Supreme Court Chief Justice John Roberts has for the second time helped preserve the Affordable Care Act, again by seeing sensibly through to what the intent of the law is. Not persuaded by plaintiffs’ contention that the four words “established by the state” forbid the federal government from providing subsidies in states that do not have their own exchanges, he also noted the consequences of cutting subsidies for millions of people:
The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. … Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them … If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.
Antonin Scalia again has put himself at the center of a decision with the petulant language he has chosen – this time precedent-setting – in siding with Clarence Thomas and Samuel Alito in the minority: “We should start calling this law SCOTUScare,” he wrote, which apparently is the first time the term “SCOTUS” has appeared in a SCOTUS decision. There was also this: “The cases [concerning the ACA] will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.” Finally, Scalia departed from custom by concluding his dissent with a concise “I dissent,” forgoing the adverb that typically divides the declarative: “respectfully.” Though it could be argued his use of it in previous dissents may have implied its absence.
In writing on the presidential candidacy of Bernie Sanders, E.J. discusses "The Two Santa Claus Theory" put forth by supply-siders in the 1970s and says that Sanders may be tapping into something:
The senator from Vermont has little chance of defeating Hillary Clinton for the Democratic presidential nomination. But he is reminding his party of something it often forgets: Government was once popular because it provided tangible benefits to large numbers of Americans...
Read all of "The New St. Nick" here.
And, among the highlights from our new issue is Robert Gascoigne writing on the affinities between Christians and the "secularists" who "share with Christians many of the key ethical values that can motivate and energize democratic political life."
[The] significant commonality of ethical and political ideals between secular humanism and the contemporary Catholic Church has a complex and turbulent historical background. The litany of suffering of members of the church at the hands of revolutionary political movements is a long and terrible one. Yet the relationship between the Catholic Church and movements for democratic change and social justice has happily, and surprisingly to many, developed into a shared commitment to defending human rights.
Read all of "Shared Commitments" here.
And, Rand Richards Cooper pens a Last Word on the troubling ubiquity of smartphones and the baffling "universal desire to be connected everywhere and all the time":
[T]hat’s America these days: people everywhere with their heads bent, fingertips flicking at their screens. Couples in restaurants, silently flicking. A schoolbus full of teenagers, heads bent as if in prayer.... But what happens when what we’re farming out is consciousness itself—the ability to be ourselves, with ourselves, amid the glories of creation?
In the fall of 2013, the Catholic University of America announced a $1 million pledge from the Koch Foundation, one of the many not-for-profit outfits with strong ties to the billionaire libertarians David and Charles Koch. The money, according to the university, would go to the business school, allowing it to hire professors and offer a course on "principled entrepreneurship." You may remember the Kochs from their charitable efforts to undermine public-employee unions, to support a campaign against renewable-energy standards, to suppress the vote, or to discredit the minumum wage (which the U.S. bishops want to raise).
A group of about fifty Catholic theologians certainly remembered. They sent a disapproving letter to Catholic University, voicing their concern that by accepting the grant, the university was sending "a confusing message to Catholic students and other faithful Catholics that the Koch brothers’ anti-government, Tea Party ideology has the blessing of a university sanctioned by Catholic bishops." But university president John Garvey and business-school dean Andrew Abela remained unmoved. They replied by pointing out that several of the professors cash paychecks from universities that accept Koch money, and accused them of trying to "score political points."
If any of those theologians were clinging to the hope that, given enough time, Garvey and Abela might come around to the idea that there's something odd about a Catholic business school accepting money from people who are so deeply committed shrinking the social safety net, cutting taxes, weakening environental regulations, ending the minimum wage, and busting unions, they can let go now. Because Catholic University's business school recently accepted another $1.75 million pledge from the Charles Koch Foundation (in addittion to $1.25 million from other donors).Read more
Yesterday, the Departments of Health and Human Services, Labor, and Treasury published a proposed new rule that would require all insurance plans available on the health-care exchanges to disclose whether they cover abortion in their summary of plan benefits.
As I reported last year, and earlier this year, finding out whether the plan you're shopping for includes abortion coverage has been nearly impossible. According to the new proposed rule, an insurer offering plans on a health-care exchange must explicitly indicate whether or not elective abortion services are included. That is, if such coverage is included, the summary of benefits must list it "in the covered services box," according to the proposed rule. If abortion is not covered, the insurer must list "abortion" in the "excluded services box." Finally, "plans that cover only excepted abortions [elective abortions] should list in the excluded services box 'abortion (except in cases of rape, incest, or when the life of the mother is endangered)' and may also include a cross-reference to another plan document that more fully describes the exceptions."
The new rule, if adopted, would strengthen another rule, proposed by the Obama administration last month, requiring insurers to disclose their plans' abortion coverage before a customer signs up for the policy. Previously the Affordable Care Act only required insurers to disclose abortion coverage "at the time of enrollment." It wasn't clear whether that meant before a person signed up for a plan, at some point after she had begun the signup process, or after she had already completed it. These two rules, if finalized, would allow customers shopping on the exchanges to readily tell whether the plans they're considering cover abortion well before they've purchased a policy.
According to a new rule proposed by the Obama administration, some insurance companies that sell coverage on the health-care exchanges will have to disclose whether their plans include elective abortion—before consumers enroll. The move comes a day after two prolife groups launched a website to help consumers determine which plans available on the exchanges cover abortion. They note that in four states the exchanges offer no plans that exclude elective abortion. The proposed rule will be published in the Federal Register on Monday.
Nearly a year ago I reported that finding out whether exchange plans covered elective abortion was nearly impossible. And in some states, you can't buy a plan without such coverage. The administration indicated that it was looking into the problem, but nothing changed. This past September, a Government Accountability Office report revealed that eighteen insurers across ten states were not in compliance with the Affordable Care Act when it came to abortion coverage. It found that some insurers were failing to segregate premiums for elective-abortion coverage from all other premiums, and others were still not disclosing whether their exchange plans included such coverage, even though the law requires such informtion be available "at the time of enrollment." The GAO also found that some insurers were not filing their plans with state regulators, who are responsible for monitoring compliance with the law. Again, Obama administration officials said they were examining the issue. This new rule appears to be the administration's first step to address these longstanding problems.Read more
Be sure to read Linda Greenhouse's powerful column in the New York Times on the Supreme Court's decision to hear arguments in King v. Burwell -- which Jonathan Chait called "a mind-blowing development" -- and how, in terms of politicizing in the court, it's even "worse" than Bush v. Gore. In this case, Greenhouse writes,
There was no urgency. There was no crisis of governance, not even a potential one. There is, rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law....
This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect....
There is simply no way to describe what the court did last Friday as a neutral act.
Given the naked cynicism of the challenge to the ACA, and the lack of a clear need for the SCOTUS to intervene, why would the Court decide to hear this case? [Update: the rest of this paragraph has been revised to correct a silly misreading of Greenhouse in the original.] Greenhouse presumes the willingness of four members of the court known to be hostile to Obamacare to prioritize ideology over jurisprudence (a state of affairs Brian Beutler calls "the only reason left to worry," but it does seem like a good reason). She doubts that Chief Justice John Roberts would have provided a fifth vote - not necessary in any case - given the threat to his legacy the case could represent. But, she wonders, could it be that the four most conservative members of the court voted to hear the case "precisely to put the heat on John Roberts"?
Along with being a clear explainer on what the furor over this decision is all about, and a strong expression of exasperation on the part of a careful observer of the Court, Greenhouse's column is a reminder that John Yoo is still out there offering his opinions on legal matters (from an elite academic perch) -- and doing so in astonishingly moralistic terms, considering the source.
Professor Yoo, formerly of the Justice Department’s Office of Legal Counsel and now at the University of California at Berkeley, wrote [for National Review] that the new case gave the chief justice “the chance to atone for his error in upholding Obamacare” and that “it will be the mission of his chief justiceship to repair the damage.” John Yoo — yes, the Bush administration lawyer whose “torture memos” attempted to justify that administration’s “enhanced interrogation” policies — is a smart man, a former law clerk to Justice Thomas who remains well connected at the court. His choice of the words "atone” and “mission,” with their religious resonance addressed to the devoutly Catholic chief justice, is no accident.
Greenhouse doesn't quote the line where Yoo breaks the irony barrier: "the insincere misreading of the statute will grate especially hard on Roberts’s professionalism." Insincere misreadings of statutes have a way of doing that.
So, how much is Roberts's conscience likely to determine the outcome here? We'll have to hope for the best. After all, to quote Yoo once more: "We shouldn’t discount the possibility that the Justices just want to do the right thing!"
Several health-insurance companies across ten states are not in compliance with the Affordable Care Act when it comes to handling elective abortion coverage, according to a new report from the Government Accountability Office. The investigation, which was requested last winter by several members of the U.S. House of Representatives—including Speaker John Boehner—did not set out to measure whether insurance companies were following the law. Rather, it was intended to discover which health plans on the exchanges cover elective abortions, how they charge for that coverage, and how enrollees can determine whether the plans they’re considering cover such abortions. But over the course of its research, the GAO discovered that many of the insurance companies they surveyed—eighteen total—fell significantly short of the law's requirements. And some of them didn’t even realize it.
The Department of Health and Human Services has promised that it will soon issue further guidance to bring insurance companies into full compliance with the law.
The ACA allows insurers to sell policies that cover elective abortion on the state health-care exchanges—unless state law says otherwise—but it governs key aspects of those policies. The law and its implementing regulations prohibit the use of federal subsidies to pay for elective abortion coverage. To make sure that doesn’t happen, insurers selling such plans on the health-care exchanges must do three things: They have to estimate the monthly cost of elective abortion coverage on an average actuarial basis, which cannot be less than $1 (that prevents insurers from giving it away). Then they must collect from enrollees a separate payment equal to that cost. Finally, after they receive that payment, issuers have to segregate it from any other premiums collected from the enrollee. But before the insurer even gets to the billing stage, regulations require that customers be able to tell whether the policy they’re considering covers elective abortions. That was the plan, anyway. But it doesn't look like things are proceeding according to plan.Read more
The owners of Hobby Lobby want you to know they take their moral commitments seriously. The Green family's stores don't sell shot glasses. They're closed on Sundays. They don't even allow their trucks to "back-haul" beer shipments. As supporter Ben Domenech pointed out, all those practices "could make them money, but they just bear the costs." The Greens are so serious about their Christian beliefs that they've made a federal case out of their objection to paying insurance premiums that would allow their employees to choose to receive contraceptive products that the Greens deem no different from abortion. "I doubt this is the type of company to spend one dime on this contraception mandate," Domenech wrote. "They will just drop coverage, and pay employees the difference...rather than compromise their beliefs." Except now it looks like they've been doing just that--for quite some time.
At Mother Jones, Molly Redden reports that Hobby Lobby's employee retirement plan "held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions." And Hobby Lobby makes significant matching contributions to the 401(k)--nearly $4 million in 2012, according to the company's 2013 disclosure to the Department of Labor. In other words, Hobby Lobby invests millions in companies that manufacture the very products they want to be exempt from covering in their employee health plans--products they believe cause abortions. As Redden notes, other holdings in Hobby Lobby's mutual funds include companies that make drugs used to induce abortion, drugs administered during abortion procedures, and insurers that cover surgical abortions.
This raises an obvious question: If the Greens are so committed to the belief that they cannot in good conscience pay health-insurance premiums that might result in employees using products that could prevent the implantation of fertilized eggs, then why are they OK with spending millions annually on companies that manufacture drugs that will certainly cause abortions? In other words, as Nick Baumann put it, "either remote cooperation with abortifacients is a red line for you or it's not."Read more
Everyone knows the power granted by Justice Kennedy’s middle position on the Supreme Court. Indeed Paul Clement, the advocate for the plaintiffs in Sebelius v. Hobby Lobby, seemed to direct most of his arguments toward the concerns he imagines Kennedy to have about the case.
But even in Clement's most hopeful fantasies, he could not have imagined the gift that Kennedy would present him during questioning of the Solicitor General. Kennedy introduced the idea that, by the logic of the government’s case -- in some future scenario, at the calamitous bottom of a slippery slope -- for-profit corporations could be forced to “pay for abortions.”Read more
Matthew J. Franck is not happy with Judge Richard J. Posner. He doesn't like how Posner treated attorney Matthew Kairis during oral arguments at the Seventh Circuit Court last week (which I wrote up here). Kairis represents Notre Dame in its lawsuit challenging the HHS contraception mandate. Franck writes:
In a colloquy with Matthew Kairis...Posner badgered, interrupted, and demanded yes-or-no answers to questions so badly framed that they had to be either evidence of Posner’s failure to grasp the issues in the case, or of his intention to trap counsel in a corner of some kind.
Of course, Posner has never been known for going easy on lawyers. One law blogger said this was Posner "at his cantankerous best." Others weren't so sure. But whatever you make of Posner's approach, Kairis didn't help matters by talking over the judges and failing to answer their questions directly--or without speechifying. "Any law student who has done a moot court argument in school learns that you don’t interrupt the court, talk while the court is talking, or irritate the judge by trying to sidestep a direct question," wrote lawyer and blogger Bill Wilson.
Franck's displeasure isn't limited to Posner's attitude. No, he thinks Posner has missed entirely the point of Notre Dame's complaint. Actually, it's worse than that. Franck believes he's identified "Posner's inability to perceive what's at stake in this case" (my emphasis). But judging from Franck's post, it's not clear that he has a terribly firm grasp of the issues in play.Read more
Last month, the University of Notre Dame announced that it would comply with Obamacare's contraception mandate, after the school's legal challenges failed. "Pursuant to the Affordable Care Act," a university statement explained, "our third-party administrator is required to notify plan participants of coverage provided under its contraceptives payment program." In other words, university employees would receive contraceptive coverage at no cost to them. But the statement warned that “the program may be terminated once the university's lawsuit on religious-liberty grounds...has worked its way through the courts."
That dismayed some of the university's more conservative critics. Notre Dame law professor Gerard V. Bradley, for example, argued that the university's compliance with the mandate amounted to "facilitating abortions." And Notre Dame historian Wilson Miscamble, CSC, worried that the university's heart wasn't really in the fight. But after listening to Notre Dame counsel's oral arguments last week at the 7th U.S. Court of Appeals, they may have something else to worry about.Read more
The Republicans have finally gotten serious about health care reform. The bad news for them is that they are four years too late.
Earlier today, Senators Hatch (R-UT); Burr (R-NC); and Coburn (R-OK) released the details of their Patient Choice, Affordability, Responsibility and Empowerment Act (a.k.a. “Patient CARE Act). Hatch, in particular, is no stranger to health care issues, having co-sponsored the State Childrens Health Insurance Program back in 1997.
The bill largely follows the outlines of a health care reform proposal developed by a group of conservative policy wonks dubbed the “reformocons.” In an article published in Commonweal’s print edition in December, I questioned whether the wonks would find Republican politicians willing to carry their water. I am happy to have been proved wrong, as the return of Republicans to the actual work of legislating is a welcome development.Read more
Late yesterday, Supreme Court Justice Sonia Sotomayor granted the request of a community of nuns in Colorado to delay enforcement of the Obama administration's contraception mandate. Her order applies to the Little Sisters of the Poor in Colorado and other nonprofit groups whose health plans are administered by Christian Brothers Employee Benefit Trust. Sotomayor intervened after a U.S. Court of Appeals in Denver denied the nuns' request earlier on New Year's Eve.
Most news reports lead with the claim that Sotomayor's order blocks the Obama administration from forcing these groups to "provide contraception coverage" to their employees. But of course that's where the dispute lies. The Little Sisters of the Poor claim that the mandate forces them to act against their religious convictions, which, they say, do not allow them to "facilitate" the procurement of artificial contraception. (I find that claim tendentious.) The Obama administration says that religiously affiliated employers don't want to provide such coverage they can opt out, in which case a third party will offer it to employees. I imagine that will be more or less what administration lawyers will say in their reply to Sotomayor's order. She's given them until Friday to respond.
We’ve just posted the latest issue to the homepage, and here are some of the highlights:
- J. Peter Nixon writes there’s still reason to be optimistic about Obamacare – but that “to understand why, it helps to know a few details about the law.”
- David Cloutier writes on how luxury compromises Christian witness: “If many Catholics are more willing to admire someone like Dorothy Day than to follow her example, that is also partly because many of us have adapted to our country’s consumer culture—a culture in which affluence is morally innocent or even commendable.”
- John Garvey on the importance of vows – and “the difference vows can make in a culture where many expect them to be broken” [subscription].
See the full table of contents for the December 20 issue right here.
Also featured today, E. J. Dionne Jr. on the return of the working-class hero: “For the first time in a long time, working people are making their way back into the news.” Read the whole column here.
Just posted to the homepage: my piece on elective abortion coverage on the health exchanges. I'll have more to say about this later, but for now, here's a preview:
On Sunday, the Obama administration’s self-imposed deadline for fixing Healthcare.gov passed, with seemingly decent results. For the past month, the administration had been consumed with that task. But in the meantime another serious problem seems to have escaped its attention: Federal and state health-care exchanges make it nearly impossible to tell whether their plans cover elective abortion. And in some states customers don’t even have the option to purchase abortion-free coverage.
Last month, Secretary of Health and Human Services Kathleen Sebelius was brought before the House Energy and Commerce Committee to be questioned about the failures of Healthcare.gov. “If someone…has strongly held pro-life views, can you commit to us to make sure that the federal exchanges that offer that [abortion coverage] is clearly identified and so people can understand if they're going to buy a policy that has abortion coverage or not?” asked Rep. John Shimkus (R-Ill.). “I don’t know,” Sebelius answered. “I know exactly the issue you’re talking about. I will check and make sure that is clearly identifiable.”
That was November 1. It’s still nearly impossible to determine whether plans on the exchanges cover elective abortion. For example, on the New York State exchange—supposedly one of the best—the signup process is painless. You create a username and password, enter your legal name, address, Social Security number, and within moments you’re shopping for coverage. You can compare several plans at all levels of coverage (bronze, silver, gold, platinum). Monthly premiums are displayed first, followed by deductibles and out-of-pocket maximums. You can explore a plan’s outpatient-services coverage, its prescription-drug coverage, mental-health services, lab tests, etc. You can even see its pediatric-vision coverage. But you can’t find out whether a plan covers elective abortion.
Read the rest right here.
When I first read the headline "Health Law Rollout's Stumbles Draw Parallels to Bush's Hurricane Response" on my phone last Thursday, I ignored it because it seemed just another in the long line of attempts to identify President Obama's very own "Katrina" (2010 Gulf oil spill, 2009 H1N1 flu, 2009 GM bankruptcy -- expanded list here). Little did I know how eager the usual suspects (really, Chris Wallace?) were ready to run with it. Jon Stewart last night reintroduced some perspective.
Following a closed-door discussion of the contraception mandate, the U.S. Conference of Catholic Bishops issued an unsigned (but unanimousy passed) "special message" that, for the most part, sounded a familiar tune. So why does religion-journalism watchdog Terry Mattingly think the media dropped the ball by not focusing on this "crucial" statement? Does this look new to you?
Beginning in March 2012, in United for Religious Freedom, we identified three basic problems with the HHS mandate: it establishes a false architecture of religious liberty that excludes our ministries and so reduces freedom of religion to freedom of worship; it compels our ministries to participate in providing employees with abortifacient drugs and devices, sterilization, and contraception, which violates our deeply-held beliefs; and it compels our faithful people in business to act against our teachings, failing to provide them any exemption at all.
This is more or less what the USCCB has been saying since the original, onerous form of the mandate dropped. The bishops restate their plan to pursue relief legislatively (not going anywhere) and judicially (maybe going somewhere). We've heard this before.Read more
In spite of having two senators (McConnell and Paul) opposed to the Affordable Care Act, the state of Kentucky seems to be making a good start at signing up people for Medicaid and Exchange-based health insurance policies.
Kentucky "is far ahead of most of the nation in signing up people: As of Nov. 1, more than 27,854 Kentuckians had enrolled in Medicaid under the law’s expansion of that program, and 4,631 had signed up for private plans through the state-run exchange, known as Kynect. The state says it is enrolling 1,000 people a day."
How has the state done it? "While most states lack enough navigators to reach all who need help, Kentucky is spending $11 million in federal money to promote its exchange, and it shows: Ads for Kynect blanket television and radio, city buses and highway billboards in Louisville."
And (lucky them) they have a Democratic governor actively promoting the state effort to sign people up. Here's the full story.
Whether he did or didn't, there are several million angry people out there who are getting "pay more or be cancelled" notices from their insurance companies for 2014.
So what's going on? On the RIght, of course, Obama was caught in a bald-faced lie, having given his personal guarantee that all Americans could keep their current insurance if they wished. On the Left, technically Obama wasn't lying, because there is nothing in the PPACA (Obamacare) statute that says that insurance companies have to cancel policies or that anyone at all has to be forced onto the exchanges. But Obama can't control the insurance companies and their own business decisions. So it's their fault.
Everyone is spinning as fast as they can. What's really happening?Read more
Just posted to the homepage, two new stories. In this web-exclusive response to Germain Grisez, Dennis O’Brien writes on Francis and the character of Christian truth:
It is often commented that unlike many other great sages and spiritual leaders of humankind, Jesus never wrote a word; his impact was in live speech. The primacy of live speech, face-to-face communication, is a deep lesson about the nature of Christian truth and teaching. I believe that Pope Francis in the interview places the particular person speaking prior to instruction. The interview with Civilità Cattolica starts with “Who is Jorge Maria Bergoglio?” The answer: “I am a sinner—a sinner who has been forgiven by Christ.” For Francis, the voice that claims to teach the truths of Christianity is the voice of a forgiven sinner. Grisez might counter that this is all very well for Bergoglio, but not for one charged with the office of pope. The pope should speak in a “universal” voice, not as Ratzinger or Bergoglio. I think a universal voice fails to carry the full Christian message, and that is the radical shift that Pope Francis effects. Face-to-face is the site of Christian teaching.
Also posted: E. J. Dionne Jr. on where Obamacare is working, and where it isn’t.
States that created their own healthcare exchanges -- and especially those that did this while also expanding Medicaid coverage -- are providing health insurance to tens of thousands of happy customers, in so many cases for the first time.
Those seeking a model for how the law is supposed to operate should look to Kentucky. Gov. Steve Beshear, a Democrat in a red state, has embraced with evangelical fervor the cause of covering 640,000 uninsured Kentuckians. …
Beshear urges us to keep our eyes on the interests of those the law is intended to serve, our uninsured fellow citizens. "These 640,000 people are not some set of aliens,” he says. “They’re our friends and neighbors ... some of them are members of our families.” As for the troubled national website, Beshear offered this: “If I could give unsolicited advice to the critics, and maybe to the media, it’s: Take a deep breath.”
Wise counsel. But there can be no denying the system failure that is a profound embarrassment to the Obama administration and threatens to undermine all the good the law could do, since its enemies will use any excuse to discredit it.
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