The constitutional case against health reform is exceptionally weak — even ultraconservatives like Chief Justice Roberts and Justice Scalia reject a narrow vision of the Constitution which would hold this law unconstitutional. So with the cards already laid out against them, the right has decided it needs to stack the deck by eliminating justices who are likely to uphold the law. Today’s Wall Street Journal editorial falsely claiming that Supreme Court nominee Elena Kagan must recuse herself from health care litigation just their first cut at this deck stacking:

Ms. Kagan was unlikely to have been consulted on the merits of health-care policy, and even if she did express an opinion on policy this would not be grounds for recusal. The legal precedents on that are clear.

Recusal arises as a matter of judicial ethics if as a government official she expressed an opinion on the merits of the health-care litigation. This is what she would have to render a judgment on were she to be confirmed for the High Court. It is also the question on which she is likely to have participated given her role at the Justice Department.

Simply put, the WSJ is not telling the truth about when a judge must recuse themselves. Later in the editorial, the WSJ quotes the federal law governing recusals by judges who are former government officials — judges must recuse themselves from cases where they “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy” — but this language does not say what the WSJ wants it to say.

To have “participated” in a “particular case in controversy,” a judge must have been a lawyer, adviser or witness in the exact same lawsuit that is now before their court. Because none of the health care cases currently pending in federal court have been appealed, Kagan would not have done any work on those specific cases. Normally, the Solicitor General first becomes involved in federal litigation at the appellate level, if at all.

Contrary to the WSJ‘s claim, a judge is not required to recuse themselves simply because they have previously expressed an opinion on a legal issue that is now before them in a new case, even if they expressed that opinion while giving advice to a client. Were judges forbidden from deciding issues that they have already expressed opinions on, Justices Scalia and Thomas would be required to recuse themselves from all abortion cases, since they have both previously expressed the opinion that Roe v. Wade should be overruled.

There is also ample precedent indicating that Kagan does not need to recuse herself from health care litigation. The last Solicitor General to be elevated to the Supreme Court was Justice Thurgood Marshall. Of the 53 cases Justice Marshall recused himself from due to his work as SG, 48 were cases that he had previously signed a brief in, and the other five were all cases where he either authorized an appeal or otherwise was involved in that exact same case.  Justice Marshall did not recuse himself from a single case that he had not previously done work on, and he certainly didn’t recuse himself from all school desegregation cases, even though he had done significant previous litigation in that area.

Likewise, Justice Hugo Black actually wrote the Fair Labor Standards Act while he was a senator, but Justice Black repeatedly heard cases interpreting this law while he served as a justice.

So the WSJ is simply making things up when it claims that Kagan is required to recuse herself from health care litigation.  Just like the frivilous lawsuits claiming that health reform is unconstitutional, the WSJ claims that it can make up the law as it goes.

Late last month, House Minority Leader John Boehner (R-OH) announced that the GOP would try to rally social conservatives ahead of the midterm elections by introducing legislation that would permanently “bar Congress from using taxpayer money to support abortions or abortion coverage” by codifying the so-called Hyde amendment. Today, Boehner hinted that he will re-open the abortion debate within the context of health care reform.

Boehner tweeted a press release from the National Right to Life Committee which claims that “The Obama Administration will give Pennsylvania $160 million to set up a new “high-risk” insurance program…and has quietly approved a plan submitted by an appointee of Governor Edward Rendell (D) under which the new program will cover any abortion that is legal in Pennsylvania”:

Examination of the detailed Pennsylvania plan (posted here:www.nrlc.org/AHC/PennsylvaniaHighRiskPoolPlan.pdf), reveals that the “much more” will include insurance coverage of any legal abortion.

The section on abortion (see page 14) asserts that “elective abortions are not covered.” However, that statement proves to be a red herring, because the operative language does not define “elective.” Rather, the proposal specifies that the coverage “includes only abortions and contraceptives that satisfy the requirements of” several specific statutes, the most pertinent of which is 18 Pa. C.S. § 3204, which says that an abortion is legal in Pennsylvania (consistent with Roe v. Wade) if a single physician believes that it is “necessary” based on “all factors (physical, emotional, psychological, familial and the woman’s age) relevant to the well-being of the woman.” Indeed, the cited statute provides only a single circumstance in which an abortion prior to 24 weeks is NOT permitted under the Pennsylvania statute: “No abortion which is sought solely because of the sex of the unborn child shall be deemed a necessary abortion.”

Indeed, the Nelson amendment in the health care law and President Obama’s subsequent executive order places restrictions on federal funding within the exchanges and the community health centers but says nothing of the moneys appropriated to the temporary high risk pools or other programs like reinsurance for early retirees or the small business tax credits.

The law gives the states the necessary flexibility to appropriate those dollars as they see fit, so long as it comports with state and federal law. Pro-choice advocates disagree with the notion that states should be able to deny fundamental reproductive right to women, but by protesting the state-based nature of these provisions, anti-abortion advocates are also changing their argument. Throughout the health care debate, they’ve maintained that abortion should be left to the states and have insisted that states be given the option to eliminate abortion from the exchanges, as some have done. Now that progressive states have chosen to cover full reproductive benefits, however, those same “state rights” voices are crying foul and claiming that the federal government should determine how abortion funds are or not spent.

Of course, whether or not the enrollees in high risk insurance pools will need abortion coverage is another matter altogether. The typical high risk pool beneficiary is older and sicker and most health experts I’ve spoken to don’t expect abortion to become a very popular benefit.

The White House unveiled its long awaited National HIV/AIDS Strategy this afternoon with the twin goals of cutting new infections in the U.S. by 25% over the next five years and ensuring that 85% of patients begin receiving care within three months of diagnosis. HHS Secretary Kathleen Sebelius described the strategy as, “not a white paper,” but a “detailed action plan” that calls on federal agencies, the states and community organizations to act in a coordinated manner to help reduce the number of people who become infected with HIV, increasing access to care and optimizing health outcomes for people living with HIV, and reducing HIV-related health disparities.

The LA Times’ Noam Levey gets into some of the details, noting that the biggest sticking point is the lack of new federal funding:

Obama’s strategy includes broad goals as well as dozens of directives for the Centers for Disease Control and Prevention, the Agency for Healthcare Research and Quality, and other federal agencies. Those steps include developing standards to evaluate care, investigating community programs to see whether they’re effective and simplifying grant applications. The Bureau of Prisons would expand HIV screening of inmates, and the Justice Department would fast-track investigations of discrimination involving those with HIV.

The report warns about the need for more attention on gay and bisexual men, who account for more than half of new infections annually, and on African Americans. [...]

But the president’s strategy contains no additional federal spending. That drew pointed criticism from Michael Weinstein, who heads the Los Angeles-based AIDS Healthcare Foundation, a leading provider of medical care to those with HIV/AIDS. “It’s really shocking,” Weinstein said. “We have thousands people on a waiting list for AIDS drugs. So, the whole premise is that we are going to test more and treat more. But we don’t have the capacity. Why should anyone be tested if they don’t have access to medications?”

That’s the sense I got from Julie Scofield, director of the National Alliance of State and Territorial AIDS Directors (NASTAD), which “represents the nation’s chief state health agency staff who have programmatic responsibility for administering HIV/AIDS” programs. She praised the document for identifying the communities at highest risk for HIV and acknowledging the “urgency of addressing the epidemic among gay and bisexual men of all races.” “We’ve seen past efforts that want to continue to suggest that everyone is at equal risk for HIV, and it’s not true,” she told me.

She also said the report broke new ground in calling for greater coordination across federal agencies, noting that “that is very much needed.” “We’ve got too many funding silos with too many different reporting requirements and evaluation measures that make these programs extremely difficult and complex to administer at the state and local level.” But Scofield acknowledged that the strategy — while itself admits the need for greater investment — will not do enough to help states struggling to meet the needs of AIDS patients. Last week, HHS announced that it would provide $25 million more to help states buy needed medicines, but advocates argue that this is not enough. Across the country, states have narrowed eligibility, limited enrollment or restricted the drugs for which they will pay to help deal with growing budget deficits. Here is just a sampling:

- SOUTH CAROLINA: “The current version of the state budget for the 2010-11 fiscal year, which starts July 1, eliminates all money for the Drug Assistance Program, which provides life-saving HIV/AIDS drugs to the state’s low-income, uninsured and underinsured residents. The budget also eliminates all money for the state’s HIV/AIDS prevention programs.”

- OHIO: “The Ohio Department of Health cut 320 people from HIV-medication assistance, instituted a waiting list and made other cuts yesterday to a program that serves about 5,000 people who have the virus.”

- FLORIDA: The state Department of Health will start a waiting list for the program on June 1, will reduce the number of covered drugs in the program on Aug. 1, and will study other cuts, said Tom Liberti, chief of the department’s HIV/AIDS bureau.”

“I’m really hoping that the administration and all of us in the community will use this to mobilize for additional resources.” “There is no question that we need more funding to accomplish this strategy, but I’m at this point thinking, I rather use it to mobilize and garner that support and turn to the Congress and ask for those resources than try to shoot down this strategy without even trying to garner the resources to make it successful,” Scofield said.

Federal agencies will now have 150 days to submit a report on operationalizing the strategy and the federal agencies will begin to work with state and community groups to meet the goals of the plan. But going forward, Scofield expects that the plan will “inform the President’s next budget request, and next budget request, and next budget request.”

As newly sworn-in CMS chief Don Berwick was unveiling the new meaningful use regulations for health information technology this morning, Republican Senators took to the Senate floor to condemn his recess appointment. Sens. John Barrasso (R-WY), John McCain (R-AZ), and John Thune (R-SD) engaged in a 30 minute colloquy to blast the President for appointing Berwick ahead of his confirmation hearings. McCain even wondered, “what was the hurry? … There’s going to be another recess in August. There’s going to be another recess after — in October after — unless we go out for elections. But yet in their zeal and haste, they had to do it just over the 4th of July recess!”

The GOP regurgitated what McCain called Berwick’s “greatest rhetorical hits,” argued that Berwick’s nomination exposed the administration’s stealth agenda to ration care and tried to link Berwick to the familiar “czars” narrative:

– MCCAIN: “And I must admit that both Republican and Democrat administrations have abused the recess process — recess appointment process. Yes, they have abused it. But I must say, this takes it to a new high, or low, depending on which way you view it. We have now seen in this administration the appointment of various czars, people given responsibilities over vast areas of government as “czars.” They’ve got more czars than the Romanovs.

– BARRASSO: I believe the President of the United States now has what he wants, his health care rationing czar….but that’s what we have now. We have a president — a president-appointed czar, essentially a czar to ration health care. It’s not what the American people want.

Watch a compilation:

Barrasso insisted that Berwick would “redistribute wealth” and implied that supporters of Berwick were against the American people:

BARRSSO: It was interesting yesterday on this floor, someone on the other side of the aisle stood up and said, if you’re against Dr. Berwick, then whose side are you on?… I’m on the side of the American people, the American people who are concerned about $500 billion of cuts to their Medicare. I’m on the side of the people who believe we should not redistribute wealth in this country.

Taking Barrasso’s argument to its logical conclusion would also lead one to believe that the nation’s hospitals and doctors are also anti-American. The American Hospital Association, the Federation of American Hospitals and a host of other provider groups praised Berwick, predicting that he “will bring a wealth of knowledge and practical experience to CMS from his perspective as a physician, teacher and passionate advocate for high-quality care.” Berwick’s “experiences from his lifelong quest to find better and safer ways to deliver care will greatly inform and enhance the implementation [of] healthcare reform,” the groups wrote in letter to the Senate Finance Committee.

The group’s praised Berwick’s conception of patient [notice, not government] – centered medicine, in which “the needs and wants of the patient should come first.” For more on this approach and how it differs from Barrasso’s description, click over to Maggie Mahar’s comprehensive post here.

The GOP is growing increasingly unhinged over the recess appointment. Last week, Rep. Michele Bachmann (R-MN) agreed with a radio host’s description Of Berwick as “chairman of the Obamacare death panel.”