Bob Schwartz

Tag: Affordable Care Act

Hobby Lobby and Peyote

Peyote

Peyote is at the heart of today’s Supreme Court decision in the Hobby Lobby case.

Hobby Lobby does not sell peyote. When Hobby Lobby attends church, its religious practices don’t include eating peyote. Its Christian beliefs do include opposition to certain forms of contraception, and therefore it opposed having to provide health insurance under ACA that includes such contraception.

Hobby Lobby’s objections reached the Supreme Court. In today’s 5-4 decision, the Court found that the entity that is Hobby Lobby has a claim to religious freedom from that requirement, grounded in the First Amendment and in the Religious Freedom Restoration Act of 1993 (RFRA). And that is where peyote comes in.

This begins with the case of Employment Division, Department of Human Resources of Oregon vs. Smith (1990). Two employees of the State of Oregon were members of the Native American Church, and ingested peyote as a sacrament. They failed a drug test and were fired. The Supreme Court found that despite their claim of religious freedom, Oregon had the right to terminate them.

In response to this and other decisions, activists from the left and right, religiously and politically, came together to push for a legislative remedy. How universal was support for a fix? The House vote for RFRA was unanimous, the Senate 97-3, and President Clinton signed it.

More than twenty years later, what hath God and Congress and the Court wrought? Characterizing this new allowance for religious exceptions to laws as narrow seems wishful, hopeful, or just plain wrongheaded. There will be more attempts than before to see just how big this hole is and what sort of company policy vehicle can be driven through it on the basis of religious freedom.

Quite possibly, the next big test will be to see exactly what closely held companies that have religious objections will be permitted to do about homosexual employees. We have no federal law on employment discrimination against gay people, and in a country where we can’t even pass equal-pay for equal-work for women legislation, that isn’t likely any time soon.

God apparently doesn’t endorse IUDs but approves of peyote. His judgment on Hobby Lobby and the Supreme Court is still out.

The Torah and the Supreme Court: Tazria and Scalia

Women of the Supreme Court

This week the portion of the Torah read in Jewish communities is Tazria (Leviticus 12:1–13:59). This week the Supreme Court heard arguments in the widely reported Hobby Lobby case. There is a significant but not obvious connection between the two.

Leviticus is the one of the Five Books of Moses that has the least action and the most rules. Lots of rules about the behavior of the Jewish people. In the thousands of years since those rules flowed into the processes of cultural and social oral tradition, and in the thousands of years since those traditions were set down in writing, different Jewish people and communities have determined which to honor and which to ignore. Those decisions are based on what exactly one thinks these rules are: God-given and inviolable, or ancient and subject to temporizing to suit modern philosophy and life. We should not wear clothing made from two different fabrics, Leviticus says. Non-literal interpretations of this have been conceived for centuries, but it says what it says, or rather, God says what God says. But what’s so wrong about a wrinkle-free, 60/40 cotton-poly blend shirt?

The Tazria portion begins:

The Lord spoke to Moses, saying: Speak to the Israelite people thus: When a woman at childbirth bears a male, she shall be unclean seven days; she shall be unclean as at the time of her menstrual infirmity. On the eighth day the flesh of his foreskin shall be circumcised. She shall remain in a state of blood purification for thirty-three days: she shall not touch any consecrated thing, nor enter the sanctuary until her period of purification is completed. If she bears a female, she shall be unclean two weeks as during her menstruation, and she shall remain in a state of blood purification for sixty-six days.

On the completion of her period of purification, for either son or daughter, she shall bring to the priest, at the entrance of the Tent of Meeting, a lamb in its first year for a burnt offering, and a pigeon or a turtledove for a sin offering. He shall offer it before the Lord and make expiation on her behalf; she shall then be clean from her flow of blood. Such are the rituals concerning her who bears a child, male or female. If, however, her means do not suffice for a sheep, she shall take two turtledoves or two pigeons, one for a burnt offering and the other for a sin offering. The priest shall make expiation on her behalf, and she shall be clean.

 The attitude toward and treatment of this passage in a modern context ranges widely, depending on belief sets. Some express wholesale acceptance and obedience (except for the sheep and bird sacrifice). Some faithfully regard it as God’s word, but pass it through interpretive filters suitable for the times. Some see it as a reflection of ancient people making sense of the mysteries of God and life.

One of those mysteries, of course, is women. Especially for men. Especially for the strange and foreign ways that women “work”. No matter your ideology, no matter how much the passage is accepted or spun, it is not hard to read meaning. Women are different. Some of that difference renders them unclean, even if that part is functionally essential (e.g., sex, birth). That uncleanness can be fixed, but it will cost you (e.g., lambs, pigeons).

The Hobby Lobby cases (Kathleen Sibelius, Secretary of Health and Human Services v. Hobby Lobby; Conestoga Wood Specialties Corp. v. Sebelius) concern the interaction of two federal laws: The Religious Freedom Restoration Act of 1993 (RFRA), which aims to protect Americans from intrusion on their religious lives, and the Affordable Care Act (ACA) which, among other things, requires employers to offer health insurance that includes coverage for contraception. The Tenth Circuit Court of Appeals found that the religious right of companies such as Hobby Lobby, which has Christian objections to providing that coverage, overcomes the particular requirement of the ACA.

The big legal issues are complex and significant. One arises every time religion is in the mix: we protect religion in this country, both in its expression and establishment, but in a nominally secular country, that is bound to clash with civil rights that may contravene religious belief. This isn’t easy to resolve, but resolve it we do. If, for example, your religion happens to believe that people of color are lesser human beings, and you are “commanded” to treat them accordingly, you still cannot follow that faith in the public square or the marketplace.

The other big legal issue is whether a company such as Hobby Lobby is a “person” able to enjoy religious liberties in the first place. We’ve seen this come up before and will again. Citizens United is the most recent and famous case deciding that enterprises may enjoy free speech, First Amendment rights, just as you do. Then there is Mitt Romney, former presidential candidate, who will forever be identified with his own legal interpretation of the issue: “Corporations are people, my friend.”

Besides these, the Hobby Lobby case is widely viewed as being about women, because practically it is. The ACA requirement that health insurance include contraceptives for women is a practically and realistically sound policy. A large majority of women use contraceptives, either for health reasons or, more frequently, to prevent conceiving as a result of sex. Preventing conception has a number of advantages, including avoiding unwanted or unplanned pregnancies. An advantage of this is that women do have sex, and do want to avoid pregnancy. It’s that basic. And then there’s this: many of those women who want to prevent conception are having sex with men.

The transcript of oral arguments in the Hobby Lobby case shows, as usual, a deeply divided court. Beyond the interesting central arguments concerning religious freedom and the personhood of corporations, there is a subtle subtext (some might say not so subtle). To a certain extent, the law, and arguments about it, are clinical. To the greatest extent possible, questions about impact are subservient to questions about the law itself: what it says, what was intended, how it works with other laws and with the Constitution. The rule of law prevails over the rule of people, and if the impact is unfair or disproportionate but still constitutional and legal, well, change the law.

But that has never been, will never be, and can never be how it works. Everyone—judges, lawyers, litigants, citizens—comes to the table with histories, psyches, lives, all the riches and trash we can carry. That’s how a case that seems about one thing can be, at least in small part, about another. That’s how the Hobby Lobby case is about women, something the three women on the Supreme Court without question get, something the six men may or may not.

Do read the transcript of the argument and maybe a few of the almost one hundred appellate briefs filed in the cases. In the arguments, you won’t find any express misunderstanding of the lives and impact of the case on women, though you may if you read between the lines. The briefs, which come from just about every corner of American society and politics, are a little clearer on how this is about women in ways that are not just incidental.

This brings us back to Tazria. It is easy to dismiss the passage as archaic, particularly for those who have found ways to work through or around it. Similarly, you may consider the Hobby Lobby case one about important and respectable religious and legal doctrines, and it is.

It can’t be said often enough: Men don’t get it and they can’t. They don’t know what it’s like to menstruate or be capable of bearing children or of having children. They don’t know what’s it like to be treated as unclean because of all of that, and then to be hypocritically treated as enjoyable and useful for those very same reasons. They don’t know how it feels to have some very simple means of adjusting all that, and then to have those means treated as something both profound and trivial, but not important.

Men don’t know, even if they are at the pinnacle, writing scripture or dispensing justice. So pleading ignorance, a little humility, a little learning, and a little compassion might be in order.

The Most Significant Shutdown Front Pages

El Diario

Republicans should pay close attention to the front pages of America’s newspapers this morning, the first day of the government shutdown prompted by their obsessive opposition to Obamacare.

Most papers carry some version of “shutdown” or “gridlock,” with photos of John Boehner and Harry Reid, or John Boehner and Barack Obama (it’s all about John Boehner).

But the big story on two front pages is the opening of the Affordable Care Act insurance exchanges. These two papers just happen to be two of the largest Spanish-language dailies—El Diario in New York (above) and La Opinion in Los Angeles (below).

La Opinion

Why is this significant for Republicans? Because they claim (but in their heart of hearts still may not believe) that here in the second decade of the 21st century, they can’t become an American national party without broad Latino support. That is true, but the fact is that a large part of that constituency is uninsured and is deeply interested in the benefits of Obamacare. This is reflected in those front pages. But the Republicans are sworn enemies of Obamacare, so committed that they are willing to put people out of work to do it. How can the Republicans be a party attractive to Latinos under that circumstance?

The answer is that they can’t. It is a circle Republicans cannot square. And no matter how much lip service they pay to underserved populations, everything they do says something else. Actions, like front pages, speak louder than words.

The Government Shutdown and Masturbating Fetuses

Rep. Michael Burgess
In the contentious Saturday night House debate on the Continuing Resolution to fund the federal government—a resolution that guts Obamacare and will almost certainly lead to a partial government shutdown—Republican Rep. Michael Burgess of Texas revealed a little known fact about the Affordable Care Act: it was “never intended to be law,” even though it obviously is. How so?

And here’s the real crux, Mr. Speaker. Here’s what’s really wrong and why Washington is in such a lather right now: The Affordable Care Act was never intended to become law. It was a vehicle to get the Senators home on Christmas Eve before the snowstorm. It was never intended to be law. The law that was passed by the Senate was a rough draft. It’s equivalent to saying the dog ate my homework so I turned in the rough draft; and, unfortunately, the rough draft got signed into law the following March, and that’s why there’s so much difficulty with this.
Congressional Record, September 28, 2013

Who is Rep. Burgess and why is he saying these things? He is a medical doctor, an ob/gyn, and has become one of the Republican Congressional experts on health care. Research shows that he has some other interesting views. This from U.S. News on June 18 of this year:

Rep. Michael Burgess, R-Texas, said Monday he is opposed to abortion because fetuses masturbate in the womb, and so can feel both pleasure and pain.

“Watch a sonogram of a 15-week baby, and they have movements that are purposeful,” said Burgess, citing his experience as an OB/GYN, during a House Rules Committee hearing on a GOP bill that would ban abortions after 20 weeks. “They stroke their face. If they’re a male baby, they may have their hand between their legs. If they feel pleasure, why is it so hard to think that they could feel pain?”

His comments were first reported by women’s health site RH Reality Check.

But Burgess’s argument isn’t based in science, doctors say. “We certainly can see a movement of a fetus during that time, but in terms of any knowledge about pleasure or pain – there are no data to assess,” says Jeanne Conry, president of the American College of Obstetricians and Gynecologists, a professional association for OB/GYNs. “We don’t know enough about the biology and the science.”

One more medical opinion from Rep./Dr. Burgess on the country’s sickness: President Obama must be impeached. Burgess said to a Tea Party questioner in 2011: “It needs to happen, and I agree with you it would tie things up. No question about that.”

Some Little Truths About Obamacare

Affordable Care Act

You may not want to think or talk about the Affordable Care Act. Who can blame you? Politicos and talking heads are doing enough for all of us.

And yet, October 1 marks the start of people reading the menu of health insurance options and deciding which way to go. Which is why the volume of debate is once again up to 11 and why it is harder than ever, even after all this time, to make sense of any of it.

Previous posts have covered the process: how ACA is based on a Republican proposal, how Republicans ran screaming away from their own proposal, how the Supreme Court narrowly allowed it to proceed, etc. Now is the time to consider the substance and the merits, reluctantly. Reluctant because some kind of truly broad and truly affordable health coverage really is necessary for a civilized, modern and (in some segments) wealthy society, so a critique should not appear to deny that. Reluctant because, under the circumstances, ACA may really be the best we can do, even if that is not saying much.

But here are a few truths.

1. This is the most complicated, Rube Goldberg-like social program in American history. Comparisons to Social Security and Medicare—as in “people were skeptical or opposed to Social Security and now these programs are an integral part of American life”—are inapposite. Think: one concept, one law. That may be oversimplifying, but not much. Social Security was and is a way to create a fund to help older and disabled Americans who can’t help themselves. The way it’s evolved may be complicated and not to all tastes, but the basic concept remains. The same can be said about Medicare.

The single concept of ACA is more elusive, despite the name making clear it is about affordability. Separate from the execution and success in that regard, ACA is also about the reach and availability of coverage. More properly, it might be called the Market-Based Universally Available Affordable Care Act, a name that would hint at its complexity.

2. It may be too complicated to manage. To get to the truth of this, we have to look bigger. Bigger, as in the manageability or not of the American government. The loud complaint from some corners is that the government is “too big.” This is a misplaced critique. The problem is that very big enterprises are very hard to manage effectively. Just shrinking an unoptimally managed enterprise lessens the damage and the cost, but it doesn’t change the fact of ill management. Scientific management tells us that in theory any enterprise of any size can be managed, by discovering or devising the appropriate principles and executing soundly. But there is a cousin to “too big to fail” that is “too big to run.” Maybe the government is that.

Maybe the ACA is that also, too big and too complicated. Which touches back to the idea of its not having one single concept. It seems clear, as it did to the ACA proponents, that so-called universal, single-payer health care would never be accepted in “free market” America. If that wasn’t always clear, the debacle of the Clintoncare proposal, engineered by Hillary during the Clinton administration, put it out of reach for a generation. The only way to get anything, rather than nothing, was to patch together components that were variously consistent with popular ideas, market mechanisms, federalism, healthy business and industry interests, along with political and legal constraints. The wonder isn’t that a combination car/boat/plane gets designed and built. The wonder is that it can drive or float or fly.

3. The American political environment is distrustful, skeptical and toxic. Social Security was born during the worst economic crisis ever. So the building of an historic safety net was fitting. But on top of that, even with virulent opposition, there was a widespread understanding that we were all Americans, and part of that was caring for others, and part of that care was trusting that the government would, within the limits of human fallibility and self-interest, do the right thing.

We can pray for the return of that context, but it isn’t today. Today we have an unprecedented spectacle of a small but powerful segment of the country working desperately, and maybe effectively, to make sure that ACA is repealed or at least fails miserably. The reasons are as complex as the act itself, a bit about the shortcomings of the law, but, not surprisingly, mostly about politics. Proponents find themselves in the position of defending the act, promising to improve it, and trying to make it work—all the while perhaps harboring doubts in the places they can’t talk about that it won’t, not entirely.

Let’s hope it does work, a little. Because American health care is so broken, and for the moment, this is what we’ve got.

The Republican Health Care Plan Is Obamacare

National Health System for America - Heritage Foundation (1989)

Say something once, why say it again?
Talking Heads, Psycho Killer

Sometimes making a point means repeating yourself and not saying you’re sorry.

The current situation is that Newt Gingrich yesterday criticized attempts by some Republicans to repeal the Affordable Care Act, saying that the party had to offer alternative plans and unfortunately had not one idea.

He is of course wrong. As pointed out in an earlier post Heritagecare, the Republicans at one time did have a big idea about health care reform. It was developed at the conservative Heritage Foundation in 1989, as a market-based alternative to any sort of single-payer national health plan. The centerpiece of this reform was a national mandate requiring everybody to have insurance. With some refinement, this Heritage plan is at the heart of the Affordable Care Act. Obamacare is a version of Heritagecare.

Following the development of the Heritage plan, this is what happened.

Bill Clinton was elected President. First Lady Hillary Clinton promoted the adoption of national single-payer universal health care. This proved to be a political disaster and embarrassment. Health care was taken off the table for years.

Mitt Romney was elected Governor of Massachusetts. He used the Heritage plan—a Republican idea— as the basis for a state health care program. By all accounts, it was a success.

Barack Obama was elected President. He made health care reform a priority, but with single-payer dead in the water—maybe forever—he promoted a program based on the Heritage plan. As proof of concept for the Affordable Care Act, he could point to Massachusetts, where such an idea had worked.

Republicans intent on eviscerating Obama and his presidency used what they called “Obamacare” as a prime example of totalitarian socialism in action. They ignored the conservative origins of the plan. These Republicans were aghast when the Supreme Court narrowly allowed the plan to proceed as constitutional, but continue to do whatever they can to thwart it, including the dozens of attempts to repeal it—the same useless attempts that Gingrich criticized.

Mitt Romney ran for President. He could no longer embrace Heritagecare/Romneycare/Obamacare. He explained that while the plan might be good for Massachusetts, it is no good for America. He was never directly confronted with a version of the question: Are you serious?

Newt Gingrich is a very complicated man and politician, but he should be given his due. He is joining a chorus of mostly old-school Republicans trying to tell the Young Turks to get real. In this case, getting real could actually work to the Republican advantage, though they seem to be too ideology-blinded (and Obama-hate blinded) to see it.

People really do have some serious and legitimate qualms about the Affordable Care Act, and its implementation is bound to be a rocky road. If the Republicans looked back to their own Heritage plan, and if they took seriously the lip service of “compassionate conservatism”, they might actually be able to offer some constructive, earnest and enlightened adjustments—all for the sake of the general welfare of the country. As it is, that won’t be happening now or anytime soon.

Victims of the Federalist Laboratories


This morning, a pundit again tried to square the circle by explaining how Mitt Romney can be both the heroic father of Romneycare in Massachusetts and the sworn enemy of Obamacare in the U.S. It goes like this: the states are political/social/economic “laboratories” in which 50 different experiments can produce 50 different solutions. (It isn’t clear why the District of Columbia, Puerto Rico, etc., are not capable of conducting these experiments too.)

This is nonsense. Not as political theory or as Constitutional interpretation. It is nonsense because it makes no sense, or at best, tragic sense.

America’s most notorious state-by-state experiment was slavery. And if an experiment is judged by its results, slavery was in some ways an excellent economic solution for the states that tried it. No matter how much other states tried to convince them that it was flawed, those slavery laboratories kept on operating—right until the time that they were forced to close them down in a bloody war.

This is how experimental laboratories work. Different scientists race to solve essential problems. When one comes up with an effective solution, that doesn’t necessarily stop the others from continuing their work on better answers, or from criticizing competitors. But in the meantime, if the problem is critical, the solution is rolled out widely to relieve the situation, at least until something better comes along.

Let’s say that the Massachusetts laboratory developed a cure for cancer. After some clinical trials, it was deemed worthy to be given to the whole state. The benefit was positive and obvious. One of the developers went out of his way to make a high-profile public case for its success and his role in it.

But the other 49 states said: not so fast. They believed that there was a better solution to cancer, if not right around the corner, then soon. All they needed was more time, and in the meantime, they didn’t want the people of their state subjected to these wild experimental solutions.

That is a much more apt metaphor than merely talking about laboratories in general. Call it what you want—Heritagefoundationcare, Romneycare, Obamacare, Affordable Care Act—we have a proven solution. Standing in the way of it, promising to repeal it, simultaneously owning and disowning it, is unconscionable in the face of knowing that with it, people who are well can be kept well and that people who are sick can get better.

Anyone, from a Presidential candidate on down, who can look at people and tell them that they will just have to suffer a little longer while the political scientists of the 49 states tinker in their laboratories needs to look elsewhere. They need to look at themselves, and see where the real problem is.

Judge Richard Posner: “I’ve Become Less Conservative Since The Republican Party Started Becoming Goofy.”


Last month, Judge Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago gave an interview to NPR’s Nina Totenberg.

Richard Posner is one of the most widely-respected judges and legal analysts in the country. Brilliant and forthright, he is admired by people across the political spectrum for his integrity, insight and elegant reasoning.

He has traditionally been identified as a conservative and with the Milton Friedman school of economics, but lately he has been reassessing that alignment:

“There’s been a real deterioration in conservative thinking. And that has to lead people to re-examine and modify their thinking….I’ve become less conservative since the Republican Party started becoming goofy.”

During the interview, he wondered aloud about what Chief Justice John Roberts must be thinking, having gone from conservative hero to goat because of his vote to uphold the Affordable Care Act:

“All of a sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, ‘What am I doing with this crowd of lunatics?’”

One of life’s more subtle and hard-to-accept lessons is this: You may think that you are known by the esteemed company you keep, but you do well to pay close attention to the esteemed company you lose.

Pete Rose And The Healthcare Decision

It looks as if the Supreme Court will issue its decision on the Affordable Care Act (aka Heritagecare) this week. An unreported story is the relationship of this to baseball legend Pete Rose.

There has probably been more betting on the outcome of this legal question than any before, at venues such as Intrade. Presumably the bettors include some number of lawyers; with more than a million lawyers in the U.S., what are the odds of that?

Major League Baseball has so far banned Pete Rose from the Hall of Fame because he bet on games. Not games he or his team were involved in, just games. Ever since the Black Sox scandal almost a century ago, baseball has had a zero tolerance rule on gambling by anyone in the sport.

The courts and the bar associations that regulate the practice of law have well developed and strict rules of conduct for lawyers. Obviously illegal gambling is just that— illegal—and clearly out of bounds. Gambling addictions that affect practice have also taken a prominent place in the rules of professional responsibility.

But it doesn’t appear that reasonable and prudent legal gambling of any kind is an ethical problem for lawyers. Unless, that is, there is some kind of Pete Rose issue about it. Specifically: Can lawyers responsibly and ethically bet on court decisions with which they have absolutely no relationship? The answer awaits investigation, and maybe some law review articles.

As for the case itself, they say that only fools predict difficult Supreme Court decisions. So a fool rushes in:

1. The Court will have the law stand or fall as a whole and not pick and choose. There is no severability clause. The court can appropriately say that with such an integrated and complex piece of legislation, if Congress got it wrong constitutionally, it is up to Congress to get it right.

2. If it falls on the basis of the mandate, as widely expected, the reasoning of the majority is going to be a sight to behold and study. A principle of jurisprudence at every level is to decide legal issues as narrowly as possible, unless there is an intention to make a bold legal statement. When the Supreme Court speaks, the bolder the statement, the more far-reaching the impact. In a three-branch democracy, any statement about the limits of powers is very loud and long-echoing.

3. We may not have nine opinions, but we may have an almost complete set of concurring and dissenting opinions. For those who have never read dissents in Supreme Court opinions, be aware that in difficult and controversial cases, it is not unheard of or inappropriate for dissenting Justices to politely but clearly state that the majority is in all respects wrong (see the four dissents in Bush v. Gore).

And now, the bottom line. Intrade traders have placed their bets, and they say the chances of “The US Supreme Court to rule individual mandate unconstitutional before midnight ET 31 Dec 2012” are 76.5%. Judging by the comments on the site, the bettors are some combination of knowledgeable thinkers and anti-Obama ideologues. Intrade and those analysts willing to go out on a limb are right. The mandate will be found wanting, with strenuous disagreement among the Justices. And on the basis of non-severability, so will the entire Affordable Care Act.

Or, then again, maybe not.