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The Affordable Care Act Scores Another Appeals Court Victory

Before anyone is allowed to challenge a law in federal court, they have to show that they have been injured in some way by the law — a requirement known as “standing.” To date, the overwhelming majority of courts to hear challenges to the Affordable Care Act have dismissed those cases because the plaintiffs lacked standing or because of other procedural flaws with their case. Recently, the United States Court of Appeals for the Third Circuit added itself to this list:

[A]ppellants’ complaint here is “barren” with respect to standing: appellants have provided no information about themselves beyond the fact that they are New Jersey residents and believe that the Act is unconstitutional. These allegations are insufficient to establish standing.

To be sure, these standing cases are unlikely to wipe out the ACA litigation entirely as it moves forward towards the Supreme Court — the lower courts have largely agreed that ACA plaintiffs can overcoming this standing problem if they simply put in their complaint that they are currently arranging their finances in order to pay for health insurance when the law goes into effect in 2014. But it is not at all unlikely that one or more justices could conclude that they lack jurisdiction to hear the ACA cases while the law is not in effect.

The Fourth Circuit recently held that it lacks jurisdiction to review the ACA because of a law known as the Tax Anti-Injunction Act, which prevents a court from stopping the government from collecting a tax, including the taxes in the Affordable Care Act — although a plaintiff may sue to get the money back after the tax is collected. At least one conservative member of the DC Circuit also expressed sympathy with this claim at a recent oral argument.

The Supreme Court’s conservatives have historically been very sympathetic to arguments that their jurisdiction is limited, and if just one of them decided either that the plaintiffs in this case lack standing or that the Tax Anti-Injunction Act applies, then there will be no way for the ACA’s opponents to assemble the five votes they need to win this case.

As Top Restaurant Industry Lobbyist, Herman Cain Partnered With Big Tobacco To Promote Indoor Smoking

Herman Cain might be known best as the former CEO of Godfathers Pizza, but he served an equally substantial role as a lobbyist for the restaurant and fast food industry. As reporter Mike Elk notes at In These Times magazine, Cain, as head of the National Restaurant Association (NRA) in the ’90s, led an aggressive campaign to stop a hike in the minimum wage; and was successful in exempting servers from being included in the 1996 minimum wage law. Although Cain avoids explicitly calling attention to his role as a lobbyist on the campaign trail, he does cite his work as a restaurant association representative in fighting against President Clinton’s health reform plan as his most formative political experience.

As a lobbyist for the NRA, Cain represented a trade association for McDonalds, Burger King, and other fast food establishments. But a little known history, uncovered by ThinkProgress using the University of California, San Francisco archives, shows that Cain also lobbied on behalf of tobacco industry giants like R.J. Reynolds and Phillip Morris.

Documents reveals a long partnership between Herman Cain, then-head of the National Restaurant Association, and the tobacco industry. Above, one of the many Cain-related meeting notes from R.J. Reynolds.

Cain met frequently with representatives of R.J. Reynolds and other cigarette companies to find areas of mutual concern. In 1993, when President Clinton proposed a health care overhaul, the expansion of coverage included a cigarette tax and a requirement for many businesses to cover their employees. The tobacco industry reached out to form an alliance against the Clinton plan, and Cain obliged given the fast food industry’s opposition to the so-called “employer mandate.” A fax, sent from the tobacco industry’s public relations firm Burson-Marsteller on July 13, 1994, proposes a positive article about Cain’s “BITE BACK” campaign against health reform and smoking bans.

As Cain rose through the ranks of the National Restaurant Association to become its CEO, his bond with tobacco giants continued. In 1997, R.J. Reynolds executive David Fishel filed a memo about a meeting between Cain and tobacco lobbyists shortly after Cain became the NRA CEO. “Cain gave every indication that the NRA and RJR have the same views with regard to excessive government regulations and the importance of letting restaurateurs determine their own smoking policies,” Fishel wrote. R.J. Reynolds and other tobacco giants were at the time engaged in a massive lobbying effort to crush local, state, and federal efforts to regulate smoking in restaurants and other places of public concern.

The relationship blossomed. At one point, Cain even signed up to help out with an international pro-tobacco publicity tour.

Blurring the lines between restaurant industry caretaker and tobacco company representative, Cain accepted hefty donations from tobacco corporations. Cain worked to snuff out a Senate bill that would have reigned in smoking at restaurants and other facilities around the country. The lobbying drive, which defeated the bill in 1998, occured just after the NRA started to see money coming in from tobacco firms.

As Cain gained political connections in the lobbying world, he let some of his associates in on his dream of becoming president. “What IS a little interesting,” remarked tobacco lobbyist Rob Meyne in a January 22, 1999 e-mail to his colleagues, “is that Cain has informed key NRA leaders … that he is, in fact, going to run for President.” Meyne mused that Cain probably couldn’t win, but could make some type of impact. Cain would be a positive addition to the Republican field because he is “good on our issues,” added Meyne.

NEWS FLASH

Health Insurers Fight To Hide Rate Increases From The Public | Health insurance companies planning sharp increases in premiums for their New York customers have submitted memos justifying their rate increases to state officials. However, they are fighting to keep those memos from the public, saying they contain trade secrets and that consumers wouldn’t be able to understand them. Benjamin Lawsky, the state superintendent of financial services, has ordered the documents be made public. If the companies fail to obtain a court injunction the documents will be public by late November, making New York the 13th state to post insurers justifications for rate hikes online.

Karl Singer

Gingrich On Prostate Screening: Heeding Science Is ‘Going To Kill People’

Newt Gingrich reignited the “death panels” meme during Tuesday night’s GOP presidential debate in New Hampshire, arguing that the U.S. Preventive Services Task Force’s draft recommendation that men shouldn’t be routinely tested for prostate cancer was “going to kill people.” The panel found that the test does more harm than good, noting that “The common perception that early detection prolongs lives is not supported by the scientific evidence.” Gingrich disagreed:

GINGRICH: I am really glad you asked that, because I was just swapping e-mails today with Andy von Eschenbach, who was the head of the National Cancer Institute, the head of the Food & Drug Administration. But before that, he was the provost M.D. Anderson, the largest cancer treatment center in the world.

And he wrote me to point out that the most recent U.S. government intervention on whether or not to have prostate testing is basically going to kill people. So, if you ask me, do I want some Washington bureaucrat to create a class action decision which affects every American’s last two years of life, not ever.

I think it is a disaster. I think, candidly, Governor Palin got attacked unfairly for describing what would, in effect, be death panels.

And what Von Eschenbach will tell you if you call him is, the decision to suggest that we not test men with PSA will mean that a number of people who do not have — who are susceptible to a very rapid prostate cancer will die unnecessarily. And there was not a single urologist, not a single specialist on the board that looked at it. So, I am opposed to class intervention for these things.

Watch it:

Some doctors like Von Eschenbach may disagree with the panel’s recommendations, but the scientific evidence demonstrates that the risk of additional testing and treatments — like biopsy, surgery, and radiation — outweighs the benefits of early detection. Part of the problem, the science concludes, is that the PSA doesn’t actually detect prostate cancer, but rather “reveals how much of the prostate antigen a man has in his blood,” so it triggers additional testing. Nor does it “distinguish between the two types of prostate cancer — the one that will kill you and the one that won’t.” And so the panel concluded that for healthy men who have no other symptoms of prostate cancer, the cancer grows slowly and they end up dying of something else without ever knowing about the disease and avoiding the cascade of treatments and complications that come with diagnosis. For instance, according to the task force, “one million men received surgery, radiation or both as a result of a PSA test from 1986 to 2005,” but about about 0.5 percent of those who received surgery after a PSA test died within 30 days. The treatment also “significantly increased risks for incontinence, impotence and other health problems.”

As Jonathan Cohn observes, ultimately, this is an intensely personal decision. “Do you want to have a test for a cancer that might not be lethal and that might lead you to treatment that could harm or even kill you? Not every patient will answer that question the same way. Not every doctor will either.” This panel or the Affordable Care Act won’t make that decision for you — “nobody is going to stop physicians from giving the test. Nobody is going to stop patients from getting the test. Nobody is going to stop insurers from paying for the test.”

The government will consider the panel’s recommendations when forming the basic benefit packages that insurers will offer beginning in 2014. But its science-based conclusions are just one factor in a complicated process that will certainly take into account the opinions and expertise of doctors like Von Eschenbach and consumer groups that disagree. The Prevention Task Force considered the science and efficacy behind the PSA test, which is a good starting point for making any kind of medical decision.

Update

Kaiser Health News looks into Von Eschenbach: “He is listed as a “senior advisor” for Gingrich’s think tank, the Center for Health Transformation. He is listed as a senior fellow with the Milken Institute, whose founder, Michael Milken, credits the blood test for saving his life.”

House GOP Proposes So-Called ‘Let Women Die’ Bill That Lets Hospitals Deny Life-Saving Care

In their latest assault on women’s health, this week House Republicans will take up HR 358, the ironically titled “Protect Life Act.” Opponents have rechristened the measure the “Let Women Die” bill because it would allow hospitals that receive federal funds to turn away a woman seeking an abortion in all circumstances, even if an abortion is necessary to save her life:

The House is scheduled to vote this week on a new bill that would allow federally-funded hospitals that oppose abortions to refuse to perform the procedure, even in cases where a woman would die without it.

Under current law, every hospital that receives Medicare or Medicaid money is legally required to provide emergency care to any patient in need, regardless of his or her financial situation. If a hospital is unable to provide what the patient needs — including a life-saving abortion — it has to transfer the patient to a hospital that can.

Under H.R. 358, dubbed the “Protect Life Act” and sponsored by Rep. Joe Pitts (R-Pa.), hospitals that don’t want to provide abortions could refuse to do so, even for a pregnant woman with a life-threatening complication that requires a doctor terminate her pregnancy. This provision would apply to the more than 600 Catholic hospitals governed by the Catholic Health Association, which are regulated by bishops and prohibited from performing abortions.

The bill also prohibits federal funds from going to health care plans that cover any abortion services, which might prompt insurers to stop covering abortions. That outcome would disproportionately impact poor women who can’t afford to pay for abortions out of pocket.

Even though the 30-year-old Hyde Amendment already bans taxpayer dollars from being spent on abortions, and numerous “conscience clauses” allow doctors and health care professionals to refuse to perform them, Republicans have insisted that more stringent measures are necessary to ensure, in the words of Majority Leader Eric Cantor (R-VA), “that no taxpayer dollars flow to health care plans that cover abortion and no health care worker has to participate in abortions against their will.”

Because of its far-reaching consequences for religiously-affiliated hospitals, the bill raises serious questions about the legality of allowing religious figures to determine medical policy for organizations that receive federal money to provide health services for all citizens. “Unfortunately in the Catholic system, someone who’s a bishop, who has no medical qualifications whatsoever, can dictate what a hospital does,” said Jon O’Brien, president of Catholics for Choice.

Further demonstrating that their “pro-life” moniker is a sham, earlier this year Congress tried to prevent doctors from learning how to perform life-saving abortion procedures that are often necessary when women have incomplete miscarriages.

NEWS FLASH

Holtz-Eakin Discovers That Taking Away Health Benefits Can Save The Government Money | Former McCain campaign adviser and CBO chief Douglas Holtz-Eakin is out with a new report arguing that taking away health care benefits from middle class Americans — i.e. delaying the implementation of the Affordable Care Act — would save money that could then be used to reduce the national deficit. A two-year delay would yield $176 billion in savings over the next 10 years and a four-year freeze would mean $308 billion saved, they say. All this is a matter of priorities and if one wants to balance the budget by undermining a law that will help millions find affordable health insurance, then I suppose that’s the way to do it. I would argue, however, that a much more constructive way would be to offer better cost containment ideas — like speeding up the delivery reforms –that could help reduce spending. Delaying coverage expansion isn’t fixing anything. It’s only kicking the health can down the road.

Romney Called Ted Kennedy A ‘Parent’ Of Romneycare In 2006

David Corn points to this video of Mitt Romney effusively praising the late Sen. Ted Kennedy for helping secure federal funding for Massachusetts’ health care reform law at its signing ceremony in 2006, even going so far as to call him a “parent” of reform. It’s “probably not what Romney wants GOP primary voters to have in mind when they enter a polling place or caucus meeting,” but it is a video Democrats will likely point to if Romney is the eventual nominee:

Also recall that Kennedy initially opposed the law’s central tenet — a requirement that everyone purchase health insurance. The mandate originated as a Republican idea and was heavily promoted by Romney as a “conservative solution” that would force people to take “personal responsibility” for the cost of coverage. As Kennedy explained in December 2005, “I’ve never been one for individual mandates in the past, but I do think that the way this has been proposed, in that everybody will do their part, that’s a compromise. I can buy into that.”

Romney Would Try To Repeal Health Law Through A Process He Opposed

Former Massachusetts Gov. Mitt Romney doubled down on his pledge to repeal the Affordable Care Act during last night’s Republican presidential debate, pledging to eliminate the entire law through the reconciliation process, a special procedure that allows the Senate to bypass the filibuster and pass spending bills with 51, instead of 60 votes. After relying on the process to pass President Bush’s tax cuts for the rich, Republicans attacked Democrats’ efforts to pass a small bill of health care “fixes” in 2010 by claiming that it undermined the democratic system, but have now had another change of heart.

“We have to repeal Obamacare and I will do that on day two with a reconciliation bill because, as you know, it was passed through reconciliation, 51 votes, we can get rid of it with 51 votes,” Romney claimed at last night’s event. “We have to get rid of Obamacare and return to the states the responsibility.” Jon Huntsman and Rick Santorum immediately challenged Romney’s proposal, correctly noting that the rules of the reconciliation process would exclude key provisions of the law like the individual mandate and exchanges that don’t directly affect spending:

HUNTSMAN: It’s disingenuous to — to just say that you can — you can waive it all away. The mandate will be in place. The IRS is already planning on 19,500 new employees to administer that mandate. That will stay, and that’s the ruinous part of — of Obamacare. And that — Mitt, your plan is not going to do anything.

ROMNEY: I said we had to repeal it. Did you miss that?

HUNTSMAN: No. It doesn’t — it doesn’t repeal the mandate.

ROMNEY: No, no, I said I’m going to repeal it through reconciliation.

SANTORUM: Through reconciliation, you can repeal the taxes, you can repeal the spending, and therefore, the mandate has no teeth, because there’s no tax penalty if you don’t enforce it.

Watch it:

Romney seemed unaware of the technicalities of reconciliation and unfamiliar with its history in health care reform. Democrats passed the House and Senate versions of the Affordable Care Act through regular order in late 2009, but didn’t have the votes to approve a merged bill after losing Ted Kennedy’s seat to Sen. Scott Brown’s (R-MA). As a result, the House agreed to pass the Senate version after assurances from Harry Reid that the Senate would use the reconciliation process to make small spending changes to the bill sought by House Democrats.

Republicans described the process as a “convoluted legislative charade” and claimed that it is “an extraordinary and unprecedented abuse” that is “not good democracy.”

In fact, even Romney directly criticized the process he’s now endorsing. During a television swoop on the day of the Massachusetts special election — Jan. 19, 2010 — Romney accused Democrats of “playing fast and loose in Washington.” “[T]here’s kind of a neo-monarchy, if you will, where they don’t have to listen to the American people, they know what’s better for the American people than the people know themselves, and they’re going to push through their health-care plan and their cap-and-trade plan and their spending plan,” Romney said during an appearance on Fox & Friends. After Brown’s victory, Romney told Sean Hannity, “Well, I’d be surprised if the Democrats have already been talking what they would do if Scott Brown became elected, how they would get their health care through despite the will of the people. If they play the kind of shenanigans you described I think it’s going to show the kind of arrogance which has lead to Scott Brown’s victory tonight, in part.”

Morning CheckUp: October 12, 2011

GOP candidates lied about health law in Bloomberg debate: Mitt Romney, Rick Perry and Michele Bachmann claimed that the health law would increase the deficit, ration care, and bankrupt Medicare in a debate last night in New Hampshire. [Bloomberg]

Romney went after Perrycare: “I’m proud of the fact that we took on a major problem in my state,” Romney said. “We have the lowest number of kids uninsured of any state in America, you have the highest.” “We have less than 1 percent of our kids who are uninsured. You have a million kids.” [Politico]

Dems ask super committee to leave Medicare alone: “The top Democrat on the Energy and Commerce panel wants the deficit-cutting supercommittee to leave Medicare and Medicaid untouched and instead save money by extending drug rebates, according to a draft letter obtained by The Hill. The draft letter from Rep. Henry Waxman (D-Calif.) is being circulated among Democrats to get their input and has yet to be formally sent.” [Healthwatch]

Health insurers chase high ratings: “Three Boston-area health insurers are in a race for a decisive competitive advantage. They’re not seeking the usual industry plaudits, exclusive deals with high-profile medical providers, or splashy marketing campaigns. They’re after the highest mark on Medicare’s quality exam, a one-to-five star rating system that was an afterthought until the 2010 health law tied it to big cash bonuses. ” [Kaiser Health News]

Health reform in a comic book: Do you like comic books with CBO scores, two-headed alligators and health economist superheroes? Then has Jonathan Gruber got a graphic novel for you! [Sarah Kliff]

HHS boosts nursing: Secretary Kathleen Sebelius has “announced $82 million in awards to help bolster the country’s nursing workforce. Administered by HHS’ Health Resources and Services Administration (HRSA), the awards will provide financial support to nurses and nursing students in exchange for service at health care facilities with a shortage of nurses.” [HHS]

Abortion debate makes a comeback: “After months of focusing on economic rather than social issues, the House this week is poised to take up a measure that will bring the abortion-rights debate back to the floor for the first time since May.” [Washington Post]

Republicans will consider the so-called ‘Protect Life Act’: It “would allow federally-funded hospitals that oppose abortions to refuse to perform the procedure, even in cases where a woman would die without it.” [Huffington Post]

Electronic health records can help elderly patients: “Researchers at Beth Israel Deaconess Medical Center found that primary care doctors could improve preventive care for elderly patients by creating reminders in their electronic records system.” [Boston Globe]

Arkansas still considering exchanges: “Arkansas insurance officials held a summit Tuesday to discuss how to set up an insurance exchange required under the federal health care overhaul, prompting complaints from Republican legislators who have objected to the state seeking funds for the program.” [Forbes]

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