Health Care

Will the Supreme Court Duck Health Care?

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The great legal theorist Alexander Bickel advocated that courts use "passive virtues"—that is, using invented jurisdictional reasons to not hear politically contentious cases. The political scientist Mark Graber has tweaked this concept to describe passive-aggressive virtues —the tendency of the great Chief Justice John Marshall to expound on his theories of constitutional law while deciding cases on grounds that left opponents no means of opposing the Court (usually because they ended up with the policy they wanted.) In an intriguing article for Slate, David Franklin argues that the Roberts Court could duck the constitutional challenge to the Affordable Care Act using these methods. The Court, Franklin notes, could simply decide not to decide by holding that the legal challenge to the ACA is prohibited by the Tax Anti-Injunction Act . This would keep the court out of the political firestorm for the time bring while refusing to give Obama a political victory by clearly declaring the...

The Supreme Court, Health Care Reform, and Electoral Politics

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Last week I participated in a roundtable that on these issues, along with other GW faculty from public health and law—Sara Rosenbaum, Peter Smith, and Katherine Hayes—as well as former U.S. Senate Finance Committee staffer Mark Hayes and former House Commerce Committee Health Subcommittee Counsel Andy Schneider. You can find a synopsis here and the video here . My remarks centered on implications of health care reform for the 2012 election (as I previously wrote about here ). How might the Court’s decision affect the politics of the issue for the election? First, it’s likely that the Court’s decision—no matter what it is—won’t much affect overall public support or opposition to the Affordable Care Act. Court decisions often simply polarize approval—as in this study of Roe v. Wade. There are already early indicators that this will happen. In a March 2012 Kaiser Family Foundation poll , respondents were asked how they would feel if the court rules the individual mandate unconstitutional...

The Affordable Care Act On Trial

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Today the Supreme Court begins hearing oral arguments to determine the constitutionality of the Affordable Care Act. It's the timid (or maybe wise) pundit who fears making predictions, so I'll go ahead and say this: the Court is going to uphold the ACA, by a vote of 6-3. Chief Justice John Roberts will join the four liberal justices and Anthony Kennedy in the majority, and Roberts will write the decision. Justices Scalia, Thomas, and Alito will offer a vigorous and at times comically overstated dissent, in which they will decry the end of the freedom that universal health coverage will bring. That may just be optimism talking; I've certainly allowed my hopes to outrun good sense before. There's a voice inside me that says "Don't forget Bush v. Gore !" In other words, the Court is perfectly capable of acting in a nakedly partisan manner if it so chooses, so the five conservatives could well decide that the opportunity to undo a Democratic president's signature domestic policy...

Single-Payer and the Supreme Court

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When the Supreme Court begins its extraordinary three days of hearings on the constitutionality of the Affordable Care Act, one of the oddities will be an amicus brief challenging the act’s individual mandate from 50 doctors who support national health insurance. They point out the inconvenient truth that, contrary to the administration’s representations, the government did not need to require citizens to purchase insurance from private companies in order to meet its goals of serving the health-care needs of the populace. Congress could have enacted a single-payer law. Since the Constitution unambiguously gives Congress the power to tax, there has never been a serious constitutional challenge to our tax-supported systems of health insurance, Medicare, and the services of the Veterans Health Administration system. In the words of the brief: Amici thus submit this brief for the purpose of disputing the primary tenet of the Government’s position, that Congress cannot regulate the...

Now Is the Law of Their Discontent

(Flickr/S.E.B.)
To paraphrase Ecclesiastes, of the making of many briefs there is no end, and much study is a weariness of the flesh. My flesh is weary after weeks of poring over the party and amicus briefs in the Affordable Care Act cases, which (in case you haven’t heard) will be argued next week. There are four overall issues in the case: (1) is the minimum-coverage requirement (or “individual mandate”) a permissible use of the Commerce Power? (2) If not, should the Court strike down the entire Act or only the minimum coverage requirement? (3) Is the bill’s requirement that states receiving Medicaid funds expand eligibility for low-cost health-care “coercive” to state governments? And (4) is the entire lawsuit against the “minimum coverage” provision barred by the federal Tax Anti-Injunction Act until after the provision takes effect in 2014 and some taxpayer has been forced to pay the tax penalty for not carrying health insurance? If those don’t seem to flow in logical order, they don’t—(4)...

GOP Senator Defends Planned Parenthood

(Flickr/JRockefellerIV)
The last time Texas Senator Kay Bailey Hutchison took on Rick Perry, things didn't go so well. Hutchison, among the most popular politicians in the state at the time, was the favorite to win the Republican nomination, and instead Perry rode into the general with overwhelming support. Among Hutchison's key problems—besides simply running a bad campaign—a nagging reputation as a moderate, who was at least somewhat pro-choice and who'd voted for the bank bailout. After the disappointing finish, she later announced she wouldn't run for re-election in the Senate. This may be her last year in politics. And evidently, she's decided that it's no time to back down from her political rival. On MSNBC Thursday morning, the senator openly criticized Perry's decision to defund Planned Parenthood and jeopardize the state's federal funding for the Women's Health Program. "We cannot afford to lose the Medicaid funding for low income women to have health care services," she said. "We cannot." Hutchison...

On Medicare, Republicans Continue to Be Admirably Foolish

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Today, House Budget Committee chairman and GOP heartthrob Paul Ryan will release his latest budget proposal, and all right-thinking Republicans will line up to express their support (you may remember what happened to Newt Gingrich in May when he criticized a previous version of Ryan's plan and was punished for his heresy, then quickly backtracked). And I have to say, Republicans deserve some credit for this. Not because their plan to privatize Medicare will actually be good for seniors (it won't) or for the budget (it won't). But because in the face of nearly inevitable political damage, they forge right on ahead. It isn't often you see politicians suffer politically for a position they take, then come right back and try it again. And it wasn't like they didn't know it was coming. After all, Democrats have been gleefully accusing them of trying to dismantle Medicare for decades, and so when they put forward a plan to actually dismantle Medicare, everybody knows what will happen:...

The Difference Between Contraception and Mainlining Heroin

(Flickr/romana klee)
Last week, I mentioned two state legislatures had passed abstinence-only sex education bills . While Wisconsin's governor was already supportive of the measure, in Utah, Governor Gary Herbert was less certain. The measure would have banned any discussion of contraception, or for that matter, homosexuality. The current law in Utah already requires parents to "opt-in" if the course includes discussion of contraceptives, but this measure would have actually removed even the option for students to learn about more than simply abstinence. It had passed overwhelmingly in both chambers, despite protests and opposition from the state PTA and teachers' groups. Late Friday, after protests, phone calls, and significant pressure from both sides, Herbert announced he had vetoed the measure . In his statement , he said he was unwilling to say "the State knows better than Utah's parents," noting a majority of parents choose to have their children learn about contraception. Herbert described himself...

State of the Week

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This week's state of the week is ... Texas! The Lone Star State has been in the headlines a lot this week—and not just because South by Southwest is here. First there was the news that the Department of Justice blocked enforcement of the state's stringent and controversial voter ID measure . According to a letter from the DOJ, the state failed to show how it would deal with rural voters or the disparities between Hispanic and non-Hispanic voters in terms of who already has valid photo identification. While the case is already headed to the D.C. District Court, that's hardly the only battle between the feds and Texas lawmakers. Governor Rick Perry is also blaming the Obama administration for dismantling the state's Women's Health Program . The administration ruled it could not approve $35 million in federal funding for the program after the state opted to bar Planned Parenthood, despite that the organization served 40 percent of WHP recipients. Planned Parenthood toured the state in...

Abstinence-Only Education Making a Comeback?

Maybe we can start bringing these books into the classroom too. (Flickr/romana klee)
Here's a way to save time debating women's health. Rather than allow people to fight and debate the issues around birth control and access to healthcare, simply don't tell them key facts about contraception and sexual health. That way, rather than fighting, kids will be blissfully ignorant. Or, you know, rely on the wisdom of my sister's best friend's cousin who says you definitely can't get pregnant if it's a full moon. Legislatures in both Wisconsin and Utah have passed abstinence-only education bills. It's now up to governors in both states to determine whether or not to make the measures law. Utah's proposal is significantly more stringent. It would actually ban schools from teaching about contraceptives—and, for that matter, homosexuality. The Deseret News reports that hundreds of protesters have flooded the capitol, asking Governor Gary Herbert to veto the bill. The governor has said the public efforts against the measure won't sway him; according to the News , a survey at...

Silver Lining for the Ladies

Women protesting at White House in 1917
Tigger and Eeyore are battling it out inside me this week. I can’t tell whether to be depressed over what Maureen Dowd calls “the attempt by Republican men to wrestle American women back into chastity belts” or invigorated by the myriad ways women are chronicling it and fighting back. Are women really gonna get dragged back to the scarlet-letter era—why not just repeal the 19th amendment!—or is all this going to set off a revitalized third feminist wave? Eeyore: In a surreal move, the Arizona Legislature’s Senate Judiciary committee has introduced a bill that would: … permit employers to ask their employees for proof of medical prescription if they seek contraceptives for non-reproductive purposes, such as hormone control or acne treatment. If she’s slutty enough to be using it to have sex, well, no coverage for her! Tigger: Hey, at least it’s time to stop being ambivalent about the SlutWalks ! It sure has become clear that that particular eruption of take-back-the-word feminist...

Texans Fight Back Against Cuts

(Flickr/WeNews)
It's hard to overstate just how dire the situation is around women's health care in Texas. The state has the third highest rate of cervical cancer in the country and one in four women are uninsured. After cutting family-planning funding by around two-thirds last legislative session, conservative lawmakers are now standing by their decision to cut off Planned Parenthood from the state's Women's Health Program, a move that ended $35 million in federal funding. (Here's a timeline of the fight .) Governor Rick Perry, who bragged about the decision at the recent CPAC conference, has said he'll find the money to keep the program—while still barring Planned Parenthood. No one seems to know exactly where he'll find the money, given that the state has already underfunded Medicaid by $4 billion last session. In the meantime, Planned Parenthood, which serves 40 percent of the 130,000 who rely on the Women's Health Program, has already had to shut down more than a dozen clinics . Non-Planned...

Republican State Legislators Shoot Selves in Foot, Help Citizens

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One of the main features of the Affordable Care Act is the creation of 50 state-based health-insurance exchanges, online marketplaces where people and small businesses will be able to easily compare competing plans and select the one they prefer. If you're buying insurance on the individual market after the beginning of 2014 (but not if you get your insurance through your employer like most people), your state's exchange is where you'll go. While the federal government establishes a baseline of requirements for what plans offered through the exchange must contain, each state will determine exactly how theirs will work. But after the ACA was passed, and especially after the 2010 election where Republicans won huge gains at the state level, a lot of states run by Republicans refused to take any action to create their exchanges. Like a Catholic bishop looking at a package of birth-control pills, they retched and turned away, not wanting to sully their hands at all with involvement in...

What Does the ACA Do for You?

(Flickr/Barack Obama)
The Affordable Care Act (ACA) is the landmark piece of policy for Obama's first term. Save perhaps his response to the Great Recession, the ACA is likely to be the primary measure by which his presidency will be judged in the history books. As long as it is fully implemented, it should help millions of uninsured Americans by shifting more people onto Medicaid, providing subsidies for low-income workers, and forbidding insurance companies from excluding customers based on past illness. The Obama campaign released an interactive flow chart yesterday. One inputs their demographic data—age, sex, and income, for example—and the program spits out various ways the ACA has improved your health-care coverage. As someone who has private insurance, it showed me a list of services my insurance will now be required to cover at no extra charge and highlighted the fact that 80 percent of my monthly payments must be used on funding health service. It also informed me that, thanks to my salary level,...

The Obama Campaign Takes on Health Care

Obama campaign video
The Obama campaign has decided to make the case for the Affordable Care Act, with a series of videos and ads highlighting people who are being helped by the provisions already in effect. They are, unsurprisingly, expertly produced and extremely moving. Take a look at this one: I'm sure Republicans will object that this is too emotional and manipulative. But guess what? There actually are real people's lives at stake. This issue isn't just about ideological principles, or about a political calculation of how the ACA will affect the two parties over the coming decades. Those things aren't completely irrelevant, but much more important are the costs and benefits to living human beings. How persuasive will this be? Well, it isn't as though every voter is going to be sat down and shown John Boehner or somebody saying "If the government mandates that you buy health insurance, you might as well be living in the Gulag!" then get shown this video. If that were the case, it'd be no contest. But...

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