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House GOP Launches Anti-Kagan Witchhunt, Ignores Thomas’ Ethics Scandals

Last week, 49 GOP members of Congress wrote House Judiciary Chairman Lamar Smith (R-TX) asking him to launch an utterly frivolous investigation into whether Justice Elena Kagan needs to recuse from the Affordable Care Act litigation. As ThinkProgress explained, the case for a Kagan recusal is so utterly lacking in merit that this call for an investigation can only be interpreted as a transparent attempt to distract from the very serious ethical scandals facing Justice Clarence Thomas.

Nevertheless, Smith took them up on their request for an investigation. In a letter to Attorney General Eric Holder, Smith seeks a pile of documents regarding Kagan’s non-existent involvement in the health care litigation:

1. All documents referring to any meetings or conversations (personal or electronic) about potential or actual health care legislation or litigation in which Solicitor General Kagan was involved, mentioned or copied.

2. All documents referencing potential or actual health care legislation or litigation in which Solicitor General Kagan was involved, mentioned or copied.

3. All documents referencing excluding Ms. Kagan from any matters involving health care legislation or litigation while she was Solicitor General.

4. All documents referencing possible recusal by Solicitor General Kagan from any matters relating to health care legislation or litigation if she were confirmed as a Supreme Court Justice.

Most of the documents Smith seeks are already public, and they reveal absolutely no evidence whatsoever suggesting Kagan should recuse. Earlier this year, a conservative news outlet filed a FOIA request seeking documents relating to Kagan’s involvement in the health care litigation. All that they were able to uncover is that Kagan directed other lawyers within her office to work on the Affordable Care Act matter, rather than actually working on the case herself.

Under federal law, 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.” To participate as counsel, a lawyer must actually provide legal advice or otherwise act as an attorney in a case — telling another lawyer to work on a case does not constitute participation as counsel. So the right’s so-called evidence against Kagan actually proves the opposite of what they claim it proves — it shows that she scrupulously directed Affordable Care Act work away from herself and onto other lawyers in a way that eliminates any recusal issues for her as a justice.

Nevertheless, there is something ingenious about Smith’s document request. His request for documents referencing pending litigation will undoubtedly include some documents that are protected by attorney-client privilege (although the federal courts recognize a narrow exception to governmental attorney-client privilege for criminal cases, that exception does not apply here). When DOJ honors its ethical obligation not to turn over these documents, Smith will almost certainly use their adherence to legal ethics as an excuse to rant about an imagined cover-up.

Ultimately, however, the most likely purpose of Smith’s investigation remains the same. Smith would uncover nothing jeopardizing Kagan’s ability to hear the health care cases even if he were given unlimited access to DOJ’s archives. What he may accomplish, however, is shifting attention from the many, many ethics scandal involving Thomas — including a scandal strikingly similar to the gifting scandal that forced Justice Abe Fortas to resign from the Court in 1969.

Yglesias

What Is The Case Against Calorie Menu Labeling

Another day another article about how requiring restaurants to list the calorie counts of their meals doesn’t impact consumer behavior. Personally, I don’t find this all that surprising. Behavior tends not to change that much in the short term. I think the real issue here is that you’re changing the business environment. A menu labeling rule creates a potential business opportunity for restauranteurs to try to make money with demonstrably healthier offerings, and only time will tell if that opportunity is real and anyone seizes it. But either way, I don’t understand what the objection to this kind of policy is supposed to be:

“There is a great concern among many of the people who study calorie labeling that the policy has moved way beyond the science and that it would be beneficial to slow down,” said George Loewenstein, a behavioral economist at Carnegie Mellon University who studies calorie labeling. In a recent editorial in the American Journal of Clinical Nutrition, he asked: “Given the lack of evidence that calorie posting reduces calorie intake, why is the enthusiasm for the policy so pervasive?”

Enthusiasm for the policy is so pervasive because the intervention is so utterly mild. Compare that to a proposal for a $100 tax on cheeseburgers. A cheeseburger tax would be extremely burdensome on people who really like cheeseburgers. It’s possible that you could persuade me that the public health benefits would be so dramatic that this kind of seemingly arbitrary tax is a good idea, but that’d be a high evidentiary hill to climb. But the long-term financial cost of making people print calorie counts on menus is zero. It’s possible that consumers turn out not to care, in which case there’s no cost at all. Alternatively, if it does turn out that some firms’ interests are adversely impacted by the rule that would have to be because it turns out that consumers actually do care a lot about calorie counts. At worst, there’s no impact. At best, you’re helping people. Either way, it seems worth doing.

Meanwhile, I do once again want to note that it’s difficult to assess the short-term impact here. I lost about 60-70 pounds last year based on rigorously counting calories. But that didn’t mean that I never went to Five Guys for a burger and fries, and it also didn’t mean that I made “healthier choices” when I did go to Five Guys. Even without menu labeling, I think people know what they’re signing up for when they go to a burger joint, and that’s fine. Where looking up calories did make a lot of difference was in choosing between different healthy-sounding salad options at places that do have healthy options. Everyone understands that a bacon cheeseburger has a lot of calories, but the gap between the Cobb Salad and the Steakhouse Salad at Chopt isn’t obvious unless you actually look it up.

Saving Medicaid: Why The LGBT Community Should Care

In the banquet of spending cuts laid out as part of the debt negotiations, everyone seems to want a piece of Medicaid. Congress and the Administration are hungry for $4 trillion in savings, and while a powerful voting bloc of seniors helps protect Medicare, Medicaid serves people whose voices at the ballot box aren’t typically feared by those in Washington: the majority of Medicaid beneficiaries are women, children, and people with disabilities, many of them people of color, and all of them familiar with how poverty can cut off access to lifesaving medical care.  

Medicaid works

Medicaid provides coverage for more than 50 million Americans. In a recent poll, more than 50 percent of respondents shared that they have a personal connection to Medicaid, either because they themselves have received assistance from the program at some point in their lives or because a friend or family member had. Other recent research demonstrates that Medicaid makes a huge difference in people’s lives. Compared to people without insurance, Medicaid beneficiaries are happier, healthier, and have more access to the routine health care that prevents public health tragedies like high infant mortality, soaring costs for uncompensated emergency room visits, and unnecessary deaths from controllable conditions like diabetes and heart disease.

The Affordable Care Act recognizes Medicaid’s importance as a central part of the safety net and slates the program for a big expansion. The health reform law includes a requirement that states maintain current eligibility levels for their Medicaid programs, and beginning in 2014, an estimated 16 million currently uninsured people will receive coverage under Medicaid.

The future of Medicaid includes the LGBT community

Many lesbian, gay, bisexual, and transgender people and their families will be among these new beneficiaries. Currently, most states do not consider childless adults, regardless of their income, eligible for Medicaid benefits. As a result, Medicaid probably covers few LGBT people at the present time, though a lack of data collection on sexual orientation and gender identity on most nationwide health and insurance surveys makes the number of current LGBT Medicaid beneficiaries difficult to estimate. Because many LGBT people have incomes that fall within the new nationwide eligibility standards (under 133% of the federal poverty line), however, there will likely be a significant proportion of LGBT adults added to the Medicaid rolls in 2014.

Despite popular stereotypes, poverty and un- and underemployment as a result of discrimination are persistent problems for LGBT people and their families. Recent studies indicate that poverty rates among LGBT Americans are higher than those among the heterosexual and non-transgender population. Lesbian and bisexual women experience poverty at a rate of 24%, compared to 19% among heterosexuals, while a recent survey indicates that transgender individuals make $10,000 a year or less at twice the national average, simply because of who they are. Employment discrimination on the basis of sexual orientation and gender identity results in higher rates of un- and under-employment rates for LGBT people as compared their non-LGBT peers. Even among those who are employed, a significant wage gap between lesbian and gay employees and their heterosexual coworkers persists, and uninsurance remains high in the LGBT community in no small part because few employers extend insurance coverage to their employees’ same-sex partners.

Another recent development has made Medicaid even more important for the LGBT community, which continues to bear a disproportionate burden of the HIV/AIDS epidemic: in June 2011, the Centers for Medicare and Medicaid Services released guidance to states on using Section 1115 Medicaid waivers to extend coverage to people living with HIV or AIDS before they become sick enough to qualify as disabled. This guidance provides a lifesaving bridge to 2014 for adults with HIV or AIDS who do not meet their state’s current Medicaid eligibility requirements.

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NEWS FLASH

As Governor, Pawlenty Approved Funding Increase for Planned Parenthood | Although former Gov. Tim Pawlenty just won approval from pro-life advocates across the nation for signing a pledge to oppose abortion, he approved a “dizzying increase” in funding for both Planned Parenthood and family-planning clinics while serving as Minnesota’s chief executive. When he took office, the state’s Family Planning Special Projects program was facing severely depleted funds with an annual budget of only $3.8 million. By the time Pawlenty finished his second term in 2010, the grant program was dolling out close to $5 million for the year to fund public outreach, health education initiatives and family planning at clinics statewide. –Sarah Bufkin

Arizona Anti-Abortion Laws Will Effectively Prohibit Abortions In Three Cities

Kansas is losing notoriety. Once the only state trying to shut down all of its abortion clinics, Kansas may soon be overtaken by Arizona if its Republican lawmakers have their way. Earlier this year, the Arizona GOP passed two laws that aim to expand — and effectively ban — what constitutes a medical abortion. Up until now, Arizona law required surgical abortions to be performed by a doctor, but allowed certified nurses to administer RU-486, a drug that induces abortion within a few days. The new laws, however, not only require clinics that perform abortions via RU-486 to adhere to the same requirements as those that perform surgical abortions but also prohibit nurse practitioners from administering the drug. In doing so, Planned Parenthood — which filed a lawsuit to challenge the laws’ constitutionality — points out that Arizona is effectively banning abortions in three cities:

The new laws extend all the requirements for a surgical abortion to a medical abortion. While that includes the mandates for equipment and personnel that must be present, the biggest change is that nurse practitioners will no longer be able to perform the procedure.

Planned Parenthood, in its lawsuit, says that would mean no more abortions performed in Flagstaff, Prescott and Yuma which are staffed only by nurse practitioners. They also said it will mean unnecessary delays in the procedure for patients in the Tucson and Phoenix areas, as women who otherwise could get a medical abortion from a nurse practitioner now will have to wait until a doctor is available.

Bryan Howard, president of the organization, said these bills and others in prior years are all designed to make it impossible for women to exercise their constitutional right to decide whether to carry a baby to full term.

Planned Parenthood also noted that “about half of the abortions in Arizona are performed through medication.” Nurse practitioners and physician assistants “have been providing this care in Arizona for over a decade with exemplary quality and safety ratings,” said Planned Parenthood Arizona CEO Bryan Howard. “There is not medical evidence that they should be prohibited from providing the care. And we know that given the shortage of physicians willing to provide this care, it will have a significant impact and place a burden on patients.”

Arizona’s recent legislative history is riddled with extreme attacks on this constitutional right, including the first law to send doctors to jail for performing abortions based on race or gender. However, state attorneys have agreed to hold off enforcing medication abortion laws to hear Planned Parenthood’s argument. That hearing is set for Aug. 22.

Groundbreaking Study Shows Benefit Of Medicaid

People who receive Medicaid coverage report better overall health and less financial problems as a result of unpaid medical bills than individuals who don’t have insurance, a new bipartisan study has concluded. The report also undermines the GOP’s claim that people would be better off uninsured than on Medicaid, according to the researchers:

“What we found in a nutshell is that having Medicaid makes a big difference in people’s lives,” said Amy Finkelstein, another MIT economist and one of the study’s principal investigators.

Overall, researchers found that compared to people without insurance, those with Medicaid had better access to and used more health care; they were less likely to experience unpaid medical bills; they were more likely to report being in good health; and they were less likely to report feeling depressed.

In fact, says Finkelstein, among those with Medicaid, “We report almost a one-third increase in the probability that you report yourself as being happy.”

The report, which the National Bureau of Economic Research is publishing, found that the chance that a patient had a primary care doctor or facility was 70 percent higher among Medicaid enrollees. They received preventative care more frequently than the uninsured, with Medicaid-insured women 60 percent more likely to receive mammograms. Men and women were 20 percent more likely to get their cholestorol checked. And those with Medicaid were 25 percent more likely to say they had good health, and 40 percent less likely to say their health had worsened.

Beyond just taking care of their health, Medicaid coverage also helped to give patients financial security when it came to health care costs: Medicaid enrollees were 40 percent less likely to have to borrow money to pay medical bills, and were 25 percent less likely to have unpaid bills referred to collection agencies.

While the study may have only focused on Oregon’s program, these preliminary results already debunk some conservative claims against the program and reinforces how important Medicaid is for those who most need it.

NEWS FLASH

Brownback Appoints Anti-Abortion Advocate To Oversee Abortion Providers | Via Kate Sheppard: On Thursday, Kansas Gov. Sam Brownback (R) — who recently signed stringent new licensing regulations that could effectively chase abortion clinics out of the state — “riled reproductive rights supporters by appointing the lawyer who has represented one of the country’s most extreme anti-abortion groups to a state health board that oversees abortion providers.”

STUDY: Support For Government Role In Health Reform ‘More Consistent’ Than Previously Thought

A new analysis of poll data about the Affordable Care Act from 2009 to 2010 finds that public support for health reform may be higher and more consistent than previously thought. The study, published today in the newest issue of Health Affairs, shows that while support often depended on the wording of the question, on average, 57 percent of the public favored the public option, while overall support for the individual mandate averaged at 53 percent.

The study also found that despite the GOP’s best efforts to portray reform as a government takeover, the public showed consistent support for government programs. “When polling questions included phrases that described the public option as insurance, similar to Medicare, or available as an option or choice for consumers, support was higher—often considerably higher.” Even the “idea that the federal government should directly sponsor insurance—a major expansion of the government’s role—received strong support,” the researchers concluded:

In a phone interview with ThinkProgress Health, David Grande — one of the authors of the study and an assistant professor of medicine at the University of Pennsylvania in Philadelphia — pointed to the GOP’s (false) claim that the Paul Ryan budget protects traditional Medicare for current retirees as an indication of the fact that Republicans have not only poll tested their proposal but also learned from successes and failures of the health reform debate.

NEWS FLASH

Feds To Take Over Premium Rate Review In 10 States | The Hill’s Julian Pecquet reports that federal regulators will review health insurance rate increases in the 10 states that “failed to meet effective rate review mechanisms” under authority granted by the healthcare reform law.” The “law doesn’t give federal regulators the power to reject rate increases deemed unreasonable. However, health plans will be required to publicly justify and post on their websites any ‘unreasonable’ rate increase.”

NEWS FLASH

Calorie Labels Don’t Matter | “Evidence is mounting that calorie labels — promoted by some nutritionists and the restaurant industry to help stem the obesity crisis — do not steer most people to lower-calorie foods,” the Washington Post notes. “Eating habits rarely change, according to several studies. Perversely, some diners see the labels yet consume more calories than usual. People who use the labels often don’t need to. (Meaning: They are thin.)”

Utah Exchange Head: Huntsman’s Health Reform ‘Accomplished A Lot That Is Required By The Health Law’

The GOP can complain about “burdensome” new Affordable Care Act regulations and standards, but it’s going to be hard to ignore the fact that some of these requirements are actually quite similar to a law signed by former governor and current 2012 presidential contender Jon Huntsman. Consider this admission from the head of Utah’s exchange, which was enacted as a result of Huntsman’s 2007 health reforms:

We’ve already accomplished a lot that is required by the health law. If the law goes into effect and all the court cases have been heard, and we’re required to put those actions in place, we will certainly do that. We have moved through each phase of our process knowing that we would most likely have to do that. And a lot of what we want for Utah isn’t necessarily unlike what the federal requirements are, so we won’t likely have to unplug a lot of this.”

Many of the ACA rules surrounding exchange structure and minimum benefits requirements are still being drafted, but if the administration’s early statements are any indication, they will likely allow states like Utah — one of only two to already operate an exchange — to continue running the program with minimal changes. In other words, the administration is likely to err on the side of less federal regulation, heeding Jon Kingsdale’s advise. Kingsdale, who ran the Massachusetts exchanges, made the following recommendation at a recent Institute of Medicine panel: “My experience suggests revisiting and learning from cases and some flexibility and even phasing in would all be very helpful as you go down the path of defining a minimum benefit that will be extremely controversial,” he said. And if that’s the case, Utah will find itself already in compliance with many of the ACA’s new rues and the GOP argument that health reform represents some kind of big government overreach will look silly in the face of red state Utah’s similar model.

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Jindal Signs Anti-Choice Bill, Likens Women Who Receive Abortions To Criminals

Yesterday, Louisiana Gov. Bobby Jindal (R) appeared at the First Baptist Church of West Monroe to sign HB 636, a measure that “requires women to be informed of their specific legal rights and options before they undergo an abortion procedure.” Abortion providers will now have to post signs around their facilities stating that “it is illegal to coerce a woman into getting an abortion, that the child’s father must provide child support, that certain agencies can assist them during and after the pregnancy and that adoptive parents can pay some of the medical costs.” The law also creates a Department of Health and Hospitals website and a mobile platform to deliver information “about public and private pregnancy resources” for avoiding abortions.

Jindal said he couldn’t understand why anyone would oppose the bill, comparing the new notices to Miranda warnings for women who receive abortions — a constitutionally protected procedure — to criminals:

“When officers arrest criminals today, they are read their rights,” he said. “Now if we’re giving criminals their basic rights and they have to be informed of those rights, it seems to me only common sense we would have to do the same thing for women before they make the choice about whether to get an abortion.”

The analogy, however, may be somewhat apt, since Louisiana already has some of the harshest anti-choice laws in the country. According to NARAL, the state still has an unconstitutional and unenforceable measure that prohibits abortion by anyone other than the woman unless necessary to preserve the woman’s life or if the pregnancy was the result of rape or incest. Louisiana outlaws second-trimester abortion procedure with no exception to protect a woman’s health and in 2006 “enacted a near-total ban on abortion, to become effective if the Supreme Court overturns Roe v. Wade.”

Under the state’s Right To Know law, abortion providers in Louisiana are already required to distribute pamphlets with information about pregnancy, termination, and alternatives. Women must also sign a statement that they have received the state information and are not being coerced into an abortion before undergoing the procedure.

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Morning CheckUp: July 7, 2011

Welcome to Morning CheckUp, ThinkProgress Health’s 7:00 AM round-up of the latest in health policy and politics. Here is what we’re reading, what are you?

Bill Clinton says Dems could have done a better job selling reform: “You’ve got to do more to connect the dots,” Clinton said at yesterday’s Campus Progress conference. Right before the elections, health insurance companies “raised the premiums through the roof. And they said, ‘Oh, we hate to do this … but this Obamacare is so uncertain,” he said. Then they released their financial statements for 2009 — before the passage of the law — “and you know what happened in 2009? The for-profit insurance companies’ profits increased in that horrible year 26 percent,” Clinton said. “You cannot turn truth into power if you don’t have the facts and people don’t connect the dots.” [Politico]

Study finds variation in Medicaid spending: “In the nation’s mid-Atlantic region—identified as New Jersey, New York and Pennsylvania—a combination of high service volume and, to a lesser degree, high prices, led to the most-expensive regional care, while lower prices and volume in the South Central region of Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee and Texas produced the least-expensive care.” [Modern Healthcare]

Texas sonogram law questioned: “An abortion rights group on Wednesday asked U.S. District Judge Sam Sparks to halt enforcement of the state’s new pre-abortion sonogram law, saying it is unconstitutionally vague and an improper intrusion on doctors’ free speech rights.” The judge also described a a provision that allows state regulators to randomly inspect abortion facilities as “a little troubling to me.” [Bellingham Herald]

Santorum has an easy solution for the health crisis: “All we needed was to give people the same tax benefit as employed people,” he explained during a recent stop in Iowa. [WCF Courier]

Orlando Sentinel criticizes Florida for turning down health care funds: “Florida is in no position to be turning down health-care help. More than one in five state residents is without insurance, according to the Kaiser Family Foundation. And legislators cut funding for Medicaid and other health-care programs by more than $1 billion in the budget they approved in May.” [Orlando Sentinel]

How Obama’s ‘blended rate’ reforms undermine Medicaid expansion: “The biggest change would be to reimburse states at the same rate for all their Medicaid patients, unlike now, where states get a different rate for different populations, such as children or seniors….The blended rate would result in states having to pay a lot more for people who become eligible for Medicaid under the Affordable Care Act.” [Richard Kirsch]

CA senate committee approves rate review bill: The measure, which requires insurers to receive approval from regulators before imposing a rate increase, now moves to the Senate Appropriations Committee because the proposed regulations are estimated to cost at least $30 million per year. [SFgate]

Medicaid does help poor people: “When poor people are given medical insurance, they not only find regular doctors and see doctors more often but they also feel better, are less depressed and are better able to maintain financial stability, according to a new, large-scale study that provides the first rigorously controlled assessment of the impact of Medicaid. ” [NYT]

Conrad’s budget doesn’t “savage” health programs: “It has a very small, 10-year effect on Medicare and on Medicaid, it does not savage it,” Senate Majority Whip Dick Durbin (D-Ill.) told reporters after the meeting. “The cuts there — I can’t remember the number — but when you compare it to the Paul Ryan budget, there’s a dramatic difference.” [The Hill]

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