Jonathan Chait, a smug, center-left blogger of some note among Democrats and moderates, recently weighed in on the Democratic primary. The article, with the self-congratulatory title “The Case Against Bernie Sanders” is worth exploring in some detail because of its bad logic, exaggerated arguments, and extreme cynicism. Ultimately, no one should be convinced by his “case.”
Nina Totenberg and others reported in NPR’s health blog Sunday that the Supreme Court is very soon to hand down its decision in the controversial case of the Affordable Care Act. Indeed, it appears the decision has been scheduled to be given on Thursday. At issue are four distinct questions. The first was whether the suit, brought by 20 states against the federal government, can even be decided now by the Court since an 1867 law regarding taxes might be prohibitive. It appears to be the case that the justices feel that they can. The second, and most interesting to me and it seems most other people, is whether the so-called “individual mandate” provision to purchase health insurance or be assessed a fine is allowed by Congress’s broad powers to regulate interstate commerce. The third concerns whether a vast expansion of Medicaid mandated by the law is impermissably coercive on the states, who bear the responsibility of that program’s administration. Finally, the fourth is the resulting question of severability: if any part of the law should be found to be unconstitutional, how much of the rest of the law can be permitted to stand?
I wrote much earlier this year, among other things, about how this decision will be both interesting and significant. At first I thought I would wait until the ruling to talk about the case in any detail, but instead I’ll now attempt to predict how the Court will rule on this question and analyze a few other significant rulings handed down this week.
I wrote last week about the controversy over the administration’s rule that originally mandated Catholic-affiliated institutions provide their employees with insurance that covers contraceptives, which was later revised under a hail of holy bullets to require the insurance companies themselves to provide contraceptives directly to employees of impacted organizations. This compromise seemed so reasonable that I expected the issue to go away quickly. In fact, according to Joan Walsh, a host of Catholic organizations approved of the altered rule, “including the Catholic Health Association, Association of Jesuit Colleges and Universities and Catholic Charities USA,” and only the bishops remain steadfast in their condemnation. According to their statement, issued shortly after word of the change was announced eight days ago, “the only complete solution to this religious liberty problem is for HHS to rescind the mandate of these objectionable services.” That seems to imply they want the rule to go away for everyone, not just Catholics. I’m as surprised as I am sure you are to learn the Catholic church might suggest something that seems on it’s face to be a ridiculous idea.
Actually, it isn’t just the bishops who persist in maintaining opposition to the contraception rule. Perhaps enabled by the continuing attacks from the Catholic church, the republicans have continued to take to the media to push back. Sean Hannity assembled an all-male panel of religious figures the night of the announcement, who compared the administration to Nazi Germany and claimed they would go to prison or even sacrifice their lives over “the war on religion.” (John Stewart’s excellent take on this panel is a must-watch.) Last Thursday, Foster Friess, who probably sacrificed a lucrative franchise of fast food joints named after himself to instead become a millionaire mutual fund owner and a Rick Santorum supporter and bankroller, told MSNBC that back in his day, “they used Bayer aspirin for contraceptives. The gals put it between their knees, and it wasn’t that costly.”
I didn’t really want to weigh in on the recent scandal about forcing Catholic-run institutions, like universities and health charities, to provide birth control to women. But it turns out this is a thorny issue that has gotten a lot of press, and most of it seems subpar. If you want a job done right…
The issue is that the Catholic church has a religiously based objection to birth control: its official policy is that “any action which, either in anticipation of the conjugal act [sexual intercourse], or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible” is “sinful” on the basis that it “is in conflict with God’s laws.” I will not address this position on its merits because it has none, so instead, let us assume it is a fact and proceed.
The first amendment is quite clear that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” and religious freedom is one of the most jealously defended rights in America. Forcing a religious establishment to engage in behaviour that it finds to be “sinful” and “in conflict with God’s laws” clearly seems to make difficult the free exercise of not engaging in sin and following God’s laws. One counterargument is that no one is forcing Catholic women to use birth control, and that it should be up to them to do the honourable, guilty Catholic thing and bring that damned accident to term (read: post-collegiate job interviews); but in practice, given that a vast majority of Catholics use birth control despite its sinful nature, the church will end up directly paying for something it finds abominable under this rule. That means individual pharmacists filling prescriptions for the morning-after pill against their consciences, to say nothing of selling condoms and the pill to insured employees, etc. So I understand the rancor.
But consider the flip side of this argument. The first amendment prohibits any law “respecting an establishment of religion” too. Allowing a special exemption to a rule the rest of America has to follow on the basis of a religious belief seems as much a violation of the first amendment as the requirement was in the first place. Salon‘s Joan Walsh recently articulated a point that had occurred to me as well: suppose the Catholics had objections against child labour and occupational safety laws, to use her example. Would we then similarly grant them an exemption and let their altar boys into the coal mines? Then again, juvenile coal mining would never be an issue, since the same bishopric now crying foul about sinful behaviour have been putting those altar boys to a very different kind of use for the last few decades.
In response to the loud whining about this rule leveled not just by the child-molesting, latin-chanting, zombie-worshiping monotheists, but also by leading republicans (including Rick Santorum and the House Speaker), the Obama administration has changed the rule: now objecting organizations need not provide coverage, and instead women can get it directly from insurance providers. This strikes me as a reasonable compromise, except that, as NPR points out, many Catholic organizations are self-insured, meaning the rule change has no effect for them. And as that same NPR piece documents, not all Catholics are placated by this choice. Indeed, Rick Santorum still maintains that birth control shouldn’t even be a health insurance issue since it is comprised of “relatively small expenditures.” Nothing like Viagra, right Rick?
Really, this issue serves to underscore how unworkable partial health regulation is. Obamacare is the underlying justification for this rule, but if the administration really wanted to ensure health access, it would have demanded stricter legislative regulation on coverage if not a public option outright. Then the answer to this and related dilemmas wouldn’t be a change of the rule, but an option to abandon Catholic coverage entirely. By leaving health care to the private sector, there is still every possibility that market forces will leave gaps in coverage that government insurance would not abide. Of course the question remains whether a public option as a coequal to the private options could be competitive without being an unsustainable subsidy. The question of Obamacare generally is one I plan to explore iff it survives its pending Supreme Court challenge to be argued next month. Stay tuned.