“We Will Not Be Denied”: Giving Women Maternity Care Is Illegal. Really?
We all know that the health care law signed by President Obama in 2010 has its detractors. It’s a shame. The law goes a long way to expanding access to health care for women. It’s not perfect, but the law does some really important things, like ending gender discrimination in health care and making sure insurance coverage includes services women need like maternity care. But, a majority of Missouri State Representatives do not agree with me. In fact, they loathe this law so much that the House of Representatives recently passed a bill that would make it illegal to implement the health care law. The bill states, “Any official, agent, or employee of the United States government who undertakes any act within the borders of this state that enforces or attempts to enforce any aspect of the federal Patient Protection and Affordable Care Act is guilty of a class A misdemeanor.”
Wow, a class A Misdemeanor for implementing the health care law? This is serious stuff. And it’s pretty unfortunate because Missouri could stand to improve health care access for women.
Here is what’s not working in Missouri: 100% of health plans in the individual market in Missouri charge women more for the same health coverage than if they were men and no health plans in the individual market provide maternity services for women.
These policies should be illegal, and under the health care law, they will be.
The health care law is already helping women and families in Missouri. Health plans must now cover preventive services such as mammograms, flu shots, and colon cancer screenings at no additional out of pocket costs such as co-payments. Over 408,000 women in Missouri are receiving preventive services without a co-payment. The law also allows young adults to remain on their parents’ health insurance until age 26. Nearly 40,000 young people in Missouri have gained coverage thanks to the law. And this is just the beginning. Women will experience even more benefits as the law is fully implemented in 2014.
Despite these advances, legislators in Missouri want to make it illegal to implement the law. It’s illegal to make sure women have maternity coverage? It’s illegal to insist women should not have to pay more for the same health coverage as men?
Don’t let the opponents have their way. We will not be denied.
By: Anna Benyo, Senior Health Policy Analyst for Health and Reproductive Services, National Womens Law Center, NWLC Blog, April 23, 2012
“The Inactivity Room”: The Fruitless Search For The Supreme Court’s Rationale
Yesterday, Ben Smith quoted a conservative lawyer offering a way the Supreme Court’s conservative majority may think about striking down the Affordable Care Act. Essentially, this lawyer said, they think that the last 70 years of the Court’s interpretation of the Constitution’s commerce clause, which underlies much of what the modern American government does, is a giant fraud perpetrated by liberals. Even though they know they can’t toss out that last 70 years all at once, they have no problem finding some ridiculous justification for striking down the ACA, no matter whether they really believe it or not. “You have built a fantasy mansion on the Commerce Clause,” the lawyer tells Smith. “You can hardly blame us if, in one wing of this mansion, down a dusty corridor, we build a fantasy room called ‘inactivity,’ lock the door, and don’t let you in.” None of us have any way of knowing if this is what the justices are actually thinking, persuasive as it sounds. But there’s something going on among liberal commentators, both those who think the Court will strike down the ACA and those who think they might uphold it, to try to look through the oral arguments in the case and in recent decisions to determine, not necessarily the outcome of the decision, but the reasoning that might accompany it. This, I fear, is fruitless.
I’ll get to why in a second, but here are a couple of good examples just from yesterday. At TPM, Sahil Kapur looks at Justice Roberts’ concurrence in a recent case to suggest that he may be particularly sensitive to preserving the Court’s integrity and reputation, which could lead him to be reluctant to take such a partisan action as overturning the signature legislation of a president from the other party. Jonathan Bernstein, in a post not far from the position I’m taking, says, “The core problem here is that those who want a pre-New Deal reading of the Commerce Clause and the rest of the Constitution want to impose something that, in practical terms, would be highly unpopular, affecting laws such as the minimum wage. There’s really no easy way to do what conservative judicial activists want to do. And that leaves them with options that are going to look, to most people, very arbitrary.” But I really don’t think they care.
If the Court’s conservatives do strike down the ACA, the reasoning they’ll use to do so is irrelevant. That’s the whole point of having a Court like this one: it’s all about the outcome. Let’s recall the most revealing line in the Bush v. Gore decision: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” In other words, don’t even think about ever trying to use this case as precedent for anything, because we don’t even believe what we’re saying. And the Roberts Court is even more conservative and partisan than the Court that decided Bush v. Gore was. William Rehnquist was replaced by Roberts (not much difference there), and the centrist Sandra Day O’Connor was replaced by the hard-right Samuel Alito. They would be more than happy to hang their invalidation of the ACA on the novel “inactivity” justification, then never consider the rationale again. Imagine there was some future piece of conservative legislation passed by a Republican president and Congress that regulated “inactivity” in some similar way, and liberals sued to overturn it. Is there anyone of any ideology who actually believes the conservatives on this Court would say, “Well, we’ll have to be consistent about this”? Of course they wouldn’t. The outcome is the only thing that matters.
So it isn’t that they’ll build a room called “inactivity” down that dusty corridor and lock the door. It would be more accurate to say that they’ll grab the nearest unlabeled closet and cram the ACA inside, leaving no room for anything else before they shove the door closed and break off the key in the lock. Then they’ll never look at the closet again, unless it serves the purpose of striking down more progressive legislation.
By: Paul Waldman, The American Prospect, April 9, 2012
“Black-Robed Partisans”: More Outbursts Of Republican Wingnuttery On The Federal Bench
I’m sure you’ve probably heard about this by now, but it’s a pretty remarkable story: a Fifth Circuit Court of Appeals Judge with the silent acquiescence of two colleague on a three-judge panel dealing with a secondary challenge to the constititutionality of the Affordable Care Act freaked out yesterday and demanded that the Department of Justice file an immediate statement repudiating what the judge chose to interpret as the president’s defiance of the power of judicial review. Here is CBS’ Jan Crawford’s updated report after reviewing audio of the incident:
In the hearing, Judge [Jerry] Smith says the president’s comments suggesting courts lack power to set aside federal laws “have troubled a number of people” and that the suggestion “is not a small matter.”
The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss “judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation.”
“I would like to have from you by noon on Thursday — that’s about 48 hours from now — a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the president,” Smith said. “What is the authority is of the federal courts in this regard in terms of judicial review?”
Smith made his intentions clear minutes after the DOJ attorney began her argument, jumping in to ask: “Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?”
Kaersvang replies yes, and Smith continues: “I’m referring to statements by the president in past few days to the effect, and sure you’ve heard about them, that it is somehow inappropriate for what he termed ‘unelected’ judges to strike acts of Congress that have enjoyed — he was referring to, of course, Obamacare — to what he termed broad consensus in majorities in both houses of Congress.”
In asking for the letter, Smith said: “I want to be sure you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts, through unelected judges, to strike acts of Congress or portions thereof in appropriate cases.”
Smith, who got his lifetime appointment from Ronald Reagan, is a conservative judge on a famously conservative circuit, notes ThinkProgress’ Ian Millhiser:
The United States Court of Appeals for the Fifth Circuit may be the most ideological court in the country. When the oil industry’s allies in Congress wanted to protect the industry from drilling lawsuits, they passed a bill trying to force those lawsuits into the reliably industry-friendly Fifth Circuit. When a high school cheerleader sued her school district after it made her cheer for her alleged rapist, the Fifth Circuit ordered the alleged rape victim to pay more than $40,000. When one of the court’s few progressives asked a series of probing questions to a prosecutor during a court hearing, Fifth Circuit Chief Judge Edith Jones yelled at him to “shut up” and asked him if he would like to leave the courtroom.
But Smith’s outburst of wingnuttery was pretty remarkable even by those standards. Orrin Kerr, a contributor to the generally conservative Volokh Conspiracy legal blog, initially called Smith’s gesture “extraordinarily embarassing to the federal judiciary,” and after listening to the audio backed down on that statement only to a small extent:
[T]he tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn’t help anyone.
For the most part, though, Smith is enjoying high-fives rather than rebukes from the conservative commentariat. And it’s all a real through-the-looking-glass moment for those of us who remember decades of conservative demonization of the federal courts and the arrogance of “unelected judges” thrwarting the popular will on civil rights, civil liberties, abortion, gay rights, and so on and so forth. Not that very long ago, the late Richard John Neuhaus, considered one of a small handful of the most important conservative thinkers in America, proposed what amounted to a right of revolution against the illegitimate “regime” of federal judges. Not every conservative agreed, but he received a respectful hearing for this extremist position.
But all previous positions, it appears, and all previous standards of appropriate behavior as well, must be abandoned when it comes to the overriding task of opposing Barack Obama. That’s fitting, given that the underlying issue here is Obama’s adoption of the individual health insurance purchasing mandate originally crafted by conservatives.
A lawyer friend of Kevin Drum’s offered him this immediate reaction to the Smith incident:
This is meant to embarrass the President. Full stop. Jesus, this is getting scary. It just seems like all out partisan war brought by the Republicans from all corners of the Government. They want to push it as far as they can. And then further. It’s incredibly destructive.
“They want to push it as far as they can” is a comment applicable to the conservative movement generally in its assault on the conventions of American law and government as generally accepted towards the end of the twentieth century. It’s just a little startling to hear its battle-cries echoed from the federal bench.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April 4, 2012
“Let Them Eat Broccoli”: Mitt Romney Doesn’t Have A Health Care “Replace” Plan
Congressional Republicans aren’t the only ones who don’t have a health care plan to comprise the “replace” part of repealing and replacing the Affordable Care Act. Mitt Romney doesn’t either, despite his protestations to the contrary. Here he is last week:
“It’s critical that we repeal Obamacare and, by the way, also replace it,” he said. “I think I’m the only person in this race who’s laid out what I would replace it with.”Romney said he plans to give a waiver to all 50 states discontinuing the president’s plan—known formally as the Patient Protection and Affordable Care Act—and returning healthcare responsibilities to the states. He wants to take Medicaid money administered by the federal government and give it to states as block grants. His plan also includes giving individuals the same tax break that companies get when they buy insurance for their employees, allowing individuals to buy insurance across state lines, and encouraging consumers to shop around for the least expensive medical services, creating competition among healthcare providers.
None of these proposals are actually health care reform. They don’t get at spiraling health care costs, at best they just shift costs on to states and consumers. The idea that a patient is going to shop around for the least expensive medical service is utterly laughable. “So, Regional Medical Center Y says they’ll do my chemo treatments for $120K. Can you beat that price, Regional Medical Center X?”
Of course, Romney has a more comprehensive reform plan in his back pocket, the one he invented for Massachusetts that provided the template for Obamacare. But he can’t trot that out, since it’s his biggest liability with his base. So he happily pretends that bankrupting Medicaid and telling people to negotiate the cost of their care is reform, hoping that the lack of a plan will make people think he’s a real Republican. In other words, he’s a fraud, too.
By: Joan McCarter, Daily Kos< April 3, 2012
“Unacceptably Apart From The Rest”: In Healthcare Debate, The Supreme Court Is Risking Its Legitimacy
April first has not rinsed the Supreme Court out of my hair.
Disturbing my peace of mind: the arrogance of Antonin “Nino” Scalia and his four fellow “conservatives” (almost too good a name for what they are if they dismantle President Obama’s healthcare law). Piquing my patience: the journalistic myopia leading up to this moment.
If five unelected men dare to do that, that would be a radical affront to the constitutional authority of the president and the Congress, who both represent the voices of the people. They call the three branches of government a balance of power. Very nice. But in practice, considering the Supreme Court led by Chief Justice John Roberts, all bets are off.
Hearing their voices last week during the case’s oral arguments awakened me—and many of us—from a slumber of apathy about the high court. In general, the justices are a given, a group of nine who rule from a beautiful marble building. We the people can’t do anything about the Republican majority of five—even if we believe Clarence Thomas is a scoundrel who has no place in deciding other people’s fates. They are removed in their black robes, resistant to cameras capturing their proceedings, and altogether mysterious to the public. You can’t even walk up the famous front steps anymore. The cloistered “brethren” like things that way, literally above it all.
Now it’s clear as an April morning: They are unacceptably apart from the rest of us. A nation of 300 million cannot tolerate five men (appointed by George W. Bush, his father, and Ronald Reagan) making a huge medical decision involving life and death for the population. The political class and the press should start letting it be known the court had better not rule against a complex legislative achievement on its second try since Bill Clinton’s presidency. Doctors, nurses, citizen groups, write letters and go stage a demonstration. Let the court hear your voices in their marble manor, just as we’ve heard theirs, insolently comparing health insurance to broccoli—thanks for that, Nino.
In other words, my fellow Americans, don’t just wait for a decision to be handed down from on high. Healthcare reform is surely at stake with this momentous decision, but so is the popular legitimacy of this court.
Far from being fair-minded and deliberative, we are faced with a court characterized by five partisans—and I include Anthony Kennedy, seen as the swing vote. He has enjoyed glowing treatment from the Supreme Court cadre of journalists who have used him as a plot point for years. A Washington institution, he’s not the man in the middle now anymore than he was when he voted for George W. Bush in the Bush v. Gore debacle in 2000, giving new meaning to democracy’s “one man, one vote. ” That wasn’t even 12 years ago, people!
In the scene-setters for the case, I read too many articles in The New York Times and Slate—and heard one too many NPR stories—asserting Kennedy would be a “reasonable” or “moderate” key player in upholding the healthcare reform mandate for his legacy. In fact, one law correspondent said, “everybody” in the legal journalism community thought upholding “Obamacare” was a done deal—until the actual arguments started.
In covering a rarefied realm, journalists jointly create a narrative for a cast of characters—and perhaps get too close to their sources, as those sources aren’t going anywhere for a long time. In Congress across First Street, fresh faces and new blood are circulating every two years. The press galleries there resemble public school, while the press room in the court feels like a posh private school.
As the poet said, April is the cruelest month—at least until June crashes in.
By: Jamie Stiehm, U. S. News and World Report, April 2, 2012
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