Health Care

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

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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

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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...

Verrilli's Courage Under Fire

(AP Photo/Evan Vucci)
On December 10, 1935, during oral argument before a hostile Supreme Court, then-Solicitor General Stanley Reed collapsed at the lectern. (He recovered and went on to serve on the Court himself.) Let history show that Solicitor General Donald Verrilli did not stagger yesterday under a Four Horseman-style onslaught of conservative questioning that seemed to leave the government without a path to victory in the “minimum coverage” phase of the Health Care Cases. Yesterday's argument concerned the centerpiece of the Affordable Care Act (ACA): the minimum-coverage, or individual mandate, provision. Under this rule, taxpayers who are not covered by employer or government health insurance will, after 2014, be required either to purchase an individual policy or pay a penalty on their tax returns. The requirement is designed to widen the insurance pool so that two other parts of the Act—one requiring companies not to discriminate on the basis of health risk, and the other forbidding them from...

The Unsurprising Possibility that the Court Could Strike Down the ACA

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I was somewhat surprised, prior to this week's oral arguments, how optimistic some of my favorite legal and political observers were about the outcome of the Affordable Care Act case being argued at the Supreme Court this week. The court, predicted Dahlia Lithwick , "will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market." Linda Greenhouse foresees the Supreme Court upholding the law "by a wide margin." Kevin Drum also sees a 7-2 vote in favor of the ACA. Jon Chait argues that the law is clear, and acknowledges a chance the Supreme Court would simply ignore the law in the way they did in Bush v. Gore . I view things differently. I think there is a very real chance that the Court would strike down the law, and while I personally find these arguments exceedingly unpersuasive they're not "wrong" in the sense that they...

Americans Prefer Having Cake, Eating It

President Obama signs the Affordable Care Act.
The wise Harold Pollack has argued that health care reform is in some ways the best covered social policy story in the history of American journalism. That isn't to say there hasn't been plenty of crappy coverage, but there has never been the same volume of informed and insightful reporting and analysis available in so many places on a pressing policy debate. And yet it's easy to get depressed about the impact all that good work didn't have. From our perspective over here on the left, the arguments offered by reform's opponents are a collection of hypocrisy, faulty analysis, and outright lies. The public, unfortunately, hasn't really been persuaded. In the broadest terms, they mostly see health care reform through partisan lenses. In the particular, they want all the benefits without any of the responsibilities. I'm painting with a broad brush here, of course. But this morning the New York Times is out with a new poll on the Affordable Care Act that doesn't really show much that's new...

Why "Obamacare" (the Name) Won't Matter

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I don't know about you, but every time I read the term "Obamacare," I can't help but hear Michele Bachmann's voice saying it, in that singsongy Minnesota accent. But I guess Team Obama thinks I'm in the minority, because they've decided to go ahead and embrace the term. As David Axelrod wrote in an email to supporters, "Can you imagine if the opposition called Social Security 'Roosevelt Security'? Or if Medicare was 'LBJ-Care'? Seriously, have these guys ever heard of the long view?" Which is fine. There's nothing inherently pejorative about "Obamacare," unless you react with an involuntary retch every time you hear the name "Obama." The people who have used the term most enthusiastically up until now certainly do, so they thought that everyone else would be repelled by it. But the thing is, in the long run it doesn't really matter what we call the Patient Protection and Affordable Care Act. That's because unlike Social Security or Medicare, Obamacare isn't actually a program. Which...

A Decision Is Coming

A crowd of protesters outside the Supreme Court on the first day of ACA hearings (Photo: Patrick Caldwell)
The Supreme Court opened hearings today on the Patient Protection and Affordable Care Act—PPACA if we're going to be technical—but more commonly known as Obamacare. The six hours slotted for oral arguments are spread out across three days, and while the constitutionality of the individual mandate is the main issue at stake, there will be a host of other topics discussed, ranging from severability (whether the rest of the law can stand if the mandate is struck down) to whether Congress was within its bounds when it redefined Medicaid eligibility to include swaths of new people currently uninsured. I was outside the court this morning talking with protesters rallying for and against the bill (more on that to come later) but Prospect alum Adam Serwer was inside for Mother Jones listening to the judges debate the first issue at hand: can they even decide on the qualms with the law or do they need to wait until after 2014 when ACA is fully in effect? According to the 1867 Tax Anti-...

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...

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