Notes on our constitutional dictatorship (continued, sadly)

Sandy Levinson

Tomorrow's NYTimes apparently will have as its lead story "Administration Presses Pakistan to Fight Taliban," which begins as follows:

"The Obama administration is turning up the pressure on Pakistan to fight the Taliban inside its borders, warning that if it does not act more aggressively the United States will use considerably more force on the Pakistani side of the border to shut down Taliban attacks on American forces in Afghanistan, American and Pakistani officials said."

Perhaps I'm missing the point, but this distinctly sounds like the threat of a unilateral declaration of war against Pakistan, "unilateral" because there is, of course, not the slightest hint that the Administration will go to Congress for a declaration of war against our putative ally, Pakistan. What this also reminds me of is the Nixon Administration's rationale for taking the Vietnam War into Laos and Cambodia, because they were being used as bases for attacks on US forces in Vietnam. This continues a pattern of presidential unilateralism begun by Harry Truman in 1950 and carried to most recent excess by George W. Bush.

I wonder, also, if we are seeing the beginning of a "credibility gap," particularly as regards the terms of our involvement and the phantasmic "withdrawal date(s)" that are now being bruited about. We are still living with the consequences of developing during the Vietnam Era a corrosive cynicism about whatever "our" government told us about the most fundamental issues of war and peace, life and death. Why, exactly, should we believe what we're being told, given that the premises of the articulated policies are incoherent and/or rest on an extraordinary degree of magical thinking, such as the relevance of the COIN manual to Afghanistan, the second-most corrupt country on the face of the earth that has never, apparently, had a strong central government in its centuries-long history, for starters. And, according to tomorrow's Times story, “'We concluded early on that whatever you do with Pakistan, you don’t want to talk about it much,' one of the president’s senior aides said last week. 'All it does is get backs up in Islamabad.'” Presumably it really doesn't matter what the American people know (or think) about such things, save that the Administration will presumably ratchet up the argument that we "must" move the war into Pakistan in order to protect Ameicans at home. "The implicit threat of not only ratcheting up the drone strikes but also launching more covert American ground raids would mark a substantial escalation of the administration’s counterterrorism campaign." What will happen if the Taliban retaliates by increasing terror bombings in Pakistan and destabilizing control of Pakistan's nuclear arsenal. Will we be sending in troops (with India?) to gain control of that arsenal, which is even more important than the Iraqi oil fields?

I still feel it necessary to say that I am pleased that Obama is President instead of either Clinton or McCain; I admire the demeanor described in the NYTimes story about the many deliberations leading up to the "surge." And I was reinforced in my suspicions last year about Hillary Clinton, who would apparently have gladly sent the full complement of 40,000 troops to Afghanistan. But I increasingly have a sickening feeling that he is almost willfully destroying the hopes that so many of us had that he would in fact bring us change we could believe in.

This is truly an ominous moment in American politics.

Posted 10:41 PM by Sandy Levinson [link] (60) comments

The Structure of Government and Today's Argument in the Sarbanes-Oxley Act Case

Rick Pildes

As someone who has followed the important issues in this case closely, including by filing an amicus curiae brief on behalf of seven former Chairmen of the SEC in support of the government's position, there were a number of surprising comments from various Justices about central administrative law issues. I will only note the first of these here; with time, I will note a few others.

Independent agencies, like the SEC, the FCC, the FTC, have been held constitutional since the famous Humphrey’s Executor case. But today, Justice Scalia asserted -- at the very start of the government's argument -- that independent agencies are constitutional only because the President has the power to remove the Chair of these agencies. This did not seem a casual comment from Justice Scalia; it also seemed that some other Justices might share this view.

The first reason this is such a surprising position is that it has never been expressed before, at least as far as I know. Certainly, it has not been expressed in any Court opinion, including Humphrey's Executor, when the Court upheld the constitutionality of these agencies.

Second, there's a problem with the point: although the President now has authority to select the Chairman of the SEC from among the Commissioners and remove him from that position at will, that was not the way the statutes worked at the time Humphrey’s Executor was decided (for either the FTC or the SEC). In 1935, the Commissioners themselves chose the Chairman from among their own membership; the President had no greater authority over him than he had over any other Commissioner. See Humphrey’s Executor v. United States, 295 U.S. 602, 620 (1935) (“The commission shall choose a chairman from its own membership.” (quoting ch. 311, § 1, 38 Stat. 717, 718 (1914)). The President was only given authority over the Chairman in 1950. See Reorganization Plan No. 8 of 1950, § 3, 15 Fed. Reg. 3175, 3175 (May 25, 1950) (“The functions of the [Federal Trade] Commission with respect to choosing a Chairman from among the membership of the Commission are hereby transferred to the President.”); Reorganization Plan No. 10 of 1950, § 3, 15 Fed. Reg. 3175, 3175 (May 25, 1950) (same for SEC). So the Court certainly could not have thought, at the time it decided Humphrey's Executor, that the FTC was constitutional only because the President could remove the Chairman of the FTC.

To put the point another way, the position of a Chairman only exists because Congress by statute eventually decided to create one -- and Congress could eliminate the position of Chair. For example, the President does not appoint a Chairman of the Federal Election Commission; that position rotates among the six Commissioners. Does Justice Scalia believe the Constitution affirmatively requires Congress to create a Chair of an independent agency -- and that the President be given the power to remove that Chair at will?

I find it hard to believe that Justice Scalia, or any other Justice, really thinks that, once he sits down to think it through. But that would seem to be the logic of the position that independent agencies are only constitutional if the President can remove their Chairs.

This was only one of several, similarly surprising comments from the Court at today's important argument. With time, I will try to address some of the others.
Posted 6:48 PM by Rick Pildes [link]

More on Desiree Rogers and congressional oversight

Sandy Levinson

The New York Times has an interesting story today on the White House Social Secretary, Desiree Rogers. At the very least, I am persuaded that she is worth every penny (and probably much more) of the $113,000 that she receives in her position. Indeed, I have second thoughts about having emphasized her salary in my previous posting, because my view is that almost all federal officials, beginning with civil servants and going through the Cabinet, are significantly underpaid. I have no doubt that she could earn far more doing similar things in the private sector. The story describes someone who is extremely competent, even if she seems to have been somewhat unwise in becoming too much of a public fashion plate. But she seems to be quite imaginative in her conception of the kinds of social activities the White House should engage in.

All of this, however, is really beside the point to the Administration's invocation of a constitutional privilege to prevent her testifying before the House committee looking into the fiasco at the State Dinner for the Indian President. I continue to believe that there is no good reason to prevent her testifying. Perhaps there is good reason to limit oversight of the National Security Advisor, but I do think the rebuttable presumption should be that Congress can require the testimony of any member of the executive branch who receives a salary from the national government unless the official in question can be compared, say, to a judge's law clerk. This would mean, at the very least, that the President would have to put in writing the reasons (beyond simply citing the vague principle of "separation of powers") for preventing the appearance. I presume that what's ultimately at stake is whether, e.g., Larry Summers can be required to testify in the way that Ben Bernanke and Timothy Geithner most definitely can. To this extent, Ms. Rogers may simply be a placeholder, for all sides, for a much more profound debate about whether the Madisonian promise institutional oversight will survive the ever greater number of staff and "czars" that distinguish contemporary presidencies.



Posted 11:28 PM by Sandy Levinson [link]

Why California's Tuition Hike Might Be A Good Thing

Ian Ayres

Posted 4:50 PM by Ian Ayres [link]

A new type of affirmative action for veterans?

Sandy Levinson

The most important "affirmative action" program in American history was the GI Bill of Rights, a thoroughly defensible program in which a grateful nation justifiably made it possible for millions of veterans to attend colleges and universities after World War II and to transform the nation as a result. Perhaps there was so much support for the program because most veterans were draftees. Today, of course, we have a "voluntary army," and I suspect that for all of the public rhetoric about "our heroes," there is insufficient support to provide them with sufficient contemporary forms of benefits because of a belief that, after all, they knew what they were in for when they signed up. I think this is a mistake, not least because I suspect that the "voluntary army" is composed disproportionately of youngsters who do not have better economic prospects, especially if, as I assume is the case, the immediate post-Sept. 11 spate of patriotism has diminished in the face of two wars, one of them indefensible from the outset, the other only barely defensible (if that) as we enter its ninth year. But this post isn't intended to promote a debate about Afghanistan or the wisdom of President Obama's decision to escalate the war there.

Rather, it appears that there is a new form of affirmative action for a certain subset of veterans, courtesy of the United States Supreme Court. The Court in effect seems to have declared that veterans should get special legal solicitude when they are sentenced to death for committing brutal murders. As Linda Greenhouse points out in a remarkable post on the New York Times blog site, titled "Selective Empathy," the Court, in an unsigned per curiam opinion issued without a moment of oral argument, said that it was obviously ineffective assistance of counsel to fail to point out to a jury that the murderer had been in the Korean War 38 years before and had gone through some really horrific events then that, apparently, traumatized him sufficiently thereafter to make it more understandable that he would become a brutal murderer. Indeed, the Court apparently sketched its own version of the argument the lawyer should have made, "with," according to Greenhouse, "a vivid recitation of the battles Mr. Porter’s unit had fought 'under extreme hardship and gruesome conditions.'”

She compares the unanimous verdict in this case with a similar case, also unanimous, in which the Court "also per curiam and also unanimously, sent chills down the spine of death-penalty opponents by overturning a different federal appeals court’s grant of habeas corpus to an Ohio death-row inmate who also claimed ineffective assistance of counsel. The inmate, Robert J. Van Hook, robbed and murdered a man he picked up in a gay bar. He is also a military veteran, but one whose service was terminated because of alcohol and drug abuse." There the Court held that the failure of his lawyer to present a host of potentially mitigating evidence about his abusive childhood was well within the range of professional responsibility, regardless of the views of the courts below. So that poor wretch will die, perhaps (if one favors the death penalty) justifiably. But the problem, of course, is trying to explain why the other poor wretch receives mercy from the Court save for its solicitude for veterans.

Perhaps the Court was being less causal in its analysis, with regard to the consequences of having served in Korea, and simply was sugggesting that a jury would of course wish to spare the life of a veteran as a gesture of appreciation even if they would fail to do so in the case of another murderer who hadn't served in the armed forces. After all, the per curiam opinion noted that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines.” So, query: Would it be constitutional for a state simply to exempt any and all honorably discharged veterans--or at last those "who fought on the front lines"--from the possibility of receiving the death penalty, while keeping that possibility open for all the rest of us who did not serve in the armed forces (or served but received less than honorable discharges)? If not, then is the point that we rely on low-visibility and unaccountable juries, with the imprimatur of the United States Supreme Court, to administer such an affirmative action program? I leave open that perhaps the answer to my question is yes, since the Court upheld permanent veterans' preferences for civil service jobs money years ago in spite of the evidence that men were the overwhelming beneficiaries inasmuch as women had had very little opportunity to serve in the armed forces until quite recently. And the Court also upheld the right of Congress to treat veterans' groups uniquely by exempting contributions to them from certain tax treatment even if similar contributionsn to other groups engaging in similar lobbying would make it impossible for the contributor to deduct the contribution as a charitable contribution. So perhaps the next step is indeed to exempt veterans from the death penalty. That's cheaper, after all, than making sure that our veterans enjoy jobs and a full measure of food, clothing, and shelter on their return to civilian life.

In any event, I am delighted to have the opportunity, yet once more, to read Linda Greenhouse's observations on the work product of that most peculiar of all American institutions, the United States Supreme Court.



Posted 6:04 PM by Sandy Levinson [link] (7) comments

Implications of the 2008 Election for the Voting Rights Act

Nate Persily

I have placed up on SSRN a revised version of my paper with Stephen Ansolabehere and Charles Stewart, "Race, Region, and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act," which will be published this spring in the Harvard Law Review. The article develops the arguments made in an amicus brief we filed with the Supreme Court on behalf of neither party in last year's voting rights case, NAMUDNO v. Holder. The article examines election returns and survey data from the 2008 election and previous elections to gauge the trends in racial polarization in the electorate and to assess whether the jurisdictions covered by section five of the VRA differ along these dimensions in any systematic way from those not covered by section five. The study finds the following:

Racial polarization in the electorate, as measured by the gap between whites and racial minorities in the share voting for a particular candidate, increased in the 2008 election. This is due in large part to Obama's increase in vote share among racial minorities as compared to his predecessors, especially John Kerry. Obama gained a greater share of the white vote (about 3 percentage points more) than Kerry did four years earlier. However, most of this gain can be attributed to gains among whites in states not covered by section five of the VRA. Among the covered states, as a group, Obama did just as well among whites as John Kerry. While he did better among whites in Virginia, for example, he actually did worse among whites in the Deep South states of Alabama, Louisiana, and Mississippi. (He also did worse, as compared to Kerry, among whites in some noncovered states, such as Arkansas.) Survey data indicate that in 2004 the differences in voting patterns among whites in the covered and noncovered states could be attributed to partisanship, ideology, and religiosity. In 2008, however, those same variables cannot explain away the differences in voting patterns between whites in the covered and noncovered states. Survey data concerning reported vote in the 2008 Democratic primaries and caucuses point to similar results, but the differences are not as stark as they were for the general election.

Posted 2:25 PM by Nate Persily [link]

Citizens United, Corporate Personhood and the Constitution: CAC Releases Discussion Draft of New Report in Advance of Major Supreme Court Ruling

David Gans

As we await the Supreme Court’s decision in Citizens United v. Federal Election Commission, expected any day now, Constitutional Accountability Center (CAC) has continued to build on the scholarly research discussed in our brief filed with the Court: whether corporations have the same rights as individuals, particularly when it comes to influencing electoral politics in this country.

The result of this work is this discussion draft, tentatively titled “A Capitalist Joker”: Corporations, Corporate Personhood, and the Constitution, which we intend to release more formally in January as the latest installment in our Text & History Narrative Series. The text of our Constitution never mentions corporations and, as our narrative explains, this was deliberate: the framers wrote and the American people ratified the original Constitution, the Bill of Rights, and the three Civil War amendments -- the Thirteenth, Fourteenth, and Fifteenth -- to secure the inalienable rights of “We the People” -- living human beings. Governments create corporations and give them special privileges to fuel economic growth, but with these special privileges come greater government oversight. Indeed, in the early 20th Century, the American people added the Sixteenth and Seventeenth Amendments to the Constitution, at least in part, to ensure greater governmental control over corporations and less corporate influence over our democracy.

The narrative traces the Supreme Court’s treatment of corporations from the Founding era Court under John Marshall, through the Lochner era, the New Deal, and up through the Roberts Court today. The narrative shows that while corporations have long enjoyed some protections under certain constitutional provisions, they have only been granted equal constitutional rights once – in a series of opinions in the infamous Lochner era. Today, those opinions have been repudiated by liberals and conservatives alike and have been dismissed by the Supreme Court as a “relic of a bygone era.”

Citizens United and its supporters are portraying their case as a fight over the meaning of the First Amendment, but this obscures the far more fundamental question that underlies their claim. In arguing that there is no difference between corporate speech and the political speech of We the People, Citizens United seeks a radical constitutional result -- one that the framers of the Constitution and the successive generations of Americans who have amended the Constitution and fought for laws that limit the undue influence of corporate power would find both foreign and subversive.

Given the Court’s forthcoming decision in Citizens United, we are posting the narrative as a discussion draft now on a number of legal blogs, with the hope of better informing the discussion of the case. We enthusiastically welcome your thoughts – criticisms, oversights, suggestions, and more – in the comments section below.

David H. Gans is Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center (CAC). He is lead author of the discussion draft posted above, and co-author of the brief CAC filed, along with the League of Women Voters, in Citizens United v. Federal Election Commission.

This article is cross-posted at Text & History.
Posted 1:13 PM by David Gans [link] (14) comments

Original intent and the White House Social Secretary

Sandy Levinson

The White House is apparently invoking the theory of separation of powers to prohibit Desiree Rogers, President Obama's Social Secretary, from testifying on the recent imbroglio regarding gate-crashing at the White House. My own view is that the White House is making a big mistake for no defensible reason. The reason for my title is that it is literally inconceivable that anyone drafting the Constitution would have imagined the position of White House Social Secretary, paid for with taxpayer funds, and that the majesty of separation of powers rhetoric would apply to a situation like this. I note, incidentally, that Ms. Rogers's salary is listed as $113000, the same salary received by her predecessor in the Bush Administration, Amy S. Zantzinger. I can't help noting that Ms. Zantzinger received more than the $107,836 received by Marcella Moira Green, the hitherto unknown "Ethics Advisor" in the Bush White House. There may be reasons for invoking presidential privileges to prevent associates from testifying before Congress (it might certainly be embarrassing to know what Ms. Green might have said in her capacity as ethics advisor to Bush), but this most certainly isn't one of them. This is simply yet more evidence that all presidents, regardless of political party and ostensible commitment to "transparency," take on royalist airs when taking their oath of office. Gerald Ford, recall, chose to testify on the Nixon Pardon, and the country survived just fine (and he died a reasonably beloved ex-President). The separation of powers will easily survive a decision by a gracious President to let his Social Secretary testify, even as he, perhaps defensibly, reminds the Congress that they indeed have no "right" to have her appear.



Posted 7:14 PM by Sandy Levinson [link] (27) comments

The "Stupak-Pitts" Amendment to Health Care Reform

Priscilla J. Smith

Part II of II: Is there a Silver Lining for Those who Support Women’s Ability to Choose Abortion?

As a natural pessimist, I never expected a U.S. national health care plan, much less any watered down health care reform, to cover abortions, though as an eternal optimist, I was hoping to be surprised. Since I expect a Stupak-Pitts approach to prevail (pessimist), it occurred to me that there might be some silver linings here (optimist) and that Stupak-Pitts might open the door to a new challenge to one of the oldest abortion restrictions, and undoubtedly the most devastating, since Roe: the bans on government funding for abortions for low-income American women.

From a public relations viewpoint, it is possible that by extending the double standard that already exists for poor women’s health care to middle class women, the inequality and injustice of the restriction on funding for poor women will come into greater focus for the more fortunate. The sting of the public funding ban is much greater for poor women than it will likely prove for middle and certainly upper class women. Studies have shown that approximately one-fifth to one-third of Medicaid-eligible women who become pregnant and would have obtained an abortion are forced to carry their pregnancies to term because they cannot raise the necessary funds. Still, despite significant success in state courts which have repeatedly pointed to the harmful and discriminatory nature of the bans, the political will has not existed to change the policy on the federal level. If middle and upper class women feel the sting of discrimination that many poor women have already felt -- when the men in their lives get their Viagra prescriptions filled but they are forced to pay out of pocket for their abortions – perhaps a new understanding of inequality and what poor women have gone through will gain hold. This isn’t much of a silver lining – rob Debra to pay Diane?

Perhaps more importantly, Stupak-Pitts could change the landscape against which an equal protection claim was heard, perhaps leading to a renewed challenge to the Hyde Amendment itself:


• First, it magnifies the equal protection violation caused by the Hyde Amendment and prevents health care coverage of one health care service, abortion, that is needed only by women, not only in the “exchange,” but by extension if the experts at George Washington are correct, in the private market itself, while allowing health care coverage of lots of stuff that men need, especially treatments for erectile dysfunction which anyone watching television or videos on the internet knows is a HUGE problem out there;

• Second, equal protection challenges to abortion restrictions have gained support over the last ten years or so, resulting in the dissent (okay I know) by Justice Ginsburg in Gonzales v. Carhart, 127 S. Ct. 1610, 1641 (2007), in which she wrote:

[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.

• Third, remember that the U.S. Supreme Court in Harris v. McRae 448 U.S. 297 (1980) (upholding ban on federal funding for abortions in the Medicaid program), did not consider a sex discrimination claim so the field is open.

• Fourth, in Harris the Court decided was focused on a privacy claim and found that the Hyde Amendment didn’t infringe the right to obtain an abortion at all; it wasn’t the funding ban that made it harder for women to obtain abortions, it was their indigency that was too blame. As crazy as that argument might sound, it would be irrelevant in a sex discrimination claim; it would Stupak-Pitts that discriminated against women by preventing them from receiving coverage for all medical-indicated services while granting coverage to men for all their medically-indicated and even what could be called “elective” needs, in other words needing to have an erection at a given place and time. By the way, I only think medical services for erectile dysfunction are “elective” in a world in which abortion is considered “elective,” not a world I’d advocate for, but a world in which many anti-choice folks live.

• Finally, I’m under no illusion that Justice Kennedy would provide a fifth vote; my Kennedy illusions are a thing of the past. Still, I’d point out to any overly confident member of the National Right to Life Committee that when Gonzales v. Carhart was filed, Justice O’Connor was still on the Court and the plaintiffs’ victory was a sure thing. When she retired leaving George Bush with an open pro-choice seat, the vote in the case went from 5-4 to 4-5 overnight. It is possible for things to change quickly again.


Posted 11:25 AM by Priscilla J. Smith [link]

The “Stupak-Pitts” Amendment to Health Care Reform

Priscilla J. Smith

Part I of II: Banning Public Funding or Refusing the Abortion Discount?
(Coming Tomorrow -- Part II: Is there a Silver Lining for Those who Support Women’s Ability to Choose Abortion?)

Now that the Senate has begun its health care debate, the specter of abortion reenters that Chamber – this time in the form of the “Stupak-Pitts” Amendment to the House health care bill. How tired am I of women’s reproductive organs being used as political footballs (softballs?) in the – dare I say it – male-dominated halls of Washington, D.C.? (Women represent approximately 17% of the members.) Well, of course I’m tired of it and probably you are too.

But hold on. There are two particularly interesting things about this debate on “Stupak-Pitts” (hold comments from the peanut gallery) that should make those tired of the abortion debate pay attention this time. The first is the suspect notion of “public funding” that is being bandied about to promote the Amendment. The second is the possibility of a silver lining for pro-choicers that should perhaps give anti-abortion folks pause: does Stupak-Pitts offer the opportunity for a new equal protection challenge to the federal abortion funding restrictions? Before turning to these points (my comments on the second point will be posted tomorrow), I’ll outline briefly how Stupak-Pitts would operate and its likely impact on health insurance coverage for abortion care.


What Stupak-Pitts Would Do

The Health Exchange

The House’s health care reform package that we may or may not get sets up a “health care exchange.” The exchange is essentially a new marketplace for private health insurance plans – and maybe a public option – that would be available to the uninsured (@ 17 million of whom are women 18-64), the underinsured or overcharged with coverage purchased in the individual market (@ 5.7 million of whom are women), and employees of small employers.

Subsidies

Some of those purchasing plans in the exchange will receive a subsidy to assist them in purchasing a private plan or a public plan option, if the latter survives the political battle. Many others purchasing insurance through the exchange, however, will not meet the income eligibility limits and so will get no subsidy. The plans they purchase will however be subject to the health exchange rules.

Stupak-Pitts would prohibit:

• the use of federal funds to pay for abortions directly; NB: this requirement seems unnecessary since health care reform is unlikely – to put it mildly -- to include a single payer system, like Medicare;
• the use of federal funds – defined to include any subsidy that reduces premium costs -- to buy a private plan offered in the exchange that covers any abortions (other than in cases of life endangerment by a physical condition, rape or incest). In other words, no woman buying a subsidized plan would be able to receive a plan that covered abortion.
• the coverage of any abortions (other than in cases of life endangerment by a physical condition, rape or incest) in any public plan made available. Briefly put, no woman purchasing the public plan will receive coverage for abortion.

Stupak-Pitts would allow:

• companies to sell, and nonsubsidized individuals to buy, supplemental coverage, i.e., “riders,” or complete coverage plans, that include broader abortion coverage, but only if two conditions are met:

o First, all administrative costs and services offered through those riders or plans must be paid for only with premiums collected for those plans. Companies that offer riders or plans that cover abortion would be forced to set up completely segregated financial, claims approval and payment systems for its riders or abortion covered plans versus its non-abortion covered plans.

o Second, companies also offer a non-abortion coverage plan as well, subjecting themselves to the financial segregation requirements and additional costs discussed above. In other words, companies that currently offer plans that cover abortion would only be able to participate in the exchange if they set up a duplicate company within the company to sell a non-abortion coverage plan.

In other words, any company that wants to offer individuals who are not receiving subsidies a plan in the exchange that covers abortions, industry standard in private plans today by the way, or a “rider” to cover abortions can only do so by incurring the additional costs of offering two plans that do not share any administrative costs or infrastructure. Much has been made of these provisions but in truth the conditions undermine any benefit they offer.

Real Life Market Impact:

In an “Analysis of the Implications of the Stupak/Pitts Amendment for Coverage of Medically Indicated Abortions,” the George Washington University School of Public Health and Health Services has stated that the size of the new market created by the exchange – estimated by the Congressional Budget Office to include 30 million people within six years of implementation -- “is large enough so that Stupak/Pitts can be expected to alter the ‘default’ customs and practices that guide the health benefits industry as a whole.” GWU Analysis, at 9. Two major impacts on the market are anticipated.

First, although most abortion plans currently cover abortion, the GWU experts expect that the health benefits industry will “drop [abortion] coverage in all markets in order to meet the lowest common denominator in both the exchange and expanded Medicaid markets.” Thus, not only will women purchasing coverage in the health exchange be left without abortion coverage, women who currently have coverage through employer sponsored plans will lose that coverage as well. Id. at 5-6 & 10-12.

Second, according to the GWU experts, the inability of companies to intertwine administration of plans that cover abortions with plans that don’t will “defeat the development of a supplemental coverage market for medically indicated abortions.” Id. at 1-2, 12. Indeed, in the five states that already ban coverage for most abortions in private plans, but allow insurers to offer additional abortion coverage through an additional rider requiring payment of an additional premium, see Restricting Insurance Coverage of Abortion, (Nov. 1, 2009 GUTTMACHER INSTITUTE) available at http://www.guttmacher.org/statecenter/spibs/spib_RICA.pdf, there is no evidence that riders are available. For example, the National Women’s Law Center reports that Blue Cross Blue Shield of North Dakota, which has 91% market share in the state fails to offer any optional riders for abortion coverage. Moreover, because most pregnancies are unplanned, it is at least unknown if not unlikely that women would plan ahead to purchase the additional rider.


Public Funding or an Abortion Discount?

Stupak-Pitts is being sold as a “simple” ban on federal funding for abortion consistent with the ban on federal funding for most abortions in the Hyde Amendment. See Appendix A below for a description of Government Restrictions on Coverage of Abortion Care. However, given the design of health care reform, I query whether there is any actual “funding” of abortion being prevented by Stupak-Pitts?

If health care reform created a single payer system, a Medicare-like program or maybe even a Medicaid program which outlines which services must be covered, then we could have an honest debate about whether that government payer should write the checks to medical providers of one of the most common forms of women’s reproductive health care there is – abortion.

For example, we could talk about how one in every three women will have an abortion in her reproductive life and why that is so; about unplanned pregnancy, contraceptive failure, and sex ed, etc..

We could talk about how a fast increasing percentage of women obtaining abortions, now over 60%, already have at least one child, and cite concerns about their ability to care for and nurture the children they have as a major factor in obtaining an abortion. We could talk about how women still bear the burdens of childrearing disproportionately with (with?) the biological fathers of the children.

We could talk about how 12% of women obtain abortions because of their own health and 13% obtain abortions because of concerns about the health of the fetus and argue about whether women deserve to have their reproductive organs cared for on an equal basis with men.

In other words, we could talk about whether and how abortion serves women’s interests in equality, liberty, and equal liberty, and whether the government has an obligation to insure that it treats women the same as men with respect to their health, not to mention with respect to their ability to maintain their dignity, to define what is sometimes called “the course of one’s existence.” We could argue about whether deciding not only whether or not to be a parent, read mother, but also whether deciding how to parent, read mother, is an integral part of determining the “course of one’s existence.”

And ultimately, we could argue whether a government interest in distancing itself from abortion, or even expressing its disapproval of abortion, is important, or compelling, enough to justify treating women differently with respect to their physical integrity and ability to safeguard their health, their decisional autonomy, their equal right to determine the course of their existence and maintain their dignity.

Okay. But whatever health care reform will end up being, it won’t be a single-payer system, and whatever Stupak-Pitts is, it is not, as Stupak claimed recently in an attempt to refute the George Washington University study, a simple extension of the Hyde Amendment – the ban on federal funding for most abortions. Given this, there are two serious problems with this so-called public funding justification.

First, when we buy health insurance plans that cover abortion care, from an actuarial perspective that plan should be less expensive than one that covers only prenatal care and delivery services. All but a tiny fraction of abortions – those performed in high risk situations in hospitals – are significantly less expensive than prenatal care and delivery and so they save insurers money.

Of course, this isn’t a reason to cover abortions. But it does mean that when we are talking about buying health insurance instead of paying directly for services, we aren’t really talking about “federal funding for abortions” at all. Really, we should be talking about whether or not the federal government wants to accept the abortion discount, not whether or not the federal government is going to pay for abortions.

Second, Stupak-Pitts claims as “federal funding” the subsidies offered through tax credits and disallows abortion coverage in plans purchased with these tax credits. This expanded definition of federal funding to include tax relief to middle-class families not only extends Hyde restrictions to a new population, it also potentially expands government control to other aspects of our lives? If these tax credits are federal funds that can be restricted, what about my child care credit, or my standard deduction for that matter, or the tax relief I get for my employer health plan? How far will anti-abortion advocates go in their efforts to stop women from obtaining abortions? If they can reach into private plans in the exchange, why can’t they restrict health insurance tax deductions to those who purchase private plans that don’t offer abortions? Well, that will be next.

Tune in tomorrow for a discussion of silver linings and the potential for a new equal protection challenge!


APPENDIX A: Government Restrictions on Coverage of Abortion Care:

Restrictions on Federal Coverage: The federal government already bans federal funding for abortion, except for in cases of life endangerment, or pregnancy based on rape or incest, as follows: . These bans prevent coverage for abortions for:
• Coverage for low-income women on Medicaid is prohibited pursuant to the “Hyde Amendment,” first enacted in 1977 and reenacted every year since;
• Coverage for federal employees, including women serving in the military, their spouses, and female dependents is prohibited; (the latest Senate appropriations bill would not renew this restriction, though the House bill would); and
• Coverage for prisoners in federal prisons is prohibited.
(For women in the military serving overseas, there is an additional wrinkle. Beyond their limited employee health insurance, many women serving overseas are hard pressed to obtain an abortion using their own private funds because the government prevents abortions from being performed in U.S. military medical facilities, even where the woman uses her own money. She would have to find a facility off-base that would perform the procedure. If she is serving in a country where abortion is illegal or severely restricted, as it is for example in Iraq and Afghanistan, this will prove impossible.)

Restrictions on State Coverage: At the state level, the picture is mixed:
• Coverage for low income women on Medicaid:
o Thirty-three states and the District of Columbia ban most Medicaid funding for abortion. (Thirty-two and D.C. follow the federal standard and cover abortions only where the pregnancy endangers the woman’s life, or where the pregnancy was caused by rape or incest; one provides even more limited coverage, funding abortions only where the pregnancy endangers the woman’s life. See State Funding of Abortion Under Medicaid, (Nov. 1, 2009 GUTTMACHER INSTITUTE) available at http://www.guttmacher.org/statecenter/spibs/spib_SFAM.pdf).
o Seventeen states cover all or most medically necessary abortions in their Medicaid program using state funds; four states do this voluntarily; the other 13 do so pursuant to a court order.
• Coverage for Public Employees: twelve states restrict abortion coverage in insurance plans for public employees of which:
o two prohibit insurance coverage of any abortions, even those which could kill the woman;
o three allow abortion coverage only when the pregnancy endangers the woman’s life;
o seven allow coverage only when the pregnancy endangers the woman’s life or in cases of rape, incest, or fetal abnormality.

Government Restrictions on Private Insurance

Less well known than the public funding restrictions is the fact that five states place restrictions on what private insurers can cover. Four states, Idaho, Kentucky, Missouri, and North Dakota allow coverage only where the pregnancy endangers the woman’s life; Oklahoma’s restrictions mirror the Hyde restrictions allowing coverage only where the pregnancy endangers the woman’s life or where the pregnancy results from rape and/or incest. See Restricting Insurance Coverage of Abortion, (Nov. 1, 2009 GUTTMACHER INSTITUTE) available at http://www.guttmacher.org/statecenter/spibs/spib_RICA.pdf.

Insurers are allowed but not required to offer additional abortion coverage through an additional rider requiring payment of an additional premium. In fact, there is no evidence that riders are available in the individual market in any of the five states that restrict coverage in private plans. For example, the National Women’s Law Center reports that Blue Cross Blue Shield of North Dakota, which has 91% market share in the state fails to offer any optional riders for abortion coverage. Moreover, because most pregnancies are unplanned, it is at least unknown if not unlikely that women would plan ahead to purchase the additional rider.

Labels: Stupak

Posted 9:27 PM by Priscilla J. Smith [link]

The Voting Rights Act's Secret Weapon?

Heather K. Gerken

There's a new paper up on SSRN that ought to be of interest to anyone who cares about the constitutionality of Section 5 of the Voting Rights Act. (In the interest of full disclosure, I should note that I supervised the paper, though the ideas are entirely the author's). Written by Travis Crum, it's the first sustained treatment of the "pocket trigger" or "bail-in" mechanism, a little-known provision of the Voting Rights Act that authorizes courts to subject jurisdictions that have discriminated against minority voters to the Section 5 "preclearance" process (described here).

The pocket trigger is interesting for two reasons. First, it could help protect Section 5 from constitutional invalidation when the next challenge occurs. Second, even if the Supreme Court struck down Section 5, the pocket trigger could provide a model for enacting a new Section 5 in the future.

For those who continue to think that Section 5 remains vulnerable to a constitutional challenge (an issue the Court ducked last Term), the pocket trigger might help alleviate some of the concerns the Court has raised about Section 5. Section 5 is vulnerable to constitutional challenge in large part because it covers some jurisdictions and not others . . . using a formula that dates back decades. The worry is that jurisdictions that ought to be covered are not (e.g., places with recent histories of racial discrimination that weren't included in the original formula) and that jurisdictions that should no longer be covered are still on the Section 5 list (e.g., places that discriminated in the past but look little different from non-covered jurisdictions today). Michael McDonald has suggested a proactive bailout of states that fall in the second category to address the second problem. The "pocket trigger" would address the first, pulling in bad actors that ought to be covered by Section 5 but aren't. One can imagine that if the two provisions were used in tandem during the next few years, mitigating both the underinclusion and overinclusion problems, supporters of the Act would have a stronger argument that the Act should withstand constitutional scrutiny the next time around.

Even if Section 5 doesn't survive its next trip to the Supreme Court, the pocket trigger is intriguing. One of the reasons that Congress didn't change the coverage formula when it last renewed Section 5 is that it’s hard to come up with a sensible -- and politically palatable -- formula to replace it. As Crum points out, the pocket trigger sidesteps that problem because it uses a trigger, not a formula, to determine which jurisdictions must comply with Section 5 and which need not. This type of approach might create a more flexible, dynamic preclearance process that should be less vulnerable to constitutional challenge than the current regime.


Posted 2:50 PM by Heather K. Gerken [link]