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Perry Declares ‘There Is Nothing In That Constitution’ That Allows Medicaid To Exist

By Scott Keyes posted from ThinkProgress Justice on Oct 3, 2011 at 5:42 pm

ThinkProgress filed this report from a town hall in Derry, NH.

This weekend in New Hampshire, Texas Gov. Rick Perry (R) doubled down on his belief that programs ranging from Medicaid to federal assistance to low-income public school students violate the Constitution.

Speaking to a town hall crowd in Derry, Perry told the audience that “there is nothing in that Constitution says Washington DC is supposed to be telling us how to deliver health care.” The Texas Governor went on to express his belief that “there’s nothing in there that says Washington DC is supposed to be telling us how to educate our children.”

PERRY: One of the last things, number 6 [on the pledge I just signed] is to faithfully and forcefully uphold, follow and protect the United States Constitution. There is nothing in that Constitution that says Washington D.C. is supposed to be telling us how to deliver health care. There’s nothing in there that says Washington D.C. is supposed to be telling us how to educate our children. That needs to stop. And I’m the president that’s going to stand up and say, “no longer is Washington D.C. going to mandate back to the states how to take care of health care or their children.”

Watch it:

In fact, there is ample justification in the Constitution for the federal government to be involved in health care. Article I Section 8 of the Constitution allows the federal government raise revenues and use them to provide for the “general welfare” of the nation. As ThinkProgress legal expert Ian Millhiser explains this includes the power to offer money to states if they agree to comply with certain conditions:

The federal government does give Texas some extremely generous grants, which Texas is allowed to keep so long as it spends the money according to certain instructions, but Perry is perfectly free to give the money back if he doesn’t like these instructions. . . .

The federal government provides a very generous program called Medicaid that allows Texas to provide health care to millions of Texans. Rick Perry is perfectly free to give this money back if he doesn’t want the federal government in his business. Indeed, Perry even flirted with doing just that before he realized that Medicaid is actually a really great deal for Texas that he didn’t want to turn down.

Millhiser concluded that “Perry’s suggestion that he should get all the money without the strings doesn’t make him a hero of the 10th Amendment, it just makes him a mooch.”

Indeed, Perry has developed a habit in his campaign of simply dismissing those programs he dislikes as “unconstitutional.” Despite the fact that the federal government’s involvement in health care, from Medicare to Medicaid to the Affordable Care Act, has kept millions out of poverty and averted thousands of preventable deaths, Perry has made dismantling these “unconstitutional” programs the centerpiece of his political belief system.

NEWS FLASH

Rick Perry signed excercise mandate for students | Rick Perry has taken a lot of heat from conservatives for issuing an executive order in February of 2007 requiring Texas girls to receive the HPV vaccination and has since admitted that he erred in mandating the vaccine. But that same year — just six months later — Perry signed “a bill that required each student to engage in ‘moderate or vigorous physical activity … throughout the school year,’” the Huffington Post reports. The measure may further undercut Perry’s attacks against Mitt Romney’s individual health insurance mandate and his previous claims that it is akin to socialism.

– Karl Singer

By Guest Blogger on Oct 3, 2011 at 4:55 pm

NEWS FLASH

What’s Behind The Higher Premiums Increases? | Austin Frakt has a good comprehensive post examining the possible causes of the recent spike in health insurance premiums, considering everything from insurers’ anticipation of higher utilization to changes in the risk pool. He also suggests that insurers may be raising premiums to make up for low returns on their investment in “short term bonds, including Treasuries (either in absolute terms or relative to expectations).”

Wisconsin Seeks To Minimize Impact Of Medicaid Cuts By Taking Advantage Of The Health Law It Opposes

By Igor Volsky on Oct 3, 2011 at 3:10 pm

Last week, Wisconsin health officials unveiled a Medicaid reform plan that “would tighten eligibility requirements” and lead to thousands of residents to either lose access to the state’s Medicaid program or receive reduced coverage. Health Secretary Dennis Smith attributed the proposed cuts to “rising costs driven by an explosion in Medicaid participation in the past two decades and dwindling federal funding” and promptly asked the Obama administration for help.

As part of its reform package, Wisconsin submitted two waiver requests to the federal government that would allow the state to push some families with an offer of employer coverage off the rolls and require “young adults between the ages of 19 and 26 to join their parents’ insurance plans“:

If the federal government doesn’t grant the waiver before the end of the year, the state budget would bar adults who make more than 133 percent of the federal poverty level, or $24,645 for a family of three, from participating in BadgerCare Plus Core and BadgerCare Plus, which makes all uninsured children eligible for Medicaid. That would push 53,161 people out of both programs, according to DHS documents. The cutoff now is 200 percent of the poverty level, or $37,060 for a family of three.

Of course, young adults are only be able to join their parents’ policies thanks to a provision in the Affordable Care Act, which the state is challenging in court and has undermined at every turn. Now, Wisconsin officials are seeking to take advantage of the law in order to soften the cuts to their Medicaid program.

If they look deeper into the measure — and move beyond their rhetoric about government takeover and one-size-fits-all — they may even discover that they can solve their “dwindling federal funding” problem by accepting health reform’s grants and the additional dollars that will come with Medicaid expansion.

Justice

The Affordable Care Act Case Is Probably Only The Second Most Important Health Care Case This SCOTUS Term

By Ian Millhiser posted from ThinkProgress Justice on Oct 3, 2011 at 1:49 pm

The Supreme Court is very unlikely to strike down the Affordable Care Act. Several of the most conservative justices have joined or authored opinions that are wholly inconsistent with meritless arguments against health reform. And, while the Roberts Court shows no lack of enthusiasm for cutting back people’s rights, they typically do not do so through sweeping, headline-earning constitutional decisions.

Instead, the Supreme Court’s conservatives typically push their agenda through the kind of hypertechnical procedural cases that rarely receive much attention, but which can leave millions of Americans defenseless against powerful corporations or overreaching states. The single most important case last Supreme Court term, for example, wasn’t the high-profile funeral protest or violent video games cases. It wasn’t even the decision immunizing Walmart from a massive class action. No, it was a lawsuit alleging that a cell phone company cheated its customers out of a mere $30. The Supreme Court took that $30 trick, and used it to effectively eliminate all class action lawsuits brought by workers or consumers against wealthy and well-lawyered corporations. Moreover, this decision built upon a long line of decisions enabling corporations to force ordinary Americans into privatized corporate-owned arbitration system that overwhelmingly favors corporate parties.

There are, of course, exceptions to this rule, such as the egregious Citizens United case, but the Roberts Court typically operates by creating opaque procedural barriers that shield the wealthy and the well-connected from lawsuits — they are much less prone to make substantive changes to constitutional law.

Which is why Court watchers wondering if the justices will cut back on Americans’ access to health care should pay less attention to the Affordable Care Act case and much more attention to a low-profile argument that will be held today. The specific legal issue at stake in Douglas v. Independent Living Center would even confuse most lawyers, but the short of it is this:

The federal government frequently enters into partnerships with the states where the feds where the state agrees to set up a program to help its citizens and the feds agree to put up much of the money necessary to keep this program running. Medicaid, the low-income health care program, is the largest and most well-known example of this kind of federal/state partnership. When a state agrees to participate in Medicaid, they must also agree to comply with the network of federal laws governing the Medicaid program, including a requirement that the state’s Medicaid program pays health providers enough to “ensure that enough providers will participate in the Medicaid program so that patients will have meaningful health care access.” Like any law, however, this requirement means nothing if it can’t actually be enforced.

About a decade ago, the Supreme Court started making it harder for private parties to hold states accountable in court if the state doesn’t comply with Medicaid and other federal laws. Douglas will likely complete this process, effectively making it impossible for individuals to sue states that fail to provide adequate access to health care.

If this happens, the short term effect will be that only the Obama Administration will have the power to enforce key provisions of the Medicaid law — and patients and health providers will just have to trust that Obama’s team does an adequate job of enforcing the law. That may not seem so bad, but what happens if the Obama Administration gets replaced with the Perry Administration or the Palin Administration or the Ryan Administration or some other administration that is actively hostile to enforcing the Medicaid laws? If a future Administration shows no interest in enforcing the Medicaid statute, then entire provisions of law could effectively cease to exist until a more progressive president is elected.

This is why Douglas will probably be the most important health care case argued this term. It is exactly the kind of case that the Roberts Court tends to use to keep individuals out of court, it could lead to millions of Americans losing access to Medicaid at some point in the future, and it will do so in such a complex and hypertechnical way that few people will notice when it happens.

NEWS FLASH

Medicaid Is The Largest Source Of Coverage For People With HIV | “Medicaid is estimated to be the single largest source of coverage for people with HIV in the U.S., and to account for more than half of all spending on HIV care by the federal government (including the state share of Medicaid spending),” a new Kaiser Family Foundation study concludes. Medicaid enrollees with HIV “represent just a small fraction of the Medicaid population, they account for almost half of people with HIV in regular care in the United States” and differ from their counterparts without the disease particularly in their “heavy reliance on prescription drugs.” The report pinpoints some of the challenges and opportunities policy makers will face as the work to expand Medicaid as part of the Affordable Care Act and ensure that the program serves the needs of the new HIV-positive beneficiaries.

Justice

Romney: I Would ‘Absolutely’ Support State Constitutional Amendment To Define Life As Beginning At Conception

By Alex Seitz-Wald posted from ThinkProgress Justice on Oct 3, 2011 at 11:47 am

Former Massachusetts Gov. Mitt Romney (R) told Fox News host Mike Huckabee this weekend that he would support an amendment to his state’s constitution to define life as beginning at conception, which would outlaw abortion and potentially many forms of contraception as well. Noting that the state supreme court forced the inclusion of abortion coverage in Romney’s universal health care law, the GOP presidential front-runner said the only way to undo the decision would be a constitutional amendment. Asked if he would support such a move, Romney replied, “absolutely”:

HUCKABEE: Would you have supported a constitutional amendment that would have established definition of life beginning of life at conception?

ROMNEY: Absolutely.

Watch it:

Constitutional amendments to define life as beginning at the moment of fertilization have been pushed in states across the country, and the radical anti-abortion group leading the effort, Personhood USA, is hoping to get proposals on the ballot in nearly half the states by 2012.

But laws that give legal rights to fertilized eggs go much farther than merely outlawing abortions. As ThinkProgress’ Marie Diamond noted, they could also have the effect of outlawing common forms of birth control, since contraceptives like the pill and IUDs can prevent fertilized egg from implanting in a woman’s uterus. Personhood amendments consider these types of birth control a form of abortion, and could potentially even treat them the same as homicide. If these amendments make terminating pregnancy a criminal act, they would also deter doctors from saving the lives of women with abnormal pregnancies because any doctor performing an abortion could risk prosecution.

Some of the Republican presidential field’s more radical candidates like Rep. Michele Bachmann (R-MN), Herman Cain, and Newt Gingrich have already voiced support for giving legal rights to unborn children, but it’s surprising coming from Romney considering that he was staunchly pro-choice for much of his political career.

“I will preserve and protect a woman’s right to choose,” Romney said in 2002, “I will not change any provisions of Massachusetts’ pro-choice laws.” Romney’s retroactive support for outlawing abortion via constitutional amendment, expressed to Huckabee, clearly seem to contradict his earlier vows to protect his state’s pro-choice laws.

But while Romney griped about the inclusion of abortion coverage in his health law, abortion rates actually fell 1.5 percent in the first year his plan went into effect, suggesting that the best way to lower abortion rates is by expanding coverage, not limiting access to contraception.

While Romney has so far eschewed Personhood USA, in a different portion of the Huckbee interview, he vowed to support federal restrictions on abortion.

Utah’s Republican Governor Calls For Expanding Exchanges, ‘Encouraging Individual Responsibility’

By Igor Volsky on Oct 3, 2011 at 10:39 am

Utah Gov. Gary Herbert (R) promoted his state’s health insurance exchange during a health reform summit on Friday, espousing many of the same principles that are part of the Affordable Care Act:

Herbert signaled a willingness to revisit tort reform and open Utah’s Health Insurance Exchange to large employers. The web portal is now reserved for small business owners and their employees.

But he left the brain-storming of next-generation reforms to panels of industry leaders. The governor set no deadline, asking only that panelists focus on payment reform, health information technology innovations and efforts to contain costs through promoting healthy lifestyles. Utah’s reforms focusing on expanding private insurance options for consumers have been painted as a foil to President Barack Obama’s signature overhaul. But they share the same goals and some of the means for achieving them.

Herbert will likely have to modify the Utah exchange to meet the requirements of the health care law, but the federal exchange regulations provide states with a good deal of flexibility to pursue what Herbert called “Utah solutions” — reforms which, incidentally, have extended coverage to fewer than 1 percent of Utah’s 400,000 uninsured. These “Utah solutions” sound a lot like Obama’s solutions: payment reform, health information technology innovations, efforts to contain costs through promoting healthy lifestyles, encouraging individual responsibility, fostering public-private partnerships, limiting government intervention, using taxpayer resources wisely, and, ensuring state-based solutions.

Herbert has different way of going about these reforms — for instance, he’s outsouricng a lot of the planning to the health care industry — but the goals are the same and that suggests that if Republicans give up their all-or-nothing approach to governing and show interest in solving some of the nation’s health care problems, Democrats and Republicans would be able to find more common solutions to expanding access and lowering costs than today’s political rhetoric would suggest.

Mitt Romney Pledges To Push For Federal Abortion Restrictions

By Igor Volsky on Oct 3, 2011 at 9:10 am

Mitt Romney tried to reassure conservatives of his pro-life credentials during an appearance on Fox News’ Huckabee Saturday night, presenting himself as a “pro-life” candidate who would prefer to “let the courts decide that states have the ability to make their own decisions in regards to abortion.” Romney also hinted that he would push for new federal restrictions to abortion access similar to the legislation being challenged in court in some states:

ROMNEY: I’d make sure that justices that go to the Supreme Court are justices that have a conviction to follow the law and not create the law from the bench. I would encourage legislation which provided to individuals the information they needed to make a choice, an informed choice about whether or not to have an abortion. My view is that the Supreme Court should reverse Roe v. Wade and send to the state the responsibility of deciding whether they’re going to have abortion legal in their state or not.

Watch it:

Romney’s support for federally-mandated counseling or waiting periods is troubling, particularly since Romney is a big proponent of states’ rights and during a recent debate claimed that he opposes President Obama’s health reform because it inserts a “bureaucrat between you and your doctor.”

As the Guttmacher Institute explains, while “every state requires that a patient consent before undergoing medical treatment” and provided adequate and appropriate information, some legislatures have enacted abortion counseling requirements that “run afoul of these principles by requiring information that is irrelevant or misleading.” For instance, in 2010, “Missouri amended an existing biased-counseling law to require providers to tell women that abortion ends ‘the life of a whole, separate, unique, living human being.” South Carolina provides materials “concerning the contribution that each parent makes to the genetic constitution of their biological child,” and doctors are currently challenging a new ultrasound law in North Carolina that requires a doctor to provide “an obstetric real-time view” of the fetus at least four hours before an abortion and before any anesthesia is given.

Thirty-four states require that women receive counseling before an abortion is performed, which creates hardships for women by requiring them to come back for multiple visits or wait for specified time periods in between appointments. Twenty-four of the 34 states also detail the information a woman must be provided, and 10 states have abortion-specific requirements generally following the established principles of informed consent. Six states currently mandate “that an abortion provider perform an ultrasound on each woman seeking an abortion, and require the provider to offer the woman the opportunity to view the image.”

During an appearance at a social conservative forum last month, Romney also pledged to restore and strengthen a Bush-era “conscience protection law” that would allow providers to deny women access to some forms of contraception.

Morning CheckUp: October 3, 2011

By Igor Volsky on Oct 3, 2011 at 7:00 am

SCOTUS kicks off term with Medicaid case: “The Supreme Court is dedicating the first case of its fall term Monday morning to hearing arguments over whether private parties have a right to sue states in order to block cuts in Medicaid rates.” [Modern Healthcare]

Virginia seeks SCOTUS review: “The Commonwealth has joined the fun, filing a petition for a writ of certiorari that asks the Supreme Court to review the Fourth Circuit decision holding that Virginia lacks Article III standing to challenge the ACA’s minimum essential coverage provision.” [ACA Litigation Blog]

Patients in high deductible plans have some control over health savings: A new study finds that “patients with health coverage that includes a high deductible and either a health savings account or a health reimbursement arrangement reduced their costs” by lowering use of name-brand medications, using less in-patient care and specialists.” [Medical News Today]

Smaller businesses see smaller premium increases: It sounds counterintuitive — since larger companies can often secure better deals than smaller ones — but according to Kaiser, smaller companies are investing more in high-deductible health plans and offer less generous coverage than plans at big companies. [NYT]

Drug shortages still a major problem: Drug shortages of such crucial medications as cancer chemotherapy agents, anesthetics, antibiotics, electrolytes needed for nutrient solutions mean a growing number of Americans aren’t getting the medications they need and drug companies and doctors are rationing the available medications in some cases. [NPR]

New Hampshire asks Obama to end Planned Parenthood funding: “A majority of the New Hampshire Executive Council is demanding that the Obama administration cancel a $1.1 million grant to Planned Parenthood that was awarded over the state’s objections. The council voted 3-2 in June to terminate a $1.8 million annual grant to Planned Parenthood of Northern New England over concerns about taxpayer funding for abortion. Earlier this month, the Department of Health and Human Services announced it would directly contract with the family-planning clinics.” [The Hill]

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