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SCOTUS Punts Major Attack On Medicaid In 5-4 Decision

Justice Anthony Kennedy

Last October, ThinkProgress observed that the Affordable Care Act case will probably only be the “second most important health care case this SCOTUS term.” Part of this assessment stemmed from the fact that the case against the ACA is so weak — a leading conservative judge said that it has no basis “in either the text of the Constitution or Supreme Court precedent” — that it is unlikely that the Court will do anything other than uphold that law. But this assessment was rooted as much in the potential harm that could emerge from a far less well-known case called Douglas v. Independent Living Center.

Fortunately, our assessment of Douglas was not correct. By a narrow 5-4 margin, the Supreme Court decided to put off until another day a complex legal issue that could render much of our Medicaid law unenforceable.

As we explained last October, Medicaid is the largest example of a federal/state partnership 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. 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.”

Beginning about a decade ago, however, the Court began making it harder for these laws to actually be enforced. Under this new line of cases, it became harder and harder for private individuals to actually enforce Medicaid and similar laws — only an action by the federal government itself could be used to ensure that states comply with the law. Douglas threatened to complete this process, making much of the law largely unenforceable by the people it is intended to protect.

The Court’s four conservatives joined a dissent indicating that they are ready to do exactly that. Justice Anthony Kennedy, however, broke with his fellow conservatives to punt this question until another day — ordering a lower court to consider whether a recent decision by a federal agency makes deciding the issue in the Douglas case unnecessary. In other words, today’s decision is largely a nothingburger.

Should the Court eventually adopt the dissenting justices’ view, the result would be that the availability of programs like Medicaid could swing wildly depending on who is in the White House. As we wrote in October:

[T]he 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.

Hopefully, today’s surprising vote by Justice Kennedy to punt this case means that he is not prepared to turn this prediction into a reality.

NEWS FLASH

Prominent Religious Leader: Obamacare Will Kill You | Richard Land, the prominent social conservative activist and Southern Baptist Convention official, told conservative radio host Lauara Ingraham today that the Affordable Care Act will kill you sooner and make your life worse in the meantime. Using the kind hyperbolic rhetoric typical of the law’s detractors, he said, “If Obamacare goes into effect, fully goes into effect, you will live a shorter life. And your children will live a shorter life. And it will be more filled with pain and suffering before you die.” Listen here:

NEWS FLASH

Virginia Senator Plans To Pull Invasive Ultrasound Bill | Just moments after the Virginia House passed an amended version, state Sen. Jill Holtzman Vogel (R) announced she will seek to strike her controversial “abortion informed consent” bill, rather than accept a watered-down version passed by the House of Delegates. Her original legislation would have required women to undergo unnecessary and invasive ultrasound procedures prior to obtaining abortions, but a House amendment weakened that requirement. The move comes on the heels of late night mockery, public protest, and Gov. Bob McDonnell’s (R) backtracking on his prior support of the measure. Vogel’s decision likely means that her bill won’t be considered this year.

Virginia Governor Backtracks, Offers Amendment To Ultrasound Bill

In a major victory for women’s health advocates, Gov. Bob McDonnell (R) has publicly backtracked from his support for a bill requiring women to undergo an invasive transvaginal ultrasound before having an abortion. In a statement released this afternoon, McDonnell offered an amendment that would not force women to receive the procedure. “Mandating an invasive procedure in order to give informed consent is not a proper role for the state,” McDonnell said:

I am requesting that the General Assembly amend this bill to explicitly state that no woman in Virginia will have to undergo a transvaginal ultrasound involuntarily. I am asking the General Assembly to state in this legislation that only a transabdominal, or external, ultrasound will be required to satisfy the requirements to determine gestational age. Should a doctor determine that another form of ultrasound may be necessary to provide the necessary images and information that will be an issue for the doctor and the patient. The government will have no role in that medical decision.

The state Senate has already passed the bill, and the House is expected to pass the ultrasound bill as soon as today. McDonnell has previously backed the bill, saying that “the concept that a woman should have all of the information possible before she makes a decision about terminating a pregnancy” and that he would sign the bill.

But the ultrasound bill is still unnecessary. Studies have shown that viewing an ultrasound does not change a woman’s mind before an abortion, and the Guttmacher Institute reports that requiring an abortion only adds to the cost of an abortion. “Since routine ultrasound is not considered medically necessary as a component of first-trimester abortion, the requirements appear to be a veiled attempt to personify the fetus and dissuade a woman from obtaining an abortion,” the group writes.

Update

The Virginia House passed the ultrasound bill today 65-32 with the governor’s substitute language that does not require the invasive transvaginal ultrasound.

Report: Lower-Wage Workers Losing Employer-Based Insurance At Higher Rate

Seventy-five percent of low-wage workers lack access to employer-provided healthcare coverage says a new study from the Center for Economic and Policy Research (CEPR), while nearly 40 percent have no health insurance whatsoever, private or public — up from 16 percent in 1979. The Health-insurance Coverage for Low-wage Workers, 1979-2010 Beyond report, which was authored in conjunction with the Georgetown University Kalmanovitz Initiative for Labor and the Working Poor, notes that over the past 30 years, employer-provided insurance has declined for all workers, but low-wage workers have been hit hardest. In 2010, only 26 percent had health insurance through their employer, while in 1979 the number was at a solid 43 percent.

Coverage through public insurance programs has been the only area where low-wage workers have experienced any improvement, with 10 percent gaining coverage through Medicaid, which is double 1979′s rate of 5 percent.

For the purposes of the study, low-wage workers are identified as people in the bottom 20 percent of hourly pay.

The report also estimates the future effects of the Affordable Care Act (ACA) on insurance rates for low-wage workers using outside projections and the experience of the Massachusetts state health system, which shares many similarities with the ACA. The report concludes that the full implementation of the ACA — particularly the expansion of the Medicaid program — will slice non-coverage rates for low-wage workers in half from nearly 40 percent to somewhere below 20 percent.

Fatima Najiy

Paul Ryan Berates Tim Geithner For Not Embracing GOP’s Medicare Privatization Scheme

If President Obama’s newly-proposed budget were to be enacted, its long-run projections show U.S. debt stabilizing as a percentage of GDP until approximately 2030, after which it begins to rise again indefinitely. Last Thursday, House Budget Committee Chairman Paul Ryan (R-WI) decided to take Treasury Secretary Tim Geithner to task over those numbers:

RYAN: Leaders are supposed to fix problems… Our government is making promises to Americans that it has no way of accounting for them. And so you’re saying, “Yeah, we’re stabilizing it but we’re not fixing it in the long run.” That means we’re just gonna keep lying to people. We’re going to keep all the empty promises going.

The most important thing to remember about the debt increase from 2030 onward is that it’s driven almost entirely by health care costs:

Some of this is the retirement of the baby boomers, and the resulting increase in retirees as a share of the population. Though Social Security is also effected by this, and its per year expenditures stabilize after a few decades at 6 percent of GDP. Some of this is also technological advancement, which just naturally makes health care more expensive as it’s able to do more things. Every advanced country’s health care is rising as a percent of GDP, but none are as high or rising nearly as quickly as the U.S. The fundamental problem is the cost of health care in America is rising at a much faster rate than overall economic output. And that’s the costs for everyone: Individuals, private insurers, and government alike. As a result, the amount of money the government is scheduled to spend each year on health care, the lion’s share of which goes to Medicare, is predicted to grow indefinitely as a percentage of GDP. Simply put, the thing Medicare buys is becoming ever more expensive, so Medicare’s budget is becoming ever larger.

There are two ways to solve this. One, the government can simply buy less health care over time — and by extension leave every American who has relied on that support to find some other way to make up the difference. That’s what Ryan and the Republicans did in their 2011 budget which passed the House last April. Ryan’s budget would’ve transformed Medicare into an exchange providing private insurance plans, with premium support to help seniors buy those plans. Ryan and the Republicans would then have slashed that support so drastically that by 2030 the typical 65-year-old would be paying 68 percent of their health care costs, according to the CBO. Absent those changes to Medicare, that amount would not rise above 30 percent. Ryan’s budget also called for severe cuts to Medicaid and discretionary spending, two-thirds of which would’ve fallen on the shoulders of America’s poorest and most vulnerable citizens. Read more

NEWS FLASH

GOP: Women’s Testimony At Contracpetion Hearing Won’t Be Televised | The Republican-controlled Committee on House Administration has denied a request to broadcast the testimony of Georgetown University Law student Sandra Fluke on the health reform law’s mandated coverage of contraceptives at a Democratic Steering and Policy Committee event. The event was organized by House Democratic Leader Nancy Pelosi (D-CA) in a bid to allow Fluke a second opportunity to speak on the issue after the young woman was barred from the all-male panel by Committee Chairman Rep. Darrell Issa (R-CA) at last week’s House Oversight and Govenrment Reform Committee hearing. According to Pelosi’s office, this will be the first event in which the House recording studio has not covered an event. — Fatima Najiy

Virginia Governor Backs Off ‘State-Sponsored Rape’ Ultrasound Bill, Promises To ‘Review’ Measure

A depiction of the procedure

A bill requiring women to undergo an invasive ultrasound before having an abortion has already sailed through the Virginia Senate, and was to be signed into law by Gov. Bob McDonnell (R) once it cleared the House. Under the proposed policy, most women seeking seeking an abortion will be forced to have a transvaginal procedure, in which a probe is inserted into the vagina, and then moved around until an ultrasound image is produced.”

But now McDonnell is backing away from his previous wholehearted support of the measure. Earlier, he told ABC News he supports “the concept that a woman should have all of the information possible before she makes a decision about terminating a pregnancy.” Now, his office has clarified that he will “review” the bill if it passes the General Assembly:

“Our position is: If the General Assembly passes this bill the governor will review it, in its final form, at that time,” McDonnell spokesman Tucker Martin said in a statement. He declined to explain the change in approach, but Virginia’s governors can sign, veto or amend legislation.

The House and Senate have approved their versions of the bill. On Tuesday, the House postponed a final vote on the legislation…for the second day in a row. [...]

The officials with knowledge of Tuesday night’s Republican meeting said GOP leaders hope to introduce amendments on Wednesday, but it is unclear whether the rank and file would support them.

Virginians opposed to the ultrasound bill held a silent protest on Tuesday. Wearing stickers that said, “Say No to State-Mandated Rape” and “Private Property: Keep Out,” several hundred demonstrators locked arms outside of the Capitol. And a new poll shows that a majority in the state oppose the requirement, which has been spoofed by NBC’s Saturday Night Live and mocked on The Daily Show. “This is like a TSA pat-down inside their vagina,” Jon Stewart explained, contrasting McDonnell’s support for this measure and his opposition to TSA pat-downs.

But while Virginia’s governor is backing away from the invasive bill, legislators in Alabama and Pennsylvania are considering the same ultrasound policy. Even though studies show that viewing an ultrasound does not change a woman’s mind about having an abortion, Pennsylvania Rep. Marcy Toepel (R) argued that “Getting an ultrasound is a good thing for pregnant women.”

Seven states already mandate that an abortion provider perform an ultrasound on women seeking abortions and provide women an opportunity to view the image. In Virginia’s proposed law, a woman would have to sign a statement and have the ultrasound image added to her medical records if she refuses to view it.

Update

This morning, a coalition of grassroots organizations supporting women’s health delivered 33,030 signed petitions to McDonnell from people who oppose the ultrasound bill and other anti-abortion measures. “Our message today is clear: stop the attacks on women’s health. Stop interfering in personal, private medical decisions. [...] Get back to work,” said Anna Scholl, executive director of ProgressVA, one of the groups that helped organize the petition drive.

Democratic Lawmaker Responds To ‘Fetal Pain’ Bill With Measure Limiting Vasectomies

A Democratic lawmaker in Georgia is responding to a Republican-backed effort to prevent women from receiving abortions 20 weeks after fertilization with a tongue-in-cheek measure that seeks to limit men’s health care choices: legislation that “would limit vasectomies only to men who will die or suffer dangerous health problems without one.” “Thousands of children are deprived of birth in this state every year because of the lack of state regulation over vasectomies,” said Rep. Yasmin Neal (D) explained. “It is patently unfair that men can avoid unwanted fatherhood by presuming that their judgment over such matters is more valid than the judgment of the General Assembly, while women’s ability to decide is constantly up for debate throughout the United States.”

The anti-abortion bill (HB 954), offered by Rep. Doug McKil­lip (R), “would effectively outlaw abortion 20 weeks after an egg is fertilized, the point where the lawmaker said fetuses can feel pain,” but would allow for exceptions in cases where a pregnancy threatens the life or health of the women. The bill also does not include exemptions for rape or incest and stipulates that doctors “performing abortions without the justifications the bill requires would be subject to a prison sentence of one to 10 years.”

Fourteen states have imposed prohibitions on abortions after a certain number of weeks, generally 24, and 6 of these states ban abortion at 20 weeks on the grounds that the fetus can feel pain at that point in gestation — a claim disputed by doctors:

Doctors’ groups and other experts testified during a committee hearing that establishing a 20-week rule could force prospective parents to make a decision on ending pregnancies before having all the information available from genetic tests that can reveal whether a fetus has severe physical problems.

“People could be making decisions on information that is not definitive,” said Dan Wies­man, a certified genetic counselor at Emory Health­care.

The concept of “fetal pain” is widely panned by many in the medical field, with the Journal of the American Medical Association determining that “pain perception probably does not function before the third trimester.” So discredited is the concept of fetal pain that even a Kansas Republican slammed the “false research,” adding “I would be embarrassed to be a state that bases its laws on untruths.”

Under current Georgia law, women can have abortions until 26 weeks after fertilization. Beyond that point, the procedure can only be performed “if three physicians agree that the woman needs it for medical reasons that can include mental health issues.”

“The Republican attack on women’s reproductive rights is unconscionable. What is more deplorable is the hypocrisy of HB 954’s author,” House Democratic Leader Stacey Abrams (D) said. “If we follow his logic, we believe it is the obligation of this General Assembly to assert an equally invasive state interest in the reproductive habits of men and substitute the will of the government over the will of adult men.”

Morning CheckUp: February 22, 2012

Romney to broaden Medicare reform plan on Friday: “Mitt Romney, facing a tough fight before Michigan’s Feb. 28 primary, said he’ll further outline his plan to lower taxes, reduce spending and protect Medicare and Social Security in Detroit this week. Speaking before more than 400 people at a snowy campaign stop in Shelby Township, Romney said he’ll offer more specifics on his vision in the coming days, including at his scheduled address to the Detroit Economic Club at Ford Field Friday.” [Detroit News]

Administration releases co-op loans: “Seven organizations will receive a total of $639 million in federal low-interest loans to launch new, consumer-governed health insurance plans in eight states, the federal government announced Tuesday.” [Kaiser Health News]

Feds ease drug shortage: “Federal regulators said Tuesday that they’ve approved new suppliers for two crucial cancer drugs, easing critical shortages — at least for the time being — that have left patients and parents frightened about missing life-saving treatments. The news brings a light at the end of the tunnel for some patients, but not for thousands of others, given that there are currently 283 separate drugs in short supply or totally unavailable in this country.” [AP]

Democrats to hold their own birth control hearing: “Democrats will hold their own hearing this week on contraception, with only one witness — the woman who wasn’t allowed to testify before the House Oversight committee last week. House Minority Leader Nancy Pelosi (D-CA) announced the event, her party’s latest effort to capitalize on the controversy surrounding last week’s hearing. Images of its all-male witness panel spread quickly online, helping Democrats frame the issue on their terms.” [The Hill]

Illinois advances anti-abortion measure: ” Illinois women who want to get abortions might be required to either view an ultrasound before the procedure or decline to do so in writing, under proposals that passed an Illinois House committee Tuesday. The two measures call for more regulations on centers that perform abortions — including requiring doctors to ask if the patient wants to see an ultrasound and additional building regulations on the actual clinics — were passed overwhelmingly in the Agricultural Committee.” [AP]

New Hampshire bill allows providers to object: “The House Judiciary Committee is backing legislation that would let New Hampshire health care providers refuse to provide certain services if they have religious, moral, ethical or philosophical objections to them.” [AP]

Virginia delays ultrasound vote: “Lawmakers in Virginia put off a final vote Tuesday on a highly contested bill that would require women in the eastern US state to undergo a transvaginal ultrasound prior to an abortion….But a day after 1,000 protesters descended on the state capitol in Richmond, the House of Delegates held off on third and final reading of the legislation, leaving open the possibility it might yet be amended or dropped altogether.” [AFP]

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