Health Care

Mapping the ACA

(Flickr/GenBug)
Via Sarah Kliff, here's a great graphic from Kaiser Family Foundation laying out how funds from the Affordable Care Act are being distributed across the country: In total, over $12 billion has been handed out to state governments and private entities to implement the provisions of the ACA. Breaking it down by state, California—the first state to setup their own health exchange—has received the lion's share of funding, taking in over $1.1 billion. Other population heavy states such as New York, Texas, Michigan, and Ohio have taken in large sums as well. These funds aren't just being channeled to state governments; rather the lion's share has been directed to assist private entities. In Michigan, for example, $184 million in federal funds have gone to the state government but $630 million has been directed to private entities, mostly business to help with the costs of providing care. You can look at the full breakdown of funds on Kaiser's interactive map here .

What's in a Name?

(Flickr/LaDawna's pics)
Liberals often complain about the Democrats’ seeming inability to message their ideas with the same consistency and verve as conservatives. It just never seems like the party has the same discipline in its talking points. Congressional Dems' messaging during the health-care reform legislation in 2009 is a case in point. Rather than taking their cues from Republicans (despite the atrocious polices it entailed, naming a bill the PATRIOT Act immediately after 9/11 was a genius tactic), Democrats went for the unmemorably named "Patient Protection and Affordable Care Act." It’s not like Democrats are clueless to such tricks—the campaign finance disclosure bill they’ve proposed after Citizens United had the fitting acronym DISCLOSE—they just didn’t bother in this instance. The party soon paid the price, as Republicans called it "Obamacare" and said it was the living symbol of a tyrannical president imposing his socialist visions for the rest of the country. It was a term Democrats battled...

Of Course a Decision Striking Down the ACA Would Be "Judicial Activism"

WikiMedia commons.
Orin Kerr outlines a five-part test for whether a decision can be called "judicial activism" as a means of assessing whether the label could be fairly applied to a decision striking down the Affordable Care Act. Roughly, the criteria are: 1) whether the decision was motivated by the policy preferences of judges; 2) whether it expands judicial power for future cases; 3) whether it was inconsistent with past precedents; 4) whether it struck down a "law or practice"; and 5) whether the decision was "wrong." On three of the first four criteria, Kerr essentially agrees that a decision striking down the ACA would be "activist." On points No. 3 and No. 4, he concedes explicitly (while arguing, plausibly enough, that No. 4 isn't a useful criterion in a country with firmly established judicial review). On No. 1, he all but concedes, arguing that "if the votes line up in the predictable political way, then claims of activism based on argument #1 will be common." Given this, we can go ahead and...

Judicial Review Doesn't Mean What You Think It Means

(AP Photo / J. David Ake)
Last night while I was asleep, highly placed sources whom I cannot identify (because they don’t exist) assured me that Attorney General Eric Holder originally wrote this first draft of a letter he was ordered to submit to Judge Jerry Smith of the Fifth Circuit. The final letter has quite a different tone. But those of us who cherish the rule of law can dream that he might have actually sent Judge Smith the following instead. Judge Jerry E. Smith Circuit Judge Fifth Circuit Court of Appeals Dear Judge Smith, Lawyers tell an anecdote about a psychiatrist who finds himself in heaven. St. Peter says, “We’re so glad you’re here, we have a psychiatric emergency!” The psychiatrist is puzzled. “How can that be?” he asks. “Surely the souls of the blessed are free from all pain and torment. Why would they need a psychiatrist?” “It’s not the blessed,” says the saint. “It’s God. He has terrible delusions of grandeur—he thinks he’s a federal judge!” This story came to mind when I learned that on...

Three Roads from the Supreme Court

None of the options for health-care reform is ideal, but the most likely path forward would be through action in the states.

(AP Photo/J. David Ake)
(AP Photo/J. David Ake) People wait in line overnight in front of the Supreme Court for tickets on the eve of oral arguments before the court on President Obama's health care legislation, in Washington, Sunday, March 25, 2012. S itting in the Supreme Court on March 27, I was stunned by the oral argument on the Affordable Care Act (ACA). From their first questions to Solicitor General Donald Verrilli, the conservative justices seemed to echo the arguments against the individual mandate that the opposing lawyers had set out in their briefs. When it was over, I was not 100 percent sure that Justice Anthony Kennedy would vote to overturn the mandate and related penalties. But if he does, the Court may well strike down the law’s other critical provisions, staging what amounts to a conservative judicial coup. What then? Three general alternatives stand out for health-care reform. Let’s call them the minimalist bypass, the great mountain highway, and the road through the states. The...

The Long Moral View

Map of the uninsured by NPR
Someday, all Americans will have access to health care, just as all people in Germany and France and Japan and Sweden and every other advanced industrialized democracy do today. It may take a decade or two after the implementation of the Affordable Care Act in 2014 (if it survives the whims of Anthony Kennedy) to fill in the gaps the law leaves behind, or it may take decades beyond that. But it will surely happen eventually. And at some point after it does, we'll come to a consensus as a society that it was a collective moral failure that we allowed things to be otherwise for so long. In those other countries they came to that realization some time ago, and today they look at us and shake their heads in amazement that their American friends could tolerate and even defend such needless and widespread suffering in their land. But our own collective moral sensibilities still have a good way to go. Over at the New Republic, Andrew Koppelman describes the striking parallels between the...

In New York, a Bipartisan Call for Reproductive Rights

(Flickr/M. Markus)
A few weeks ago, Teresa Sayward did the unthinkable. The New York state Republican assembly woman told a state news program that she'd consider voting for Obama. "I really, truly think that the candidates that are out there today for the Republican side would take women back decades," she said on Capitol Tonight. Apparently, she's not the only one worried about her party's direction on women's health. A new story from North Country Public Radio highlights Sayward and fellow Republican Janet Duprey, who are both supporting the Reproductive Health Act, which would codify access to abortion and contraception. Sayward is one of the co-sponsors. In the segment, Duprey spoke out about her own commitment to women's health. She noted her own adolescence in the early '60s, when women and girls had few options. "We can never return to that era," she told the radio station. "We absolutely cannot." As the Prospect 's Jamelle Bouie noted Monday, the GOP's efforts to restrict access to...

Don't Wish For Judicial Overreach

Wikimedia Commons.
Given the hostility the Republican appointees on the Supreme Court showed to the Affordable Care Act during oral arguments this week, some progressives are seeking a silver lining. At least, some have argued, striking down the ACA would substantially undermine the legitimacy of the conservative-dominated federal courts. And even better, particularly if the Supreme Court strikes down the individual mandate while allowing the rest of the legislation to remain in operation, there’s the possibility that the resulting pressure on insurance companies facing an adverse-selection spiral would lead to a health care reform package better than the ACA. Should progressives see conservative judicial overreach as being as much opportunity as crisis? Alas, sometimes a devastating defeat is just a devastating defeat. Claims that striking down the ACA will substantially undermine the legitimacy of the Supreme Court are part of an extensive tradition of predictions that have generally turned out to be...

After the Affordable Care Act

Flickr/José Goulão
Today, the members of the Supreme Court will meet in private to begin deciding the fate of the Affordable Care Act, and the millions of Americans whose lives and futures stand to be made more secure because of the ACA. It's entirely possible that Anthony Kennedy will discover some place in his heart where integrity and a respect for the true role of the Court are supposed to be and the Act will be upheld, but at the moment you won't find too many people willing to bet on it. So I'd like to spend a few moments working through what might happen if the Court takes the middle course, which could be the most likely—striking down the individual mandate, but leaving the rest of the law intact—both in the short and long term. The immediate problem would be the fact that the individual mandate is what makes the law's most popular provision, the end of exclusions for pre-existing conditions, possible. Once nearly everyone is insured, the risk pool is expanded and insurance companies can...

Predicting the Supreme Court Vote

Flickr
This is from political scientist Michael Evans , and was originally posted to a law and courts listserv. I thank him for sending it along: ***** I was curious about the relative number of words directed at the two sides in yesterday’s oral argument and thought the results would be of interest here. For those not familiar with the research on this (see below), it has shown that Justices tend to direct more questions and words at the side they eventually vote against. (Questions and words are highly correlated, but I prefer words because questions are harder to define.) The theory is that Justices generally do not play “devil’s advocate”—asking questions to help the side they support—but, rather, attempt to expose what they see as the weaknesses of the other side’s arguments. This table shows the relative number of words uttered by each Justice to the two sides regarding the constitutionality of the individual mandate under the commerce clause. As is typical, Thomas did not ask any...

The Nine Circles of the ACA

(Flickr/diacritical)
Nobody was doing well by the time oral arguments in the Health Care cases ended at 2:30 p.m. Wednesday. Some Justices were sniping back and forth. The lawyers were showing the strain. And Justice Antonin Scalia was telling jokes. “[Y]ou know—the old Jack Benny thing, Your Money or Your Life, and, you know, he says ‘I'm thinking, I'm thinking,’” Scalia said from the bench. “It's—it's funny, because it's no choice. ... But ‘your life or your wife’s,’ I could refuse that.” “He’s not going home tonight,” Justice Sonia Sotomayor threw in as the crowd laughed. “That’s enough frivolity for a while,” Chief Justice John Roberts (nobody’s straight man) said sternly. I think he, like me, was afraid we would never get home that night, as if the Supreme Court had sailed into some forensic dimension where the clock hands were frozen in ice. If you want to know how strange things got, consider that a Justice of the United States Supreme Court suggested that the Court should invalidate the entire 2,...

How Far Will the Supreme Court Go?

"Balls and strikes" my ass. (Flickr/DonkeyHotey)
Just a few days ago, most people ( including me ) thought that while Thomas, Scalia, and Alito might display their naked partisanship in deciding the fate of the Affordable Care Act, both Anthony Kennedy and Chief Justice John Roberts, concerned with maintaining the Court's legitimacy and integrity, would surely uphold the law. And now after the spectacle the justices made of themselves for three days, everyone seems certain that the law is doomed, in whole or in part. And it really was a spectacle, one in which, as E.J. Dionne says , the "conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee." What, you thought the Supreme Court's job wasn't to decide if they personally like a particular law, but whether it's constitutional? How quaint. Justice Scalia even asked whether if the government can regulate the insurance industry, it can make you buy...

Obama Rallies the Planned Parenthood Troops

(Photo: screenshot from Planned Parenthood video)
Republicans haven't been quite as eager to moralize against contraception after Rush Limbaugh gave voice to their true feelings, but Democrats aren't ready to let their argument that the GOP is waging a war on women slip by the wayside. Mitt Romney, a candidate who rarely seems comfortable when the discussion strays from the economy, is hoping that the issue will become a non-factor once he officially dismisses Rick Santorum and heads to the general election. Barack Obama clearly has a different view. The president issued a new subtle attack yesterday in a video where he directly addresses supporters of the Planned Parenthood Action Fund. "For you and for most Americans protecting women's health is a mission that stands above politics," Obama says in the two-minute video. "And yet over the past year you've had to stand up to politicians who want to deny millions of women the care they rely on, and inject themselves into decisions that are best made between a woman and her doctor." The...

Anti-Abortion Measures Die with a Whimper

(Flickr/World Can't Wait)
Women's health and abortion access have dominated state legislatures across the country and, until recently, dominated the headlines as well. But as legislative sessions are wrapping up and final decisions get made, there's been less focus on the issues. Perhaps it's because, in several cases, the bills are dying with whimpers instead of bangs. This week, many of the measures look doomed. Idaho's pre-abortion sonogram bill died Tuesday, with pro-life activists accepting defeat—at least for this year. According to the Spokesman-Review , House State Affairs Chair Tom Loertscher worried that the controversy around the sonogram could threaten the state's other anti-abortion measures. The bill did not have any exemptions for rape or incest and would likely have required invasive, transvaginal sonograms—the kind that got Virginia so much attention. Right to Life of Idaho has said it plans to bring the bill back next year. In Pennsylvania, a similar sonogram measure has stalled after...

The Best Signs from Yesterday's Tea Party Rally

(Photo: Patrick Caldwell)
Tea Partiers descended on the Capitol Tuesday afternoon to voice their disapproval of Obamacare as the Supreme Court debated the constitutionality of the individual mandate, which will require citizens to purchase health insurance or else face a nominal fee once the bill has been fully implemented in 2014. Initially a conservative solution—originating at Bush's favorite think tank The Heritage Foundation—the mandate has come to symbolize conservative distaste with the bill that will expand coverage to millions of currently uninsured Americans. The rally on a lawn north of the Capitol was hosted by Americans for Prosperity, the Koch brothers' political arm that has funded many of the Tea Party's major gatherings. AFP president Tim Phillips kicked off the proceedings, leading the crowd in chants of "repeal the bill." A sea of over a thousand Tea Partiers—largely middle-aged or elderly, and almost all white—in red "Hands Off Health Care" t-shirts were in attendance from across the...

Pages