They include Afghanistan, El Salvador, Belize, and South Sudan.
China was ranked 116 in 1990. Now it’s moved up to 57. Even if China’s way of measuring maternal mortality isn’t to be trusted, China is going in the right direction. We ranked 22 in 1990. Now, as I’ve said, we’re down to 60th place.
Something’s clearly wrong.
Some say more American women are dying in pregnancy and childbirth because American girls are becoming pregnant at younger and younger ages, where pregnancy and birth can pose greater dangers.
This theory might be convincing if it had data to support it. But contrary to the stereotype of the pregnant young teenager, the biggest rise in pregnancy-related deaths in America has occurred in women 20-24 years old.
Consider that in 1990, 7.2 women in this age group died for every 100,000 live births. By 2013, the rate was 14 deaths in this same age group – almost double the earlier rate.
Researchers aren’t sure what’s happening but they’re almost unanimous in pointing to a lack of access to health care, coupled with rising levels of poverty.
Some American women are dying during pregnancy and childbirth from health problems they had before they became pregnant but worsened because of the pregnancies — such as diabetes, kidney disease, and heart disease.
The real problem, in other words, was they didn’t get adequate health care before they became pregnant.
Other women are dying because they didn’t have the means to prevent a pregnancy they shouldn’t have had, or they didn’t get the prenatal care they needed during their pregnancies. In other words, a different sort of inadequate health care.
One clue: African-American mothers are more than three times as likely to die as a result of pregnancy and childbirth than their white counterparts.
The data tell the story: A study by the Roosevelt Institute shows that U.S. states with high poverty rates have maternal death rates 77 percent higher than states with lower levels of poverty. Women with no health insurance are four times more likely to die during pregnancy or in childbirth than women who are insured.
What do we do about this? Yes, of course, poor women (and the men who made them pregnant) have to take more personal responsibility for their behavior.
But this tragic trend is also a clear matter of public choice.
Many of these high-poverty states are among the twenty-one that have so far refused to expand Medicaid, even though the federal government will cover 100 percent of the cost for the first three years and at least 90 percent thereafter.
So as the sputtering economy casts more and more women into near poverty, they can’t get the health care they need.
Several of these same states have also cut family planning, restricted abortions, and shuttered women’s health clinics.
Right-wing ideology is trumping the health needs of millions of Americans.
Let’s be perfectly clear: These policies are literally killing women.
By: Robert Reich, The Robert Reich Blog, May 12, 2014