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Why Rick Perry’s Anti-Abortion Law Demonstrates His Contempt For The First Amendment

The Supreme Court held nearly 70 years ago that laws forcing people to say things against their will violate the First Amendment. This is the reason why George H.W. Bush-appointed Judge Sam Sparks temporarily suspended a new Texas law that requires doctors to tell their patients medically-irrelevant information, such as stating that the fetus has a heartbeat and discussing “the presence of external members and internal organs.”

Moreover, the Texas law doesn’t simply force doctors to speak against their will, it also places a crushing burden of disclosure on rape victims. As Judge Sparks explains:

Section 171.012(a)(5) requires a pregnant woman to complete and sign a specified election form that certifies her understanding of many of the Act’s various requirements. The most troubling aspect of the required certification is paragraph (6), which reads:

6) I UNDERSTAND THAT I AM REQUIRED BY LAW TO HEAR AN EXPLANATION OF THE SONOGRAM IMAGES UNLESS I CERTIFY INWRITING TO ONE OF THE FOLLOWING:

_____ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT, INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT HAS BEEN REPORTED TO LAW ENFORCEMENT AUTHORITIES OR THAT HAS NOT BEEN REPORTED BECAUSE I REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT RISK OF RETALIATION RESULTING IN SERIOUS BODILY INJURY. . . .

The Court need not belabor the obvious by explaining why, for instance, women who are pregnant as a result of sexual assault or incest may not wish to certify that fact in writing, particularly if they are too afraid of retaliation to even report the matter to police. There is no sufficiently powerful government interest to justify compelling speech of this sort, nor is the Act sufficiently tailored to advance such an interest.

Unsurprisingly, Texas Gov. Rick Perry (R) wasted no time in attacking the Court’s decision, but Perry provided no explanation for why he thinks the Constitution allows doctors to be conscripted into anti-abortion advocacy. If Texas can force doctors to effectively try to talk women out of getting an abortion, then there is nothing preventing the federal government from requiring all patients seeking treatment to first listen to a 10 minute lecture on the virtues of Obamacare — or, for that matter, preventing a Democratic Congress from forcing Perry himself to issue a public statement touting his undying love of massive tax hikes on the rich.

In other words, Sparks’ decision isn’t just correct, it is obviously correct. Rick Perry has no right to force people to become mouthpieces for his own agenda.

NEWS FLASH

Virginia Gov. McDonnell Admits He Hasn’t Read Abortion Regulations He Insists Are In The ‘Interest Of Health’ | Last week, Virginia health officials released draft regulations that could effectively drive the state’s abortion clinics out of practice. Yesterday on his monthly call-in show, Virginia Gov. Bob McDonnell (R) insisted that the intent of the regulations, which were formulated during an “emergency” process that bypassed public notice, was not to close the facilities, but “in the interest of health.” That’s a curious determination considering, on the same show, he admitted that “he has not read the draft regulations for abortion clinics.” With “86 percent of Virginia’s counties lacking any abortion providers at all,” it’s diffcult to see how forcing the few Virginia clinics that exist to close is “in the interest of health.”

Grassley Backpedals After Town Hall Constituent Corrects Him On Health Care ‘Rationing’ Lie

ThinkProgress filed this report from a town hall in Carroll, Iowa.

Politifact’s 2009 “Lie of the Year” was that the landmark health care reform legislation contained a clause authorizing “death panels.” The smear, started by former Alaska Gov. Sarah Palin (R), was propagated by other Republicans, including long-time Sen. Chuck Grassley (R-IA), who warned that the bill could “pull the plug on grandma.”

At a town hall in Carroll, Iowa, on Monday, Grassley repeated the falsehood that the health care reform law would lead to “rationing” and result in seniors not getting the care they need. One Iowa constituent, however, challenged Grassley’s characterization.

Sharon Gruber politely told the senator that what the law actually does is “move away from [paying for] procedures and going to [paying for] outcomes.” In a surprise twist, Grassley not only agreed with the woman’s assessment that the law simply shifts to a pay-for-outcome model, but the Iowa senator actually reversed course and agreed that “what you say is absolutely right and should be done,” less than two minutes after calling the provision “rationing.”

GRASSLEY: The reason why I think you have to worry about this panel rationing, or leading to rationing, is because presently, health care costs go up about two to three times the rate of inflation. Their goal is to not have health care costs after they kick in more than 1.5 percent the rate of inflation. So where’s that going to come from? That’s going to come from not reimbursing doctors, hospitals, etc. as much, and then that’s going to lead to people deciding, “if you’re over 80 years old, should you have a knee replaced?” Whereas nowadays there’s no question about it.

GRUBER: I think that what they’re trying to do is move away from the fact that doctors and hospitals are paid on the procedure that’s used. [...] We’ve gotta get the fraud out of the system because that’s where a lot of the costs go. And this is part of it. They’re looking to move away from procedures and going to outcomes, from what I understand.

GRASSLEY: And that’s a very good thing to do. But they’re still limited to the decisions they’re making to be within 1.5 percent over inflation. But what you say is absolutely right and should be done. Not everything in the president’s health care reform bill is bad.

Though Grassley told Gruber that “[n]ot everything in the president’s health care reform bill is bad,” it’s important to remember that the Iowa senator joined every one of his Senate Republican colleagues in voting to repeal the entire bill in February, including the shift to a pay-for-outcome model, a ban on preexisting conditions, and increased funding for community health centers.

ThinkProgress spoke with Gruber after the event to get her reaction. She said she was “very disappointed” in Grassley for promoting the myth of rationing and death panels. Gruber noted that in the past he had “tended to be above [...] these talking points,” but that was no longer the case:

NEWS FLASH

Study: Foreclosures Tied To Increasing Health Problems | According to a paper by Janet Currie of Princeton University and Erdal Tekin of Georgia State University, published by the National Bureau of Economic Research, there is “a direct correlation between foreclosure rates and the health of residents in Arizona, California, Florida and New Jersey.” The two economists found that “an increase of 100 foreclosures corresponded to a 7.2% rise in emergency room visits and hospitalizations for hypertension, and an 8.1% increase for diabetes, among people aged 20 to 49.”

Virginia Anti-Abortion Lobbyist Married To Top State Health Official Who Helped Draft Clinic Regulations

Victoria Cobb, a top anti-abortion activist, has lobbied for clinic regulations for a decade. (Photo: Richmond Times-Dispatch)

Last week Virginia Gov. Bob McDonnell (R) released harsh new anti-abortion regulations that could shut down the state’s exisiting abortion clinics. Now the Huffington Post is reporting there may have been a conflict of interest in McDonnell’s administration over the regulations. Matt Cobb, deputy secretary of health and human resources, helps lead the office that will interpret the regulations. He is also married to Victoria Cobb, a prominent anti-abortion lobbyist in the state who has spent years lobbying for clinic regulations like the ones just released:

Victoria Cobb, president of the right-wing Family Foundation of Virginia, has been lobbying state lawmakers for the past decade to pass legislation that would force the Department of Health to release abortion clinic regulations like those adopted by South Carolina in 1996 that reduced the number of clinics in the state from 14 to 3.

Tarina Keene, executive director of NARAL Pro-Choice Virginia, told the Huffington Post that Matt Cobb sat in on meetings discussing the regulations with her and her colleagues:

“People who have been dealing with these issues find it odd that he’s in those meetings about the regulations,” Keene told HuffPost. “I find it really intriguing to think that the premiere anti-abortion advocate is basically married to the person who’s now in charge of implementing the clinic regulations, and he’s involved every step of the way.” [...]

A former top state health official, who spoke with HuffPost on the condition of anonymity, agreed, saying he would be “surprised if [Matt] Cobb was not reviewing” the regulations while they were being written. The official explained that the office of the Secretary of Health and Human Resources has some leeway in terms of how they can interpret what the legislation says.

Chris Freund, a spokesman for The Family Foundation, said the Cobbs’ marriage did not influence the regulations. Freund has also referred to the regulations as the “biggest pro-life victory in Virginia in a decade.” They are even more far-reaching than those passed recently in Kansas, and force abortion clinics to comply with overly-onerous construction requirements that were intended to “inform the construction of new hospitals — not doctors’ clinics that already exist.”

“That tells you right there that this is not about safety, it’s about politics,” said Jill Abbey, who oversees four clinics in Virginia, which she says would not be able to operate under the new regulations.

The regulations come after McDonnell signed SB 924 into law, which requires all clinics in Virginia performing first-trimester abortions to be regulated like hospitals. The Virginia Board of Health will vote on these proposed regulations on Sept. 15, and if approved, they will go into effect on Dec. 31.

NEWS FLASH

Federal Health Insurance Subsidies For Laid-Off Workers End Today | Kaiser Health News reports that federal subsidies to help laid-off workers continue their health care coverage — “one of the key consumer benefits of the federal stimulus package” — will end today. Millions of laid-off workers benefitted from federal subsidies for COBRA, a program that allows people who lose their jobs to keep employer-provided insurance, usually for 18 months, if they pay the entire premium and some part of the administrative fees. Congress extended the COBRA subsidy three times to cover workers who lost their jobs through May 2010, but increasing concern about the national deficit led them to decline another extension last year. Health care costs for the unemployed are expected to rise sharply and with them, concerns about how millions of families will cover those expenses.

GOP Governors Target Undocumented Immigrants In New Medicaid Proposal

RGA Chairman and Mississippi Gov. Haley Barbour

Yesterday the Republican Governors Association (RGA) released a list of 31 proposals designed to bring down the cost of Medicaid, which is one of the costliest budget items for many states. Unsurprisingly, the plan would give governors much greater control over Medicaid programs and loosen federal restrictions.

The Wall Street Journal notes that the GOP governors also use the proposal to take aim at one of their favorite scapegoats — undocumented immigrants:

The RGA has floated most of the ideas before, but one jumped out as new. Solution No. 5 would “require the federal government to take full responsibility for the uncompensated care costs of treating illegal aliens.” Keep in mind that federal law already prohibits illegal immigrants from enrolling in Medicaid.

But RGA Policy Chairman and Mississippi Gov. Haley Barbour said illegal immigrants sneak onto the program in his and other states and add to its tab.

“Let’s don’t kid ourselves,” Gov. Barbour told reporters during a briefing at RGA headquarters in Washington. “There are people who are getting on the system and violating the law.”

Undocumented immigrants can get emergency care through Medicaid, but they must pay for all non-emergency care and are not eligible for other Medicaid benefits.

Because illegally enrolled non-citizens make up such a small portion of people on Medicaid, the proposal is clearly more about ideology than cost-cutting. Barbour and Virginia Secretary of Health and Human Resources Bill Hazel both declined to say how much it actually costs their states when undocumented immigrants don’t pay their hospital bills, but “Democratic governors haven’t cited it as a significant cost.”

Studies have found that “because most illegal immigrants are relatively young and healthy, they generally don’t need as much health care treatment as U.S. citizens.” According to USA Today, they account for less than 2 percent of national medical spending.

Ironically, Republican efforts to block immigrants from enrolling in government insurance programs means that undocumented immigrants are much less likely to have health insurance than other families, which drives up health care costs when they inevitably show up in emergency rooms to get care. An effort to add legal immigrant children to the State Children’s Health Insurance Program was blocked in the Senate in 2007, and lawmakers added language to ensure that illegal immigrants were excluded.

NEWS FLASH

Bush Appointed Judge Calls Out Conservative Hypocrisy On Abortion And Health Reform | Yesterday, George H.W. Bush-appointed Judge Sam Sparks blocked a Texas law forcing abortion providers to effectively engage in anti-abortion advocacy with their patients. A longer post explaining why this law violates the First Amendment is forthcoming. In the meantime, one footnote in Judge Sparks’ decision stands out:

It is ironic that many of the same people who zealously defend the state’s righteous duty to become intimately involved in a woman’s decision to get an abortion are also positively scandalized at the government’s gross overreaching in the area of health care.

Apparently, Judge Sparks never got the memo explaining that court decisions that implement conservative policy preferences are exactly what the framers intended, but court decisions that actually allow progressive elected officials to govern are unforgivable judicial activism.

Mike Huckabee To Keynote For ‘Personhood’ Group Pushing To Outlaw Contraception

Former Arkansas Gov. and Fox News host Mike Huckabee (R) will be the keynote speaker at an anti-abortion event in Jackson, Mississippi next week. Huckabee will help raise money for Personhood Mississippi, a radical group that is trying to amend the state constitution to give every fertilized eggs full rights:

The Personhood Mississippi group is kicking off its campaign Sept. 8 in support of the “personhood” initiative that is slated to appear on the Nov. 8 ballot.

The initiative seeks to define a “person” as a being at the point of fertilization, which would restrict abortion rights in Mississippi.

Tickets for the banquet, which will be held at First Baptist Church on North State Street, start at $50.

RH Reality Check points out that Huckabee was actively involved in the failed 2008 Colorado Personhood effort as well. Personhood USA hopes to get proposals on the ballot in nearly half the states by 2012.

As ThinkProgress has previously reported, Personhood USA and its affiliates are fringe anti-abortion groups that are determined to redefine life as beginning at the moment of fertilization, effectively outlawing contraceptives like birth control pills. The medical community has long been in agreement that fertilization does not mark the beginning of a pregnancy — fertilized eggs must first be implanted, and only about half of fertilized eggs actually result in a pregnancy.

Yet a growing number of lawmakers like Huckabee are supporting Personhood USA’s efforts to buck medical expertise and legally define life as the moment a sperm meets an egg. These laws would turn common forms of contraception into the legal equivalent of homicide and place millions of women in jeopardy.

Contraceptives like the pill and IUDs not only act to prevent fertilization, but, if fertilization does occur, may prevent that fertilized egg from implanting in a woman’s uterus. Personhood USA considers this tantamount to abortion, and wants to make it a punishable offense for women to control their own fertility. According to 2008 numbers, around 11 million American women use birth control pills and another 2 million use intrauterine devices (IUDs).

Because “personhood” legislation could make any effort to terminate a pregnancy a criminal act, it could also prevent doctors from saving the lives of women with ectopic pregnancies, which are never viable and need to be terminated as soon as possible.

NEWS FLASH

Federal Judge Restores Kansas Planned Parenthood Funds | In another legal victory for Planned Parenthood, yesterday a federal judge ordered that Kansas restore federal family planning funds to the organization while the case is being appealed. Planned Parenthood said it would be forced to shut down its clinic in Hayes on Friday unless it learned this week when it would start receiving its share of federal funds again. On Aug. 1, the same judge, Thomas Marten, temporarily blocked Kansas from enforcing a budget provision stripping Planned Parenthood of much of its funding. However, the state did not release the money. Planned Parenthood also said that without the funding, its Wichita clinic would not be able to continue offering discounted services to low-income patients.

Morning CheckUp: August 31, 2011


Texas sonogram law struck down: Yesterday a federal judge temporarily blocked key parts of a controversial anti-abortion law signed by Gov. Rick Perry (R) in May. The sonogram law would require women seeking abortions to view an ultrasound and listen to the heartbeat of their fetus at least 24 hours before the procedure. The law was set to go into effect on Thursday. [Reuters]

Republican governors propose overhauling Medicaid: Yesterday the nation’s Republican governors released a list of proposals to loosen restrictions and give them greater control over Medicaid programs in their states. While the plan does not goes as far as the Republican budget, which would have slashed $700 billion over 10 years from Medicaid, it does advance GOP priorities like repealing the requirement that states not cut their Medicaid rolls. [Healthwatch]

GOP tax expert to lead supercommittee staff: A veteran Senate GOP tax expert was picked yesterday to head up the staff for the congressional “supercomittee” tasked with finding $1.5 trillion in deficit savings by November. Republican and Democratic leaders praised Mark Prater, chief tax counsel for Republicans on the Senate Finance Committee for nearly two decades, for being an honest broker with extensive knowledge of tax and health policy. [Washington Post]

Michigan to act on health care exchanges: Michigan is one of only a dozen states that has yet to act on the Affordable Care Act’s mandate to set up statewide health care exchanges. But that will change come fall, as Republicans in the Michigan House will take up the challenge, according to a spokesman for Speaker of the House Jase Bolger (R). [Michigan Independent]

Santorum hits Perry on HPV vaccine: Republican presidential contender Rick Santorum attacked the field’s new frontrunner, Gov. Rick Perry (TX) over his controversial 2007 executive order mandating that girls receive a vaccine for the sexually transmitted disease HPV. “To require it, and have parents have to be aware of it and have to opt out, that is the heavy hand of government,” Santorum thundered. [PoliticsPA]

U.S. newborn death rate higher than 40 other countries: a new study of global mortality rates for newborn babies shows that the U.S. now trails 40 other countries when it comes to risk of newborn death with a newborn death rate of 4.3 per 1,000 live births. That’s a marked decline from 1990, when the U.S. had the 28th lowest risk. [USA Today]

Perry defends letter praising HillaryCare: During a radio interview with Sean Hannnity yesterday, Gov. Rick Perry (R-TX) defended his 1993 letter praising then-First Lady Hillary Clinton’s efforts to reform health care. Perry said he approved of the intention to reform health care, but criticized the final product. “No one could have imagined the horrible monstrosity she cooked up, in fact not to be outdone until ObamaCare years later,” he said. [ABC]

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NEWS FLASH

Haley Barbour Contradicts GOP Health Plan, Says Not All States May Want To Block Grant Medicaid | Mississippi Gov. Haley Barbour (R) is at odds with the Republican plan to transform the federal government’s contribution towards Medicaid into a block grant for states, telling reporters today that while he strongly supports the initiative, “not all Republican governors may want a block grant.”“It’s up to the states to decide,” Barbour said. As Politico Pro’s Jason Millman reports, “Barbour, chairman of the Republican Governors Association Public Policy Committee, made the remarks during a meeting with reporters in Washington marking the release of a committee report detailing 31 policy proposals for overhauling Medicaid. The report noted that a block grant ‘may’ provide an innovative opportunity for states to implement a transparent financing mechanism that improves health care efficiency and quality.”

Gov. McDonnell: Law Which Seeks To Regulate Abortion Clinics Out Of Existence Is ‘In The Interest Of Health’

Gov. Bob McDonnell (R-VA)

On Friday afternoon, as many Americans braced for Hurricane Irene, Virginia state health officials quietly released draft regulations requiring state abortion providers to meet the physical plant requirements of hospitals. The guidelines — the result of legislation Gov. Bob McDonnell (R-VA) signed earlier this year — were formulated through an “emergency” process that bypassed the normal public notice procedures and require existing abortion clinics to meet the standards of brand new construction. For instance, examination rooms at clinics must now “contain at least 80 square feet of clear floor space; some operating rooms must have at least 150 square feet; and public corridors must be at least 5 feet wide – 6 feet if patients are wheeled through them on stretchers.”

Officials at the clinics have described the rules as an “‘attack on reproductive rights‘ intended to force clinics to close, not enhance safety as some proponents suggest.” But during his monthly call-in radio show this morning, McDonnell defended the regulations, saying that they were “in the interest of health”:

“There’s ample time for the public to be involved, to give us their input,’’ McDonnell said. “We’re just following what the General Assembly has passed, and that is these clinics be regulated as hospitals.” [...]

McDonnell, who opposes abortion rights, said he signed and supported the bill and that the regulations are not designed to close clinics.

There will be some increased costs, and many of these providers obviously are for-profit entities and they will factor that into their costs,’’ he said.

But if the proposed guidelines aim to improve health and safety, then why didn’t legislators allow appropriate time for the state to conduct a proper assessment and review of the kind of changes that could be necessary? Instead, legislators — who had been pushing this initiative for years — mandated “that the rules be written no more than 280 days after the bill was signed into law.”

First trimester abortions (the only kind that can be legally performed in Virginia clinics) are also “one of the safest medical procedures available in this country and [are] already heavily controlled by state and federal regulations.” Should the Board of Health vote to approve the rules on September 15th, at least some of the state’s 22 clinics will likely shut down and access to abortion for Virginia women — 86 percent of Virginia’s counties already lack any abortion providers at all — will be further compromised.

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Climate Progress

Dangerous Floodwaters After Hurricane Irene Leave Behind Harmful Chemicals In Northeast

Flooding in Vermont caused by Hurricane Irene

The remnants of Hurricane Irene have passed over the East Coast, but rivers swollen by the storm’s extreme rain continue to endanger homes and lives from New Jersey to Vermont with the worst flooding in decades (and after the region had seen the wettest August on record even before Irene). Washed-out bridges and roads from the torrential rains cut off access to 11 towns in Vermont, leading FEMA officials to use helicopters to deliver supplies.

But once the floodwaters recede, the damage will go beyond rebuilding homes, bridges, and roads destroyed by extreme rains. Residents in the flood-soaked areas will have to worry about sewage, pesticides, and other contaminants that were left behind by the flood or that were swept into East Coast waterways. One New York apartment building has already been evacuated because oil carried by the floodwaters contaminated several apartments. The U.S. Geological Survey sent crews to follow the storm and test for bacteria and chemicals in rivers, according to the New York Times:

“What typically happens is that you get a significant amount of rainfall that leads to a significant amount of runoff,” said Charles Crawford, sampling coordinator for the agency.

That runoff, he said, carries pesticides from farmland, gardens and lawns like those used for termites around the foundation of homes. [...] Excessive amounts of nutrients like nitrogen and phosphorus, Mr. Crawford said, could cause algae blooms that can threaten aquatic life and fisheries. And sewage in the high flows from the hurricane can lead to higher concentrations of E. Coli in areas that use surface water for drinking, he said.

Contaminated water is frequently a problem following flooding from heavy rains or storm surge from a massive hurricane. After Hurricane Katrina, tests found extremely high levels of sewage bacteria in water samples. When thunderstorms deluged Nashville in May 2010, health officials warned residents to treat all floodwater as if it had sewage in it because of reports about overflowing sewage systems. Floodwaters from the Mississippi River in May swept pesticides and fertilizer down the river and into the Gulf of Mexico, and this highly polluted water swamped 3 million acres of farmland along the way.

Global warming continues to make hurricanes more intense and dangerous and fuels more “500-year” floods along the Mississippi River. “Once in a lifetime” storms are no longer a rarity, and handling the dangerous chemicals dispursed by these floodwaters and heavy rains will continue to potentially endanger people’s health and harm aquatic life in waterways as weather patterns continue to grow more extreme.

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NEWS FLASH

Iowans Show Up At Rep. King’s District Office To Protest Vote To End Medicare | After a mix-up over the date of a Rep. Steve King (R-IA) town hall, a dozen protesters showed up at his Sioux City district office to voice their message anyway. ThinkProgress spoke with one of the Iowans, Ken Mertes, who said he was there to speak out against King’s vote to end Medicare. “The Ryan budget picks on older Americans and poor people,” Mertes argued.

Attendees also complained that there is no picture of President Obama hanging in the district office, despite it being federal space. ThinkProgress asked a staff member inside about the matter and they claimed to have never received a picture of Obama (though they had received presidential pictures in each of former President Bush’s terms).

Update

ThinkProgress originally wrote that the town hall was cancelled, when in fact it appears to have been a mix-up over dates. King’s website lists the August 30 Sioux City town hall on its website without noting the year. We have corrected the error.

Rick Perry: Hillary’s Efforts To Reform Health Care Are ‘Commendable,’ ‘Worthy’

Conservatives have long criticized Mitt Romney for implementing an individual mandate in Massachusetts and have suspiciously eyed Newt Gingrich and Jon Huntsman for flirting with similar proposals in the past. Well, now right-wing activists still learning about Rick Perry’s record may have new reason to worry about the Texas governor’s purity on the health care issue. The Daily Caller has dug up old reports of a 1993 letter then-Agricultural Commissioner Perry sent to First Lady Hillary Clinton, commending her efforts to reform the health care system and asking the administration health task force in charge of drafting the bill to take the needs of Texas farmers into consideration:

In a letter to Clinton, who is now U.S. Secretary of State, Perry wrote: “I think your efforts in trying to reform the nation’s health care system are most commendable.” “I would like to request that the task force give particular consideration to the needs of the nation’s farmers, ranchers, and agriculture workers, and other members of rural communities,” Perry continued, noting his administration’s focus on economic development for rural Texans. “Rural populations have a high proportion of uninsured people, rising health care costs, and often experience lack of services.”

Again, your efforts are worthy,” Perry concluded, ”and I hope you will remember this constituency as the task force progresses.”

The letter first surfaced in 2005, when Sen. Kay Bailey Hutchison’s (R) unsuccessful gubernatorial campaign attempted to use it against Perry. Watch the ad:

Perry has since condemned Clinton’s failed reform as “a government-run, one-size-fits-all health system” — the very same rhetoric he employs against President Obama’s very different (and and likely more conservative) law.

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Survey: Most Uninsured Would Rather Purchase Coverage Than Pay Penalty

Sarah Kliff points to this survey of the uninsured, which finds that an overwhelming majority — 76 percent of the uninsured — would rather comply with the individual mandate in the Affordable Care Act and purchase insurance than pay the far less onerous penalty for forgoing it. “That would reduce the number of people without insurance to 5 percent of the population and have 25 million Americans purchasing through the exchanges, just slightly higher than the 24 million that the CBO projected,” she writes:

All of this of course depends on the affordability of coverage. Should the premium credits and out of pocket protections prove sufficient — and the federal government implements an effective get-insured campaign — then we will likely experience the kind of mandate success seen in Massachusetts (where most are now insured even though the maximum penalty in actually substantially below the federal amount!) But there is also an interesting behavioral dimension in how people will perceive the mandate. As the Congressional Budget Office has concluded, “health insurance mandates differ from some other requirements, such as the requirement to pay taxes” because “enrollees individually receive a tangible good–health insurance—that they value.” And when considering purchasing coverage, people compare the price of insurance with their perception of its value — not the size of the mandate penalty.

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How A Republican President Can Undermine The Affordable Care Act

Jonathan Bernstein considers the results of the latest Kaiser Family Foundation tracking poll and persuasively argues that public indifference and time may ultimately save the Affordable Care Act from repeal. It’s a good point, but one that may not hold true if a Republican becomes president in 2012.

As Inside Health Policy’s Sahil Kapur reports, while the executive branch doesn’t have the authority to outright repeal a law passed by Congress, a president can rely on a variety of tools and appointments to delay or weaken its implementation:

– GRANT WAIVERS: “The president could generously grant waivers to employers and other entities from having to abide by some of its regulations or taxes (such as the tax on so-called cadillac health plans). [...] The health law also allows states to receive “innovation waivers” from the law, beginning in 2017, if they set up their own health care systems that seek to achieve ACA coverage goals in a different way. A president who’s uninterested in observing the reform law’s intended aims may conceivably grant waivers to states even if they do not set up adequate alternate systems.”

– DELAY IMPLEMENTATION: “[T]he executive branch is tasked with making sure states set up and operate insurance exchanges for individuals and small businesses to pool risk — state legislatures can do this on their own, and if they refuse, the federal government would take over. A president could “drag their heels” on issuance of further exchange regulations — or alter or reverse existing ones — and move slowly with procedures to identify people who are uninsured to bring them into the exchanges.”

– NOMINATE OPPONENTS OF REFORM: “The administration could slow-walk the implementation by not hiring regulators tasked with implementation of the law..And you could put somebody in charge of CMS who is hostile to [the health reform law]” and tries to roll back some of its provisions. Among the future appointments are 15 officials to sit on the reform law’s Independent Payment Advisory Board, a powerful panel charged with finding Medicare cost-savings in payments to providers, which is set to take effect in 2014.”

– STOP DEFENDING ACA IN COURT: The Justice Department could “switch sides” and argue that the individual mandate and perhaps the law in its entirety is unconstitutional. A Republican president could point to the Obama Justice Department’s reversal of stance on the Defense of Marriage Act as precedent for an administration arguing against the constitutionality of a federal statute.

All of this becomes a lot harder as reform is implemented and Americans begin to experience its benefits, and so a Republican wishing to undermine the law has to start peeling back its provisions following the election. But even that is not without its political obstacles, for as Bernstein points out, “are Republicans really going to restore the ability of insurance companies to deny coverage based on pre-existing conditions? Are they really going to bring back the donut hole (which isn’t closed yet, but is closing under ACA)? Are they really going to remove the other provisions that people have been living with for a while now?” Realistically, they probably won’t — particularly if they offer no viable alternative.

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NEWS FLASH

Poll: 66 Percent Of Americans Support New Requirment That Insurance Companies Provide Birth Control At No Additional Cost | Despite Fox News’ best attempts to paint the new rule as frivolous nonsense, a recent poll finds that 66 percent of Americans agree with the Department of Health and Human Services’ recent ruling that insurance companies provide birth control without co-pays. As the American Independent notes, the Kaiser Health Tracking Poll finds that while the majority support such a requirement, only 24 percent of the public oppose the decision.

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NEWS FLASH

U.S. Researchers Infected Guatemalan Prisoners With Syphilis | United States researchers infected 1,300 Guatemalan prison inmates with venereal disease for an experiment to test penicillin in the 1940s. The NIH-funded project “did not treat participants as human beings, failing to even inform them they were taking part in research, as was the case for a similar study in the United States,” a presidential commission announced on Monday.

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