New York Times
June 28, 2012
Supreme Court Upholds Health Care Law, 5-4, in Victory for Obama
By ADAM LIPTAK
WASHINGTON — The Supreme Court on Thursday upheld President Obama’s health care overhaul law, saying its requirement that most Americans obtain insurance or pay a penalty was authorized by Congress’s power to levy taxes. The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four more liberal members.
The decision was a victory for Mr. Obama and Congressional Democrats, affirming the central legislative achievement of Mr. Obama’s presidency.
“The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” Chief Justice Roberts wrote in the majority opinion. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
At the same time, the court rejected the argument that the administration had pressed most vigorously in support of the law, that its individual mandate was justified by Congress’s power to regulate interstate commerce. The vote was again 5 to 4, but in this instance Chief Justice Roberts and the court’s four more conservative members were in agreement.
The court also substantially limited the law’s expansion of Medicaid, the joint federal-state program that provides health care to poor and disabled people. Seven justices agreed that Congress had exceeded its constitutional authority by coercing states into participating in the expansion by threatening them with the loss of existing federal payments.
Justice Anthony M. Kennedy, who had been thought to be the administration’s best hope to provide a fifth vote to uphold the law, joined three more conservative members in an unusual jointly written dissent that said the court should have struck down the entire law. The majority’s approach, he said from the bench, “amounts to a vast judicial overreaching.”
The court’s ruling was the most significant federalism decision since the New Deal and the most closely watched case since Bush v. Gore in 2000. It was a crucial milestone for the law, the Patient Protection and Affordable Care Act of 2010, allowing almost all — and perhaps, in the end, all — of its far-reaching changes to roll forward.
Mr. Obama welcomed the court’s decision on the health care law, which has inspired fierce protests, legal challenges and vows of repeal since it was passed. “Whatever the politics, today’s decision was a victory for people all over this country whose lives are more secure because of this law,” he said at the White House.
Republicans, though, used the occasion to attack it again.
“Obamacare was bad policy yesterday; it’s bad policy today,” Mitt Romney, the presumptive Republican presidential nominee, said in remarks near the Capitol. “Obamacare was bad law yesterday; it’s bad law today.” He, like Congressional Republicans, renewed his pledge to undo the law.
The historic decision, coming after three days of lively oral arguments in March and in the midst of a presidential campaign, drew intense attention across the nation. Outside the court, more than 1,000 people gathered — packing the sidewalk, playing music, chanting slogans — and a loud cheer went up as word spread that the law had been largely upheld. Chants of “Yes we can!” rang out, but the ruling also provoked disappointment among Tea Party supporters.
In Loudoun County, Va., Angela Laws, 58, the owner of a cleaning service, said she and her fiancé were relieved at the news. “We laughed, and we shouted with joy and hugged each other,” she said, explaining that she had been unable to get insurance because of her diabetes and back problems until a provision in the health care law went into effect.
After months of uncertainty about the law’s fate, the court’s ruling provides some clarity — and perhaps an alert — to states, insurers, employers and consumers about what they are required to do by 2014, when much of the law comes into force.
The Obama administration had argued that the mandate was necessary because it allowed other provisions of the law to function: those overhauling the way insurance is sold and those preventing sick people from being denied or charged extra for insurance. The mandate’s supporters had said it was necessary to ensure that not only sick people but also healthy individuals would sign up for coverage, keeping insurance premiums more affordable.
Conservatives took comfort from two parts of the decision: the new limits it placed on federal regulation of commerce and on the conditions the federal government may impose on money it gives the states.
Five justices accepted the argument that had been at the heart of the challenges brought by 26 states and other plaintiffs: that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want. That was a stunning victory for a theory pressed by a small band of conservative and libertarian lawyers. Most members of the legal academy view the theory as misguided,if not frivolous.
“To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce,” Chief Justice Roberts wrote. “But the distinction between doing something and doing nothing would not have been lost on the framers, who were practical statesmen, not metaphysical philosophers.”
Justice Ruth Bader Ginsburg, in an opinion joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, dissented on this point, calling the view “stunningly retrogressive.” She wondered why Chief Justice Roberts had seen fit to address it at all in light of his vote to uphold the mandate under the tax power.
Akhil Reed Amar, a Yale law professor and a champion of the health care law, said that it was “important to look at the dark cloud behind the silver lining.”
“Federal power has more restrictions on it,” he said, referring to the new limits on regulating commerce. “Going forward, there may even be laws on the books that have to be re-examined.”
The restrictions placed on the Medicaid expansion may also have significant ripple effects. A splintered group of justices effectively revised the law to allow states to choose between participating in the expansion while receiving additional payments or forgoing the expansion and retaining the existing payments. The law had called for an all-or-nothing choice.
The expansion had been designed to provide coverage to 17 million Americans. While some states have indicated that they will participate in the expansion, others may be resistant, leaving more people outside the safety net than the Obama administration had intended.
Although the decision did not turn on it, the back-and-forth between Justice Ginsburg’s opinion for the four liberals and the joint opinion by the four conservatives — Justice Kennedy and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — revisited the by-now-familiar arguments. Broccoli made a dozen appearances.
“Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so,” Justice Ginsburg wrote. “And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price.”
The conservative dissenters responded that “one day the failure of some of the public to purchase American cars may endanger the existence of domestic automobile manufacturers; or the failure of some to eat broccoli may be found to deprive them of a newly discovered cancer-fighting chemical which only that food contains, producing health care costs that are a burden on the rest of us.”
All of the justices agreed that their review of the health care law was not barred by the Anti-Injunction Act, which allows suits over some sorts of taxes only after they become due. That could have delayed the health care challenge to 2015. The conservative dissenters said that the majority could not have it both ways by calling the mandate a tax for some purposes but not others.
“That carries verbal wizardry too far, deep into the forbidden land of sophists,” they said.
As a general matter, Chief Justice Roberts wrote that the decision in the case, National Federation of Independent Business v. Sebelius, No. 11-393, offered no endorsement of the law’s wisdom.
Some decisions, the chief justice said, “are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them.”
Justice Ginsburg, speaking to a crowded courtroom that sat rapt for the better part of an hour, drew a different conclusion.
“In the end,” she said, “the Affordable Care Act survives largely unscathed.”
Reporting was contributed by John H. Cushman Jr., Robert Pear, John Schwartz, Ethan Bronner and Sabrina Tavernise.
John Nichols, The Nation, March 27, 2012
It would seem that the majority on the US Supreme Court is conflicted about how to respond to the healthcare reform currently known as "Obamacare."
CNN's legal correspondent Jeffrey Toobin listened to the high court's deliberations this week and concluded that "this was a train wreck for the Obama administration. This law looks like it's going to be struck down."
Not so fast, suggests the Wall Street Journal, which like most media pins the outcome on Justice Anthony "Swing" Kennedy. "Justice Kennedy's early comment that the government carried a 'heavy burden of justification' showed considerable sympathy for the challengers," observed the Journal Tuesday. "But toward the end, one of his questions suggested that people who don’t carry health insurance are still engaged in the healthcare market—which is the central pillar of the government's case."
It's all so confusing. Or maybe not.
It is obvious enough that the barely cloaked political partisans who dominate the court would like very much to whack the Democratic president by declaring that critical components of his Patent Protection and Affordable Care Act—or, to borrow Vice President Biden's technical terminology: Barack Obama's "BFD"—are unconstitutional.
By the same token, the justices know that their conservative movement's paymasters in the insurance and healthcare industries, and on Wall Street, are actually looking foward to the day when the government requires Americans to purchase insurance from for-profit insurance companies, and when Washington steps in as the guarantor of payments to those companies (and to for-profit healthcare concerns) on behalf of low-income Americans.
Tough call, indeed.
It is usually smart when such conflicts arise to bet on the corporate crowd, as they really do call most of the shots.
But on the outside chance that the court goes rogue—as some analysts are suggesting after two days of hearings on the plan that was approved by Congress and signed into law by the president—is that the end of healthcare reform?
Frankly, it could be the beginning.
It is not like a decision by the Supreme Court to scrap all or part of the current plan is going to make the crisis facing America's dysfunctional healthcare "system" go away. In all likelihood, it would cause the crisis to become even more of, well, a crisis.
By the same token, allowing the Obama plan to go forward in its current form—without the protection that would have been afforded by a public option—is not going to solve nearly as many of the plan's problems as its more starry-eyed proponents might imagine. Indeed, one of the selling points for the Obama plan when progressives were gritting their teeth and deciding to support what was clearly a compromise was the understanding that the Patiet Protection and Affordable Care Act was a beginning, not an end.
The end has always, and should always, be the single-payer "Medicare for All" plan that would provide quality care for all Americans—as a right—and cut costs by eliminating the profiteers.
So how, amid all the legal wrangling of the moment, should real reformers think about things?
“Whether the Court overturns part or all of the law, or the Affordable Care Act remains fully intact, we will not have universal coverage, medical bills will still push too many Americans into bankruptcy or prompt them to self-ration care, and insurance companies will continue to have a choke hold on our health,” says Deborah Burger, RN, a co-president of the 170,000-member National Nurses United union.
NNU, a union that represents frontline healthcare providers—and that has taken then lead when it comes to real reform—offers a savvy response to the hyperbole that's coming from in and around the Supreme Court chambers this week:
Despite its name the Affordable Care Act has done little to actually make healthcare affordable. Out of pocket health costs for families continue to soar. Nurses now routinely see patients who have postponed needed care, even when it might be life saving, because of the high co-pays and deductibles.
Delayed dental care illustrates the problem. A February Pew Center report noted a 16 percent jump in the number of Americans heading to emergency rooms for routine dental problems, at a cost of 10 times more than preventive care with fewer treatment options than a dentist's office.
Premiums have jumped 50 percent on average the past seven years, according to a Commonwealth Fund report last November, with more than six in 10 Americans now living in states where their premiums consume a fifth or more of median earnings.
Medical bills for years have been the leading cause of personal bankruptcy. Increasingly they ruin people’s credit as well. Another Commonwealth Fund report earlier this month found that 30 million Americans were contacted by collection agencies in 2010 because of medical bills.
Fifty million still have no health coverage. Another 29 million are under insured with massive holes in their health plans, up 80 percent since 2003, according to the journal Health Affairs.
The percentage of adults with no health insurance at 17.3 percent in the third quarter of 2011 was the highest on record, up from 14.4 percent just three years earlier, Gallup reported.
On quality, the U.S. continues to lag far behind other nations. Two breathtaking examples:
More than 80 percent of U.S. counties trail life expectancy rates of nations with the best life expectancies, the University of Washington found last June. Some U.S. counties are more than 50 years behind their international counterparts.
The U.S. ranks just 41st in the world in death rates for child bearing women, and it has been getting worse, according to the World Health Organization. The average mortality rate within 42 days of childbirth has doubled in two decades, partly due cuts in federal spending for maternal and child health programs the past seven years.
Our economic meltdown has exacerbated the crisis. For the past year, nurses have seen a spike in health woes associated with job loss, high medical bills, poor nutrition and other economic factors. These include stress-induced heart ailments in younger patients, hypertension, anxiety and “gut” disorders.
“More handouts to the private insurers and other healthcare corporations will not improve these dreadful statistics,” says Burger. “The choke hold on our health by the same Wall Street types who tanked our economy is exactly what has caused the falling health barometers on access, quality, and cost.”
"The consequences of the denial of care en masse—now and in the future, with or without the ACA—could not be more ominous, explains NNU co-president Jean Ross." Only more comprehensive reform, Medicare for Life, for all Americans, will finally produce real healthcare security for our country."
Saturday, April 14, 2012
Ramada Plaza Hotel and Conference Center
Conference Theme: Healthcare for the 99% - Overcoming Roadblocks to a Basic Human Right
Keynote Speaker: Joe Brewer - Founder and Director of Cognitive Policy Works, Project Coordinator for the Seattle Innovators, Former Fellow of George Lakoff's Rockridge Institute. Click here to view the full conference brochure and mail-in registration form, which can be downloaded for printing. Click here if you prefer to register and pay online.
Rick Ungar, Contributor
I cover the public health care policy beat
Forbes, 1/17/2011 @ 9:08PM |211,388 views
The ink was barely dry on the PPACA when the first of many lawsuits to block the mandated health insurance provisions of the law was filed in a Florida District Court.
The pleadings, in part, read -
The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage.
State of Florida, et al. vs. HHS
It turns out, the Founding Fathers would beg to disagree.
In July of 1798, Congress passed – and President John Adams signed - “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.
Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.
And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.
Here’s how it happened.
During the early years of our union, the nation’s leaders realized that foreign trade would be essential to the young country’s ability to create a viable economy. To make it work, they relied on the nation’s private merchant ships – and the sailors that made them go – to be the instruments of this trade.
The problem was that a merchant mariner’s job was a difficult and dangerous undertaking in those days. Sailors were constantly hurting themselves, picking up weird tropical diseases, etc.
The troublesome reductions in manpower caused by back strains, twisted ankles and strange diseases often left a ship’s captain without enough sailors to get underway – a problem both bad for business and a strain on the nation’s economy.
But those were the days when members of Congress still used their collective heads to solve problems – not create them.
Realizing that a healthy maritime workforce was essential to the ability of our private merchant ships to engage in foreign trade, Congress and the President resolved to do something about it.
Enter “An Act for The Relief of Sick and Disabled Seamen”.
I encourage you to read the law as, in those days, legislation was short, to the point and fairly easy to understand.
The law did a number of fascinating things.
First, it created the Marine Hospital Service, a series of hospitals built and operated by the federal government to treat injured and ailing privately employed sailors. This government provided healthcare service was to be paid for by a mandatory tax on the maritime sailors (a little more than 1% of a sailor’s wages), the same to be withheld from a sailor’s pay and turned over to the government by the ship’s owner. The payment of this tax for health care was not optional. If a sailor wanted to work, he had to pay up.
This is pretty much how it works today in the European nations that conduct socialized medical programs for its citizens – although 1% of wages doesn’t quite cut it any longer.
The law was not only the first time the United States created a socialized medical program (The Marine Hospital Service) but was also the first to mandate that privately employed citizens be legally required to make payments to pay for health care services. Upon passage of the law, ships were no longer permitted to sail in and out of our ports if the health care tax had not been collected by the ship owners and paid over to the government – thus the creation of the first payroll tax in our nation’s history.
When a sick or injured sailor needed medical assistance, the government would confirm that his payments had been collected and turned over by his employer and would then give the sailor a voucher entitling him to admission to the hospital where he would be treated for whatever ailed him.
While a few of the healthcare facilities accepting the government voucher were privately operated, the majority of the treatment was given out at the federal maritime hospitals that were built and operated by the government in the nation’s largest ports.
As the nation grew and expanded, the system was also expanded to cover sailors working the private vessels sailing the Mississippi and Ohio rivers.
The program eventually became the Public Health Service, a government operated health service that exists to this day under the supervision of the Surgeon General.
So much for the claim that “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty….”
As for Congress’ understanding of the limits of the Constitution at the time the Act was passed, it is worth noting that Thomas Jefferson was the President of the Senate during the 5th Congress while Jonathan Dayton, the youngest man to sign the United States Constitution, was the Speaker of the House.
While I’m sure a number of readers are scratching their heads in the effort to find the distinction between the circumstances of 1798 and today, I think you’ll find it difficult.
Yes, the law at that time required only merchant sailors to purchase health care coverage. Thus, one could argue that nobody was forcing anyone to become a merchant sailor and, therefore, they were not required to purchase health care coverage unless they chose to pursue a career at sea.
However, this is no different than what we are looking at today.
Each of us has the option to turn down employment that would require us to purchase private health insurance under the health care reform law.
Would that be practical? Of course not – just as it would have been impractical for a man seeking employment as a merchant sailor in 1798 to turn down a job on a ship because he would be required by law to purchase health care coverage.
What’s more, a constitutional challenge to the legality of mandated health care cannot exist based on the number of people who are required to purchase the coverage – it must necessarily be based on whether any American can be so required.
Clearly, the nation’s founders serving in the 5th Congress, and there were many of them, believed that mandated health insurance coverage was permitted within the limits established by our Constitution.
The moral to the story is that the political right-wing has to stop pretending they have the blessings of the Founding Fathers as their excuse to oppose whatever this president has to offer.
History makes it abundantly clear that they do not.
UPDATE: January 21- Given the conversation and controversy this piece has engendered, Greg Sargent over at The Washington Post put the piece to the test. You might be interested in what Greg discovered in his article, “Newsflash: Founders favored government run health care.”
Contact Rick at email@example.com
Published on Friday, December 23, 2011 by In These Times
With a raft of new Charles Dickens biographies hitting bookstores this fall, it is difficult not to quote the classic chronicler of the Victorian era's polarities when describing the state of America's healthcare system: "It was the best of times, it was the worst of times.”
The good times are concentrated among corporate executives. Healthcare, insurance and drug company CEOs have actually managed to displace bankers as the best-rewarded bosses in America. The Guardian archly reported recenty: "Pity Wall Street's bankers. Once the highest-paid bosses in the land, they are now also-rans. The real money is in healthcare and drugs, according to the latest survey of executive pay."
Among the big winners in healthcare listed by the UK-based newspaper:
John Hammergren, chief executive of McKesson Corporation, a pharmaceutical distribution corporation, took home a breathtaking $145,266,971 in 2010.
- Joel Gemunder, outgoing president of Omnicare, a pharmacy company that dispenses drugs in nursing homes, benefited handsomely from s 2010 total pay package worth $98,283,242.
- “CVS Caremark, which operates 7,000 pharmacies across the US, awarded chief executive Thomas Ryan $68,079,823 in 2010.
- Ronald Williams, boss of health insurance giant Aetna, made $57,787,786 in 2010.
But for America’s healthcare consumers, the bad times got worse. Despite the slow-moving implementation of the 2010 Patient Protection and Affordable Care Act (PPACA), the system’s vital signs indicated critical condition:
- 53 million Americans are now uninsured, up from 34 million in 1990.
- As many as 82,000 Americans die annually due to a lack of access to healthcare, according to a new Commonwealth Fund study that roughly doubles the previous estimate.
- 62% of personal bankruptcies are accounted for by an unaffordable stack of medical bills brought on by a family members’ health crisis.
Sweeping cuts in Medicaid by U.S. governors threaten to throw more people, including children, into icy uninsured waters. For example, Wisconsin Gov. Scott Walker is aiming to slice Medicaid rolls by 65,000, including 30,000 children.
Healthcare insurance has become so expensive that Americans have cut back on their visits to doctor’s offices by 17 percent, even as a growing share of Americans admit that they have skipped needed medical care because high-cost, high-deductible plans continue to proliferate.
But even with the implementation of state-level healthcare exchanges under the PPACA (aka, “Obamacare”), don’t expect much improvement except in curbing the most egregious abuses of insurers, warns Dr. Don McCanne, senior health policy fellow of the Physicians for a National Healthcare Programs.
Once the exchanges are in place in 2014, moderate-income Americans are certain to find themselves ensnarled in fights with the IRS over the proper level of subsidies they need to pay for a level of healthcare insurance that many doctors consider “skimpy."
Until the point where the inadequacy of PPACAA’s coverage becomes clear and Americans grow infuriated over fighting to pay for inadequate coverage., we seem destined for several more years of "unaffordable under-insurance," as McCanne told In These Times earlier this month. When frustration over the new status quo boils over, Americans will be ready to have a serious debate about the single-payer "Medicare for all” plan that replaces for-profit insurers.
Street Speech, The Voice from the Streets of Columbus, Dec 2-15, 2011
The New Homeless, by Eileen Hiltbrand, Street Speech vendor
Before I became homeless my vision of the homeless was that of a scraggly man with a bottle of cheap booze wrapped in a paper bag, begging for spare change and sleeping under a bridge. Oh how experiences can change one's perspective.
I am homeless. I have a college degree in business and in which I graduated Summa Cum Laude from the Ohio State University. I also have a Doctorate in which I graduated Cum Laude. You wouldn't picture me as "one of those homeless people." Yet I am.
There are many of me out here. We sell these papers to keep a roof over our heads, provide the basics that we all need on a daily basis, or to pay our medical needs and co-pays. That's not to say that some of us aren't those "scraggly men" who live under a bridge. Please don't assume, however, that the image of the "scraggly man" represents the whole of us.
Each of us are unique and different as to what brought us into homelessness. In my case, I developed heart problems/failures in March of 2005. Six weeks later, I woke up from a coma owing $1.2 million for healthcare. Thereafter, I lost my house and subsequently a condo that I rented. Although I had health insurance my entire life, United Health Care denied my claims and I was too sick, and they were too big for me to fight. Ergo, I found myself homeless.
I won't go into details about the basements, carports, etc. into which I crawled to find a warm place to sleep. Needless to say, those of us who are homeless are not all derelicts, drunks, or crack-heads.
Let me just say thank-you for purchasing our papers when you see us standing out on these street corners. I can only speak for myself but it means the world and my life to me. Thank you.
About Street Speech
Street Speech is a monthly social justice newspaper, published by the Columbus Coalition for the Homeless since March 2008. Street Speech serves as a voice for the most vulnerable in our community by publishing articles and creative writing by currently and formerly homeless individuals and by educating the community about the issues facing homeless persons in Columbus
By Sarah Kliff, Washington Post
Published: November 23
President Obama’s top Medicare official has resigned in the face of Republican pledges to block his confirmation in the Senate.
Center for Medicare and Medicaid Services Administrator Donald M. Berwick notified colleagues Wednesday that he will step down Dec. 2, nearly a month before the expiration of his recess appointment.
The White House will nominate Marilyn Tavenner, Medicare’s deputy administrator, as his replacement.
“Don Berwick did outstanding work at CMS,” White House deputy press secretary Jamie Smith said Wednesday. “It’s unfortunate that a small group of senators obstructed his nomination, putting political interests above the best interests of the American people.”
Obama nominated Berwick to run Medicare in April 2010. In July 2010, with no confirmation hearing scheduled, the president appointed him to the job while Congress was in recess. As a recess appointment, Berwick’s term was to expire Dec. 31. Earlier this year, 42 Republican senators signed a letter pledging to block his confirmation, effectively ending any chance of him serving beyond 2011.
“It was a mistake to recess-appoint him,” said Sen. John Barrasso (R-Wyo.), who has been a vocal Berwick critic. “He was the wrong person for the job, and I think it was wrong of the president to make an end run around Congress.”
A Harvard-educated pediatrician, Berwick won accolades and the endorsements of major health-care groups for his academic work, which focused on reducing the cost of care while improving quality and patient experience.
Republicans, however, seized on remarks he made praising Britain’s National Health Service as an “example” for the United States to follow. Many accused him of supporting the “rationing” of services, a claim Berwick has rejected.
“Every bone in my body, as a physician, even as a person, is to get everything [patients] want and need and to help them at every step,” he told The Washington Post in an interview this summer. “I have gone to the mat to get a last-ditch bone marrow transplant for a child with leukemia .?.?. and they are telling me I'm rationing? They haven’t met me.”
In his 18-month tenure, Berwick oversaw the rollout of crucial health reform regulations that stand to reshape both the private insurance market and the Medicare program. His agency drafted rules for the new health insurance marketplaces, called exchanges, where Americans will be able to compare and buy health insurance plans in 2014.
Berwick also weathered an aggressive backlash to his draft rules for Accountable Care Organizations, a pilot program that is meant to move Medicare away from paying doctors for the volume of services they provide and toward reimbursements based on quality of care. Medical groups reacted much more positively to the final regulations for that program.
Republicans have responded cautiously to the White House’s nomination of Tavenner, a former nurse and hospital administrator who has served in the Obama administration since February 2010. She was Virginia’s secretary of health and human resources under then-Gov. Tim Kaine (D).
In announcing her nomination, the White House highlighted Tavenner’s nearly 35-year health-care career, “including almost 20 years in nursing, 3 years as a hospital CEO and 10 years in various senior executive level positions for Hospital Corporation of America.”
Sen. Orrin Hatch (R-Utah), ranking member of the Senate Finance Committee, said, “Republicans on the Finance Committee look forward to examining her record and gaining an understanding of her views of Medicare, Medicaid and the president’s health law.”
Published: Thursday, November 10, 2011, 5:15 AM Updated: Thursday, November 10, 2011, 8:02 AM
"In the short term, not a lot," said Matt Albers, a health care lawyer with the Cleveland office of Vorys, Sater, Seymour and Pease who has studied the amendment but did not take a position during the debate on the issue.
Supporters of Issue 3 cheered it as a repudiation of President Barack Obama's health care policy.
But experts like Albers agree that the issue will have no impact on the legal tussle in federal courts over the new federal health care law, although it will prevent Ohio from enacting its own Massachusetts-style law.
Beyond that, there's plenty of disagreement over whether the broadly worded amendment will invite lawsuits, lead to confusion and interfere with the state's powers to protect public health and regulate the medical and insurance industries.
Denny Recker, the legislative chair for the Ohio Association of Health Underwriters, said the amendment "creates as many questions as it answers" but does not alter deadlines for Ohio that are "looming very quickly" under the new federal law.
On Tuesday, a District of Columbia federal appeals court became the latest to uphold the Affordable Care Act, which opponents refer to as Obamacare. The court ruled that the law's requirement that most Americans get health insurance is constitutional.
Federal judges in two states have found the law unconstitutional while three others have upheld it. Most legal experts expect the law to eventually land in front of the U.S. Supreme Court.
"Issue 3 will have no ability to forestall the federal legislation if it passes muster," Albers said. "It's really sort of an internal state decision not to go forward with a state-level mandated health insurance program."
In other words, voters have tied the hands of Ohio lawmakers looking to move the state to a Massachusetts-style system -- a remote possibility now with a Republican-dominated legislature.
Other legal experts who opposed the legislation, such as Case Western Reserve University law professor Max Mehlman, see troubling consequences. The amendment bans new health care mandates passed after March 19, 2010, which has the effect of freezing laws or rules made before that date.
Mehlman says that jeopardizes more recent changes to state law such as restrictions on late-term abortions signed into law recently by Gov. John Kasich. Under the amendment, no law could prohibit the purchase of health care except in cases to deter fraud or wrongdoing.
So could getting an abortion be considered the purchase of health care?
Kellie Copeland, head of the Ohio chapter of the National Abortion Rights Action League, said her group is studying the amendment to see if it could be used to overturn the recent restrictions.
"We are absolutely looking at it," Copeland said. "We believe that the late-term abortion ban poses a danger to Ohio women because it doesn't have adequate health exceptions, and this may provide an opportunity to go after it."
Maurice Thompson, head of the 1851 Center for Constitutional Law and the author of Issue 3, said state lawmakers probably will end up enacting legislation saying abortion doesn't fit the definition of health care to head off such a suit.
"I think there will be clamor with the abortion issue to make it clear," Thompson said. "Somebody on the left could very well decide to run it up the flagpole."
Other future medical regulations could be affected, such as new immunizations the state health department wants to mandate or new ways the state medical board might want to regulate the doctor-patient relationship, according to Mehlman.
"My hope is that people would not challenge actions that would be clearly in the public benefit, but libertarians could certainly sue to stop new vaccination programs if they wished," Mehlman said.
Thompson said the state health department would still hold broad powers to protect the public health but would be barred from imposing immunization mandates that weren't absolutely necessary.
Albers said the amendment's broad language makes it certain to be batted around by the courts in a number of different cases.
"It's open to significant amounts of interpretation, so it's difficult to say what the long-term impact will be," he said.
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FOR IMMEDIATE RELEASE:
Single-Payer Action Network Ohio Disappointed But Undeterred by Passage of State Issue 3
Columbus, Ohio – November 15, 2011 - On Tuesday November 8, 2011 Ohio voters approved Issue 3, the so-called health care freedom amendment to the Ohio constitution.
Single Payer Action Network Ohio (SPAN Ohio) was disappointed by the passage of Issue 3 but will not be deterred from our goal of comprehensive lifetime health care for all. Our educational and public policy organizing efforts continue unabated.
Issue 3 was aimed at the Patient Protection and Affordable Care Act (PPACA) passed by Congress in 2010 but is expected to negatively affect many health care programs in Ohio as was made clear by the almost universal condemnation of the proposal by newspaper editorial boards across the political spectrum.
Issue 3’s impact on the provision of health care in Ohio will be determined in large part by the outcome of constitutional challenges to federal health care reform now moving through the courts. The US Supreme Court will ultimately decide the issue.
Regardless of their decision, SPAN Ohio will continue its efforts to educate the state legislature and the public at large on the need for a single-payer health care system as the most efficient means of providing every Ohioan with what is a basic human necessity.
Kurt Bateman, Director
Single Payer Action Network Ohio
The Healthcare Movie, a documentary film narrated by Keifer Sutherland, will be shown across the state wherever we can gather a group. The film deals with the ways in which the U.S. and Canadian healthcare systems diverged over the past half century and how cultural perceptions can be changed to improve the provision of care. So organize a potluck at a space in your community where the film can be played from DVD and projected with an adequate audio system. The film runs about one hour and discussion will follow. In addition, there will be an opportunity to participate in the Healthcare Human Rights Collaboration picture petition and obtain copies of the official Healthcare for All Ohioans Act petitions for circulation. To preview a trailer for the movie go to: http://www.healthcaremovie.net/. Contact SPAN State Director Kurt Bateman to schedule your screening today! Phone 614-562-1066 or email firstname.lastname@example.org.