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Obama Administration Taps The Gas On The Affordable Care Act Litigation

Today was the deadline for the Obama Administration to seek something known as en banc review — a procedure allowing an entire court of appeals to review a three-judge panel’s decision — of the Eleventh Circuit’s erroneous decision striking down part of the Affordable Care Act. The Administration has decided not to seek this review.

This is significant not because the full court is likely to reverse the panel’s error — the Eleventh Circuit is a notorious hotbed of far right conservatives — but because it reflects the Administration’s understanding that it has little to gain from delaying this case’s ascent to the Supreme Court. One effect of an en banc petition is that it significantly extends the amount of time DOJ can wait before it has to seek review of the court of appeals’ decision in the Supreme Court. Because DOJ did not ask the full court of appeals to weigh in, it is now exceedingly likely that the Supreme Court will consider this case during its 2011-2012 term.

It is not the least bit surprising that the Obama Administration passed up this potential opportunity to delay the case until after the next Supreme Court term. For one thing, the Administration has consistently chosen not to engage in delay tactics throughout this litigation. Most recently, DOJ refused to argue that the courts lack jurisdiction to hear the case until 2015 despite the fact that one court of appeal concluded that they do lack jurisdiction and another expressed sympathy with that view. More importantly, the Administration should be eager to get this case in front of the justices since they are overwhelmingly likely to win once the case gets there.

The biggest loser in the Administration’s decision not to file are the handful of right-wing commentators who have claimed — despite no evidence to that effect — that DOJ would seek en banc review as part of some nefarious plot to delay the litigation. The most prominent of these commentators was former DC Circuit nominee Miguel Estrada, who touted this theory at a recent panel hosted by the American Constitution Society:

The strategy of the Administration is to do cartwheels to keep the case out of the Supreme Court so as not to have a ruling before the 2012 election. I mean, they take every extension. They do everything they can to stretch it out . . . . I will bet you any amount of money that the Administration is going to seek en banc in the Eleventh Circuit.

Watch it:

Estrada is one of the nation’s top appellate litigators, so he knows better than to make this kind of claim despite the vast wealth of evidence to the contrary. In 2003, Senate Democrats blocked Estrada’s nomination to the U.S. Court of Appeals for the DC Circuit because they were concerned that, despite Estrada’s significant legal talent, he would be unable to ensure that his legal analysis on the bench is untainted by his own desire to see the law through a conservative lens. That decision is looking pretty good today.

When The GOP Supported Birth Control: Bush Sr. Praised Margaret Sanger, Advocated For ‘Family Planning’

This spring, the GOP attempted to cripple family planning by voting to defund Planned Parenthood, but as Jodi Jacobson notes, Republicans were supportive of women’s health programs and family planning long before they denounced it. In May 1972, then-U.N. ambassador George H.W. Bush wrote a letter to “Alan Guttmacher (founder of the Guttmacher Institute) congratulating him on creation of a ‘family planning’ stamp commemorating (gasp!!) Margaret Sanger”:

As a congressman, Bush also advocated that family planning services be available to every woman, calling it a “public health matter.” He championed Title X funding, lobbied President Richard Nixon to enact the program, and described family planning as an effort “that help[s] further work of such worldwide importance, something for which this country can be justly proud.” “We need to make population and family planning household words,” he said in 1969. “We need to take sensationalism out of this topic so that it can no longer be used by militants who have no real knowledge of the voluntary nature of the program but, rather are using it as a political steppingstone. If family planning is anything, it is a public health matter.”

-Rebecca Leber

NEWS FLASH

Obama Admin Releases $1.89 Billion In Grants For HIV/AIDS Funding | HHS announced today that it was releasing $1.89 billion in grants through the Ryan White HIV/AIDS Program “to ensure that people living with HIV/AIDS continue to have access to life-saving health care and medications.” Approximately $1.213 billion will be sent to states and territories under Part B of the Ryan White Program, with $813 million of that total designated for the AIDS Drug Assistance Program (ADAP). Thirty Part B States and Territories will also “receive $40 million in ADAP Emergency Relief Funding (ERF) for the purpose of eliminating or reducing ADAP waiting lists and/or supporting cost containment strategies to prevent implementation of a waiting list,” HHS said. As of Sept. 22, at least 8,785 people in 10 states were on a waiting list to receive life-saving medication.

Alyssa

First Look: ‘A Gifted Man’ Actually Cares About Health Care

I’m going to need some time to figure out how I feel about a medical show starring a ghost, even if said ghost is All-Time Alyssa Rosenberg Favorite Jennifer Ehle. But I have to say, I was really impressed by the extent to which the pilot episode of A Gifted Man took on the impact of inadequate health care from multiple dimensions.

First, there’s the challenge of clinic staffing. “I need your help,” Anna’s ghost begs her ex-husband. “A lot of people depended on me. And I was stupid. I didn’t train anybody. I’m sure my staff are completely derailed. If they can get into my computer, they’ll figure it out. I need you to go there and open my files.” I do think it’s something of a problem that the clinic staff are portrayed as totally inexperienced and unknowledgeable; there need to be some potential heroes here for our doctor, Michael, to work with, but it’s a point well-made that it’s very hard to build a sustainable infrastructure that relies on charismatic leaders. Not everyone gets to come back and prod their new director into doing the right thing.

Then, there’s the way the show treats Michael’s first clinic patient. He can’t resist intervening when he hears a clinic staffer planning to send a seizure patient to the emergency room. “The ER’s going to make her wait like 10 hours and then they won’t take her because she doesn’t have insurance,” he says, feeling as if he’s done his good deed for the day. “The kid had a seizure. He needs an MRI. Send her to an imaging center.” And here’s where the show had what I think was its smartest point when the mother of the kid asks how to get to Michael’s hospital on the bus. It’s not enough to figure out what you need, and who will take your insurance to do it. You have to be able to get there without missing so much work that you get laid off, in a way that lets you take care of all of your other obligations. There are so many ways it’s hard to get the right medical care, so many things that can cause pain, including too-tight shoes.

And I really appreciate Michael’s assistant, the always wonderful Margo Martindale speaking this blunt truth. “Are these your children, Michael?” she asks him, as he cares for the family he rescued from the clinic. “I’m just trying to figure out why we’re suddenly running this place like a free clinic.” Health care is a tiered proposition in this country. It’s profoundly useful for a television show to state that clearly, to show us both sides of that proposition, and to insist that rescuing one patient or one family at a time isn’t enough. Even if it doesn’t beat the drum on health care reform, A Gifted Man is still doing something useful by laying out that framework.

NEWS FLASH

Obama: Rich Have To Pay Higher Taxes To Help Sustain Medicare | President Obama explained how the Affordable Care Act will make health care more efficient, during a LinkedIn town hall in Mountain View, California today, but stressed that the rich have to pay more in taxes to keep the program sustainable. “If people like myself aren’t paying a little more in taxes, then the only way you balance the budget is on the backs of folks like your mom who end up paying a lot more in Medicare and they can’t afford it,” he said, referring to the GOP’s alternative plan to voucherize the program and shift more costs to beneficiaries. Watch it:

Bachmann: Obamacare Will ‘Essentially Collapse’ Medicare

During an appearance in Cedar Rapids, Iowa this afternoon, Rep. Michele Bachmann (R-MN) claimed that the Affordable Care Act would “essentially collapse” Medicare and move seniors into “Obamacare.” She reiterated her false claims that Obama “stole” $500 billion from the program and even argued that the Independent Payment Advisory Board (IPAB) — a 15-member cost-cutting commission established by the law — would ration care to Iowans:

BACHMANN: In this Obamacare legislation, the president steals over $500 billion out of Medicare and he pushes it over into Obamacare…. So what the president is planning is to have Medicare essentially collapse and people will move into Obamacare. But that’s not such a good deal, is it? Because we understand there is a brand new board he put in called IPAB — 15 political appointees and they’ll be making the decisions about whether you get your health insurance or not or whether you get your health care or not. They may say you have health insurance — but the question is, will you have access to what you need for your health care?

Watch it:

In reality, the health law extends the life of Medicare trust fund by nine years and the Medicare Trustees estimate growth, not collapse, as close to 64 million Americans will be enrolled in the program by 2020, up from 47 million today. And what about those $500 billion in cuts Bachmann keeps referring to? The law does not reduce the current Medicare budget; it slows the growth in the program by removing $500 billion from future spending over the next 10 years. The cuts will help stabilize Medicare by eliminating overpayments and slowly phasing in payment adjustments that encourage greater efficiency. As a result, the CBO estimates that “growth in spending will be restrained by reductions in updates to payment rates that were included in the 2010 health care legislation.”

The IPAB board is also not nearly as onerous. It’s tasked with making binding recommendations to Congress for lowering health care spending if costs increase beyond a certain point, but it is statutorily prohibited from rationing benefits or increasing co-pays.

Pat Toomey: Religious Employers Need Additional Exemptions From Offering Coverage For Contraceptives

On Friday, Sen. Pat Toomey (R-PA) fired off a letter to the Department of Health and Human Services expressing concern about the conscience protections in a new rule requiring insurers and employers to offer contraception services without additional co-pays. A press release from Toomey’s office admits that the rule does exempt “those religious employers who primarily serve and employ individuals who share their religious tenets,” from offering the services, but argues that “this narrow exemption would prove impossible for Catholic hospitals, universities, colleges, nursing homes and charities given the diverse population that they serve and their workforce.” From the letter:

This regulation requires that a Catholic institution either violate its fundamental beliefs by providing coverage that includes contraception and sterilization or, per the new requirements of PPACA, potentially pay a heavy financial penalty for failing to provide what PPACA deems adequate health coverage to their employees. The myriad of existing regulations generated by PPACA and other federal laws already impair the work of Catholic institutions across Pennsylvania. If this additional federal regulation is imposed as promulgated, it may prompt some Catholic institutions to close their doors, adversely impacting the tens of thousands of Pennsylvanians these entities serve. The aggressive nature of this regulation threatens religious freedom and is unacceptable.

But Catholic universities and organizations already provide contraceptive coverage for their employees — the HHS rule, issued as a result of the Affordable Care Act, simply requires that they offer these services without co-payments or deductibles.

In fact, Catholic Charities has challenged state contraceptive equity laws in both New York and California, but lost “on the basis of a 1990 Supreme Court decision, Employment Division v. Smith, which barred most religion-based exemptions from laws that are neutral, generally applicable and that do not single out religion for special burdens.” The states argued that “the organizations were not being placed in the position of approving birth control, any more than any other employer that provides health coverage is deemed to express ‘approval of every medication or treatment used by the employees.’” The California Supreme Court has also rejected a challenge by Catholic Charities to that state’s similar law.

Last month, Sen. Roy Blunt (R-MO) introduced Respect for Rights of Conscience Act of 2011,” Senate Bill 1467, “to allow health care providers and pharmacists to deny birth control to women if it conflicts with their religious or moral convictions.” An identical bill was also introduced in the House.

Kathleen Sebelius Speaks Out Against Bullying Based On Size, Sexual Orientation, Religion

HHS Secretary Kathleen Sebelius appeared on MSNBC this morning to highlight the government’s anti-bullying and anti-obesity efforts, noting that kids get bullied “because of their size, of their shape, of their color, of their sexual orientation, their religion, how they look.” “I think what we have to be able to do is have parents and adults and community leaders teach kids about tolerance — celebrate the notion that we’re not all the same and that makes America a bigger and stronger country,” she said.

Sebelius also strongly condemned cyberbullying, which she described as “pretty invisible” and “even a scarier atmosphere for kids to be in.” “The problem is getting worse in that regard, there there are now ways can go after kids and never be seen by anybody,” she added. Watch it:

MAP: States With The Most Harmful Abortion Restrictions

The New York Times’ Dorothy Samuels offers this new map on states’ growing efforts to restrict access to abortion services. States with the darkest shade “have enacted five of the most harmful restrictions: mandatory waiting periods; demeaning “counseling” sessions lacking a real medical justification; parental consent or notification laws that pose a particular hardship for teenagers from troubled homes, including incest victims; needlessly onerous clinic “safety” rules governing such things as the width of hallways and the amount of storage space for janitorial supplies; and prohibitions on abortion coverage in insurance policies. States in lighter shades have fewer of these restrictions. Twenty-seven states have enacted three or more of these laws, while only 12 states, shown in white, have none”:

According to the Guttmacher Institute, in 2011, states enacted at least 61 abortion restrictions, more than double the previous record of 28 abortion restrictions in 1997:

Texas Doctor On Perrycare: ‘This Kind Of Thing Happens In Somalia’

Texas Gov. Rick Perry (R) blames the federal government’s inflexibility in granting Medicaid waiver for his state’s high uninsured rate and boasts that the Lone Star State still has the best health care system in the world. “The fact is, people continue to move to the state of Texas, some of the highest rates in the country because we’ve created a state where opportunity is very much the word of the day there, if you will, for finding work and what have you,” he said during the GOP presidential debate on Thursday. “Our health care is part of that. Our education is part of that. We are proud of what we put together in the state of Texas.”

But as the Tracy Jan details in today’s Boston Globe, many working Texans who don’t have an offer of employer based insurance or qualify for Medicaid, are falling through the gaps of the state’s patchwork health care system, relying on a complex web of community health care centers and charity care for basic health care services. The results are often deadly:

Dr. Katherine Yudeh King, a pediatrician at Ben Taub General Hospital, which serves a large uninsured population, said one of her patients, a 15-month-old boy, died from dehydration due to diarrhea because his family brought him to the hospital too late, assuming they could not afford care.

This is the type of thing that happens in Somalia and other developing nations, not something that should happen in Houston,’’ said King, one of the founding members of Doctors for Change, a group that advocates for universal health care in Harris County.

Bellow are nine other indicators of the state’s dilapidated health care system:

1) Texas has the highest rate of uninsured people in the country – 24.6 percent – and the number of uninsured that has grown by 35 percent during Governor Rick Perry’s 11-year tenure.

2) Overall health care quality for Texas is poorer than in every other state, especially when it comes to preventive, acute, and chronic care, as well as care for diabetes.

3) Texas places 39th among the states in the percentage of adults over 50 who receive recommended screenings such as mammograms and colonoscopies.

4) A fifth of Texas’ pregnant women receive no prenatal care in their first trimester.

5) 16.8 percent of children are uninsured, more than all but one other state, and only half of Texas children have a medical provider who knows them and coordinates their care. More than a third of them have not received recommended medical and preventive care within the year, and immunization rates are low as well.

6) Texas also ranks last in the country in the percent of children who receive needed mental health care.

7) The state cut two-thirds of the funding for women’s health clinics and underfunded Medicaid by almost $4 billion, in addition to cutting hospital reimbursements.

8) Perry vetoed a bill in 2001 that would have expanded Medicaid services and added cancer screenings such as Pap smears to women’s health services. In 2003, Texas tightened the eligibility requirements for the Children’s Health Insurance Program, and as a result, 237,000 children were kicked off its rolls, said Garnet Coleman, a Democratic state representative from Houston who has served in the Texas Legislature for 20 years and is a member of the House Public Health Committee.

Morning CheckUp: September 26, 2011

Obama faces deadline to expedite ACA challenge: Today, the Justice Department could ask the full U.S. 11th Circuit Court of Appeals in Atlanta to reconsider a 2-1 decision in August that declared the law’s mandate unconstitutional or the administration could “opt to skip the full review in the lower court and appeal directly to the Supreme Court this fall.” [LA Times]

GOP will press administration on ACA waivers: Rep. Mike Burgess (R-TX) “told The Hill he’s going to recommend that the Energy and Commerce Committee hold a hearing after the department makes public the final list of approved and rejected applications. As of last month, HHS had approved 1,472 one-year waivers and 106 three-year waivers representing about 3.4 million Americans.” [The Hill]

Florida getting a head start on anti-abortion legislation: A Florida state senator “has introduced the first anti-abortion bill to be considered by the Florida Legislature in its 2012 session.” The measure would “restrict “the circumstances in which an abortion may be performed in the third trimester or after viability.” [Florida Independent]

U.S. ranks high among preventable deaths: “The United States placed last among 16 high-income, industrialized nations when it comes to deaths that could potentially have been prevented by timely access to effective health care, according to a new Commonwealth Fund study published in the November issue of Health Policy.” [Commonwealth Fund]

Employers will not be penalized on dependent coverage: “Employers will not face health care reform law penalties if they do not offer affordable coverage to employees’ dependents and they may not even have to extend coverage to dependents, depending on the outcome of regulatory guidance.” [Business Insurance]

CLASS supporters to continue to fight for program: “Congressional champions of the health law’s controversial CLASS Act said they’ll do all they can to keep it alive after reports Thursday that the Obama administration is putting the long-term care program on ice.” [The Hill]

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