High Court to Try Health Law This Week

The stakes will be high this week as the Supreme Court devotes three days of hearings to challenges to the Patient Protection and Affordable Care Act.  Not since the civil rights cases of the 1960s has the high court set aside so much time for oral arguments on a single topic.  The issues fall into three categories: jurisdiction, mandates and severability.  These issues will be argued successively by attorneys attacking and defending the Health Law, and when the court rules it will both determine the future of the Act passed two years ago this month and enter the middle of the election battle being contested this year.  Any decisions the justices reach will be rendered at the end of the court's session, probably in late June. 

The first issue to be discussed concerns jurisdiction, or more precisely, timing.  Since the parts of the law the plaintiffs object to haven't even taken effect yet, the court wants to hear why it is required to act now, since no one has yet been "injured" by the legislation.  An 1867 law, the Anti-Injunction Act, prevents court action on new taxes until they have begun operating.  Most court watchers do not expect this concern to derail the proceedings.

Next the justices will hear the meat of the oppenents' case, their objection to mandates.  The Act says almost all individuals and larger employers will have to buy health insurance or suffer financial penalties.  (Individuals already covered under employer-purchased plans will not need to make any changes.) Subsidies are to be made available for people with incomes below $80,000 on a sliding scale.  There are also mandates on states; they will have to cover everyone under medicaid who makes 133% or less of the poverty level, or suffer cuts in federal aid.  The Medicaid arguments will be heard Wednesday.  The Administration will contend that the Act adheres to the Constitution's grant of congressional power to "regulate commerce among the several states" and to do what is "necessary and proper" to "promote the general welfare."  For instance, the uninsured used $116 billion in health care in 2008, a cost that insurers pass on to the insured through higher premiums.  They will say the new law rights this inequity and serves a clear public interest.  Opponents will contend the mandate is a power not expressly granted by the Constitution and thus void.   If the court goes against the Medicaid mandate it will be overturning a principle it established earlier, when it allowed the federal government to threaten to withhold highway funds from states if they had legal drinking ages under 21.

Finally, the severability issue will determine whether the whole law must survive or fall as an indivisible whole, i.e. whether certain issues can be "severed" from the law and separately thrown out while keeping the rest in force.  If the court rules against the insurance mandate, what about the other requirements?  Will that strike down the provisions requiring insurers to cover children on their parents' plan until their 26th birthday, the bans on excluding people from coverage due to pre-existing conditions and of dropping them from coverage if they get sick, or the percentages insurers must actually spend on health care?  Those are the kinds of things that will be decided on the severability question. 

All in all, the case and eventual ruling figures to be one of the most momentous in decades.  Health care for 50 million people and the scope of congressional authority are clearly at stake.  The principles allowed or curtailed will shape policy and people's lives for many years to come.  



       

GOP Driving Women's Vote to Democrats

President Obama, by the conventional wisdom, ought to be vulnerable this November.  The economy is getting better, but more slowly than almost everyone had hoped.  While we have left Iraq, our forces remain in Afghanistan and developments there seem to get messier and more complicated all the time.  The deficit remains high and most of the Bush tax policy is still in place.  Gas prices have been going up.  None of these goings on are particularly advantageous for an incumbent seeking a second term.  Never mind that all of these problems either began on his opponents' watch or have been made worse by their obstruction during his tenure.  The top dog tends to suffer the blame when things are not going as folks would wish.

So as if to make the point that they really don't want to win this year, the Republicans have chosen this time to try to infuriate women on health issues.  The  Republican House doesn't want contraception to be covered in health plans even when insurance companies offer to provide it for free.  Their Presidential candidates want to end Planned Parenthood entirely, even though hundreds of thousands depend on it for regular checkups.  The GOP legislature and governor of Arizona want women to have to prove that if they are taking birth control pills it is not for contraceptive purposes.  Otherwise their employer would be able to fire them.  The GOP legislature of Virginia passed a provision mandating vaginally invasive procedures for women considering abortions.  Republican governments in Texas and Pennsylvania similarly want to get out the shaming sticks to try to control women's behavior.  Republican chairmen hold congressional hearings on women's health and bar any women from testifying.  When a woman complained about this Rush Limbaugh called her a "slut" and a "prostitute."  Without commenting on the sentiment behind them, the Republican presidential front runner said only that he "would not have chosen those words." 

In 2008 women supported Obama over McCain by 13 points--56% to 43% while men only preferred Obama by 1%--49% to 48% (source).  Instead of working to improve on that deficiency, Republicans seem intent on exacerbating it.  A Washington Post survey now shows Democrats with a 25-point lead in "caring about issues that are important to women."  There are various explanatory theories for the current Republican thrust.  The motive could be to respond to the zeal of the conservative fundamentalist wing of their Party.  It might spring from an irresistible streak of innate sexism they can no longer discipline themselves to suppress.  It has even been suggested it could be some sort of political death wish by which they are intent on permanently alienating the 53% of the electorate that is female.  It's not as though much male support is engendered by these positions.  The Post poll shows the requirement to include contraception in health insurance is supported by all respondents 61% to 33%, nearly two to one. 

Whatever the intent, Republicans have resurrected issues thought settled for 50 years that enjoy overwhelming public support.  (They also look to be writing off the Hispanic vote.  A Fox poll released last week shows Obama beating Romney 70% to 14% among Latinos.)  If a drastic course correction is not made soon, the approach bears all the signs of political suicide.

To sign Senator Dianne Feinstein's petition against these regressive attitudes and policies click here.

After Alabama and Mississippi: The Road Ahead

Results are now in for today's Republican presidential primaries in Mississippi and Alabama.  In both races, former Pennsylvania Senator Rick Santorum came in first, former Speaker of the House Newt Gingrich came in a close second and former Massachusetts Governor Mitt Romney came in third, a few percentage points back.  Representative Ron Paul finished far back in fourth place with single-digit percentages of the vote in both states. Look up the specific numbers here.

Here's what it means: For Rick Santorum, it is great news.  He has now firmly assumed the role of the main conservative alternative to Romney.  For Newt Gingrich, the air has officially left his balloon.  If the Southern regional candidate cannot win in the South, then what is his rationale for going on?  He was close, but in his home region he needed better.  Gingrich announced he would stay in the race but we are likely to see his numbers rapidly deflate in upcoming contests.  For Mitt Romney it was another opportunity lost.  He remains the front runner, but also remains vulnerable.  Wins in both Southern states would have basically locked up the nomination for him.  A win in one would have put his opponents on life support.  Instead, the fight will go on.  For Paul, the handwriting is on the wall as he slips into irrelevance.

Even if Gingrich stays in the race, his power to siphon votes away from Santorum, now the Un-romney, will have been severely weakened.  Santorum will get a better shot at a true one on one against him next Tuesday in Illinois.   A Romney victory would once again fire up his inevitability train and could well lead to putting the nomination effectively in his pocket by mid-April.  Romney will outspend Santorum by several magnitudes to one, but the Pennsylvanian will have the heart of the social conservatives.  It will be a real showdown on March 20.  If Santorum can win, expect panic in the GOP establishment.  He came close in Ohio and Michigan, so this is a real possibility with fewer anti-Romney votes being split with Gingrich.   

A Santorum victory in Illinois is a real possibility and could well lead to either a wild race to the finish between the two or even a war of attrition in which neither secures the necessary delegates to hold a majority when the party convention opens in Tampa.  The first brokered convention since 1952 would certainly be a sight to see, and not one for the squeamish.

What to Do About Contraceptive Coverage

One of the hot topics in the forefront of current public debate concerns the Affordable Health Care Act's requirement that contraception must be covered in health plans.  See the Department of Health and Human Services summary here.  While religious bodies that object to contraception are allowed to exempt their ministry employees from this coverage, the Obama Administration has ruled that the Act requiresthat employees not directly involved in the ministry of the body, such as employees of a church-owned hospital, must be covered.  In order to keep such religious bodies from having to pay premiums for services they do not agree with, health insurers have said they will be happy to include the coverage free.  Insurance companies have not made this offer out of charity; it's because paying for birth control pills is a lot cheaper than paying for prenatal care, delivery and health care for a child.  But this has not satisfied all the objectors.  Let's take a look at the positions.

Opponents see the mandate as an egregious intrusion of government control into the realm of religious free choice.  The U.S. Conference of Catholic Bishops, for example, decries the requirement on its website under the heading "unconscionable to require citizens to buy contraceptives against their will."  They and others see First Amendment ramifications that threaten religious liberty.  The Blunt Amendment (Senator Roy Blunt, R-Missouri) to the Health Care Act, which passed the House but was defeated in the Senate, would have allowed any employer to opt out of the mandate on religious, moral or other personally-held grounds.

Supporters see the mandate as providing needed services used by most women, and as a part of the larger issue of women's freedom to make their own decisions.  A survey by the Public Religion Research Institute covered in the Washington Post shows the majority of Americans support the mandate, with Catholics supporting it more strongly than the population as a whole.  The story points to other findings that 99% of all women and 98% of Catholic women have used artificial contraception at some point in their lives.

Since there are strongly-held principles in apparent conflict here, where should the balance of rights and interests be drawn?  It seems to me that the outline of a reasonable and just solution is clear, and it lies in personal choice.  To deny a widespread pharmaceutical practice used by virtually every American woman due to the objections of religious bodies smacks not of freedom of religion but of establishment of religion prohibited under the same First Amendment.  The statement of the bishops that anyone will be made to "buy contraceptives against their will" is completely wrong.  First, the employer will not be buying them.  Second, no woman is required to ask for or take them.  Only women who ask their doctor for a prescription for birth control pills will get one.  The idea that anyone will be forced to ingest birth control pills against her will is a complete invention and red herring.

In this way, the decision is where it belongs: with the patient.  Make the coverage available to all.  If anyone has a religious or any other objection, she may decline to ask for contraception.  But the decision should not be up to her employer, her preacher, her husband or any other person.  These may give advice, but as with any other medical decision in a free country, the choice is up to the patient.  Picture the shoe on the other foot: Imagine how it would go over if a man had to get permission from his boss in order to buy a condom.  If a boss is a Jehovah's Witness should he have the authority to keep any of his employees from getting a blood transfusion when they are bleeding to death?  If the boss is a Christian Scientist should he or she be able to deny employees antibiotics when they contract an infection because the boss doesn't believe in them, regardless of what the sufferer believes?  Under what principle do we give a person's employer the power to make life and death medical decisions, rather than letting people choose for themselves?  When viewed in this light the issue clarifies itself.  The mandate to cover everyone and let them decide their own medical needs for themselves is better from a public health perspective and more in accord with American concepts of personal liberty, including religious liberty.