When FDR created Social Security, his labor secretary feared the court would reject it—until a justice told her over dinner that framing it as a tax could save it. By Jonathan Alter
Could a 1934 Washington dinner party hold the key to Chief Justice John Roberts’ landmark decision on the Affordable Care Act?
Former Secretary of Labor Frances Perkins talks to reporters in New York on Nov. 27, 1945. (Harry Harris / AP Photo)
In late 1934, President Franklin D. Roosevelt had been in office more than a year and decided to move forward on what would become his greatest domestic achievement: Social Security. He assigned his secretary of labor, Frances Perkins, the first woman ever to serve in the Cabinet, to lead the way on designing the program.
But Perkins was worried. The Supreme Court was moving toward a narrow interpretation of the Commerce Clause that would invalidate many of the great achievements of the New Deal. Soon that would include the National Recovery Act, the capstone of FDR’s famous First Hundred Days in 1933.
(It would be another four years before Justice Owen Roberts—no relation—would famously switch sides and the Court would begin reversing itself, partly in response to FDR’s 1937 “court packing” scheme.)
Perkins went to dinner at the home of someone lost to history and recalls in her memoirs that she bumped into Justice Harlan Fiske Stone there.
When Perkins expressed worry about whether an old-age and survivors insurance program would pass constitutional muster, Stone, a Republican appointee to the court and future chief justice, replied: “The taxing power of the federal government, my dear; the taxing power is sufficient for everything you want and need.”
Stone’s point was that if Social Security or anything else Perkins might cook up was financed by a tax, it was permissible under the Constitution, especially since the original taxing power had been bolstered by the 1913 adoption of the Sixteenth Amendment, which legalized a federal income tax.
Supporting the Affordable Care Act cost some legislators their seats. The court ruling provides some satisfaction, writes Allison Yarrow.
They hesitate to call it vindication. But politicians who lost office for supporting Obamacare are some of the happiest campers after the Supreme Court’s ruling upholding most of the law.
“I’m energized, and it's not just the coffee,” said an elated Tom Perriello, a former Virginia congressman, shortly after the ruling was announced.
People hold signs during a rally in Chicago on Thursday about the Supreme Court's decision on the Affordable Care Act. (Nam Y. Huh / AP Photo)
“I knew in my heart that they would rule with us,” said former North Carolina congressman Bob Etheridge, who served that state’s 2nd Congressional District for more than 13 years. Etheridge likened the decision to America’s pastime, particularly for opponents: “It’s like playing baseball. You may really believe that ball coming across that plate is not a strike, but if an umpire calls it a strike, it’s a strike.”
Etheridge and Perriello are two of many senators and congressmen and women who were ousted from office in 2010, in large part for voting for the Affordable Care Act. Theirs and others’ losses were marked in part by dirty tricks—political wrangling like expensive attack ads by outside interests pitting them against seniors or for death panels, gotcha tactics, and even vandalism by alleged Tea Party radicals.
Etheridge apologized after a video surfaced of him manhandling “a couple of hired goons from the Republican National Committee” who cut him off on the sidewalk and demanded he share whether he backed the president’s agenda. The video was viewed nearly 170,000 times.
When a former Marine bad-mouthed government programs at a North Carolina health-care forum, Etheridge asked him, “Do you have health care?” insinuating the government role in providing it. The video’s poster couched the event as “Mr. Etheridge humiliating himself.”
“Here’s what bothers me about all this. People who vote to deny it are the first ones to step up to take government subsidies,” Etheridge said.
After health-care legislation approved.
Usually it’s childen who are this petulant about taking their medicine. Republican governors like New Jersey’s Chris Christie and South Carolina’s Nikki Haley say they have no intention of moving forward with the changes brought about by the Affordable Care Act. After the Supreme Court ruled that the law is constitutional, the governors say they’re waiting for Mitt Romney, who has promised to repeal the act, to win in November. “Here in Louisiana, look, we refused to set up the exchange,” said Gov. Bobby Jindal. “We’re not going to start implementing Obamacare.”
The verdicts came in quickly from advocates and opponents of the Affordable Care Act. Here’s a look at the most astute commentaries about the Supreme Court’s decision.
The most anticipated judicial ruling in recent memory ended up one of the most surprising, leaving some liberals confused but elated, and some conservatives disappointed but emboldened. As the commentariat struggles to make sense of the ruling and its implications, The Daily Beast gathers the best takes.
‘Cable news’s deplorable health care coverage.’
“The Chief Justice’s Gambit,”
Sean Trende, RealClearPolitics
While first reads on the ruling called it an unambiguous victory for the president and the Democratic Party, Trende was one of the first and best to untangle the aspects of the decision that should give liberals pause. Namely, that the court upheld the individual mandate as a tax, while vastly limiting the power of the Commerce Clause to regulate economic inactivity. Roberts pulled a John Marshall-esque move, Trende argues, voting against the short-term interests of his party, but in line with the long-term interests of conservative economic ideology. “Though the right is grumbling,” he writes. “I suspect they won’t be doing so for long.”
“The Election Is Now a Fight Over Obamacare,”
Jonathan Chait, New York Magazine
Chait, who had famously pledged to “lose his shit” if the mandate were overturned, was a bit more circumspect Thursday. He agreed with Trende and others who pointed out that Roberts’s canny ruling wasn’t all good news. And his Daily Intel column on its political implications was dead-on: the decision doesn’t mean the law will survive, but it does mean that the fight over it will. Romney, he predicts, will have to stick to his absolute opposition to the bill, and run squarely on a repeal platform. “The 2012 elections are now primarily a fight over whether health insurance is a right or a privilege,” argues Chait, “which is to say, a fight for decency.”
“Why Romney Won’t Repeal Obamacare,”
Ryan Lizza, The New Yorker
Here, The New Yorker’s chief political writer disagrees with Chait, arguing that repeal is a pipe dream. Without 60 votes in the Senate, even a potential President Romney would find it impossible to gut the emboldened Obamacare legislation. “There is literally nothing Republicans could offer Democrats in return for repealing the party’s greatest achievement since the Johnson administration,” writes Lizza, and there would be little political energy left to tackle the health-care issue anew. And if the law works as planned, there’s a strong chance that it will remain a permanent part of the American polity.
“If Romney Wins, He Can Repeal Health Reform. And He Should,”
Ezra Klein, The Washington Post
Ezra Klein fires back with a counterintuitive take. A potential President Romney wouldn’t need 60 votes to repeal Obamacare, Klein argues. He could use the filibusterproof reconciliation process to cut all of its spending, and effectively disempower the legislation. Then, Klein makes a point that’s sure to bother a few of his Post stablemates: if Romney wins on the anti-ACA platform, he should repeal the bill, as “the American people will have spoken with unusual clarity.” Given recent polling, it’s a scenario that seems eminently possible.
“The Media’s Obamacare Trainwreck,”
Howard Kurtz, The Daily Beast
Our own Howard Kurtz has some tough words for the Fourth Estate, who blew it in the Obamacare predictions game, and even messed up the day of. He doesn’t merely take to task the commentators who hyped up the case against the bill, but also straight news accounts, laced with pessimism and misreadings. “This is the problem with so much media prognostication,” Kurtz argues, before quoting none other than Jeff Toobin. “I have to say it makes me a little nervous that I went out on a limb like that,” he said. Indeed.
“A Justice in Chief,”
Linda Greenhouse, The New York Times
A learned take from veteran Supreme Court reporter Linda Greenhouse examines John Roberts’s deeply pragmatic call, and its place within the pantheon of chief justices, past and future. Roberts is “playing a long game,” says Greenhouse, with at least a “quarter-century” left in his term. Inspired by his mentor, Chief Justice Rehnquist, Roberts has chosen to take a more circuitous path to long-term success, “navigat[ing] the court through a perilous election-year landscape.” Roberts played it like a pro.
The Supreme Court justices’ stance on President Obama’s Medicaid expansion provision could be good news for states that want to lower their drinking ages from the federally mandated 21. Caitlin Dickson on the repercussions.
The Supreme Court may have upheld the Affordable Care Act’s individual mandate, but it struck down part of President Obama’s Medicaid expansion. The latter move has gotten less attention but could create some big political changes, including paving the way for states to lower their drinking ages.
Hybrid Images / Corbis
Seeking to make more people eligible for Medicaid, Obamacare gives states two options: take more money from the federal government to put more people on Medicaid; or lose the federal funding they were already getting for the low-income health-care program. The Supreme Court ruled that threatening to take away a state’s Medicaid funding unless the state does what the federal government wants is “unconstitutionally coercive” and declared it invalid. Because any given part of a Supreme Court decision can set a precedent for future laws and can even invalidate an established law if it is challenged using the Supreme Court’s new argument, the Medicaid decision could affect the National Minimum Drinking Age Act.
In 1984 Congress passed the law that made it illegal for anyone in the United States under the age of 21 to purchase or publicly possess alcohol. While drinking laws are and always have been a states issue, the federal government was able to enforce the minimum age by making it a part of the Federal Aid Highway Act (PDF). So for 28 years, states have been compelled to keep the minimum legal drinking age at 21 or face losing their federal highway funding.
In 1987 the state of South Dakota, which permitted the sale of beer containing up to 3.2 percent alcohol to 19-year-olds, challenged the law. The case went to the Supreme Court, which decided that it was constitutional for Congress to use the threat of financial penalty to get states to do something, such as enforce a drinking age minimum, as long as the condition under which the penalty is imposed is unambiguous, promotes the “general welfare,” relates to “the federal interest in particular to projects or programs,” and fits within the lines drawn out by the 10th Amendment—which defers all powers to states that are not granted to federal government or prohibited by the Constitution.
The highway funding threat is how the U.S. government has been able to effectively enforce a national minimum drinking age for nearly 30 years. But on Thursday the Supreme Court declared that withholding money from states as a punishment for not doing what the federal government wants is unconstitutional. Federal aides and lawmakers immediately voiced concern that the new stance could reignite such fights as the drinking-age battle, not to mention No Child Left Behind, which also withholds funds from noncompliant states. If a case like the one South Dakota pursued against the drinking age act in 1987 were pursued now, using the health-care decision as precedent, the outcome might be different.
Obamacare survived the Supreme Court, although it’s a different story in the court of public opinion. Is it just impossible to pass big, ambitious bills in today’s ultra-polarized media climate? Andrew Romano on whether Obamacare is the last of its kind.
Obamacare may be the last piece of big, bold legislation we'll see out of Washington for awhile.
The chattering classes have spent the last few days twittering about the political fallout from the Supreme Court's decision to uphold the Affordable Care Act. But our pundit-princes may be missing the bigger picture. The ACA squeaked past John Roberts & Co. by the narrowest of margins. It only got there after a grueling, coast-to-coast slog through the lower courts. And Mitt Romney is still vowing to repeal the program on "Day One" of his presidency. Two and a half years after emerging from Congress, Obama's signature achievement is still very much at risk.
President Barack Obama delivers remarks and signs the health insurance reform bill in the East Room of the White House on March 23, 2010. (Marvin Joseph / The Washington Post via Getty Images)
Is it possible that our politics and our press have evolved—or devolved—to the point where it is so challenging to build the kind of consensus required to sustain an ambitious new law like Obamacare that future presidents may simply stop trying?
Even Obama, by many accounts one of the most persuasive politicians on the planet, has never been able to scrape together enough public support to keep the ACA out of harm's way. Since March 2010, the percentage of Americans with an unfavorable opinion of Obamacare has almost always outstripped the percentage of Americans who favor it. According to a new Washington Post poll, 52 percent regard the “federal law making changes in the health care system” in a negative light and only 39 percent regard it positively. And earlier this month, a CBS/New York Times survey revealed that 68 percent of the public wanted the Supreme Court to overturn some or all of the ACA.
If you want to figure out whether expansive legislation is going extinct, it’s important to understand why the public turned against Obamacare in the first place. Both sides have their theories. Liberals argue that Obama failed to sell, and later, to safeguard, his handiwork—that better speeches might have swayed the masses. “Of course the public thinks the law is unconstitutional,” Slate’s Dahlia Lithwick wrote in March. “They never heard a single word defending it.” Or as E.J. Dionne put it last Sunday, “maybe now, supporters of the ACA will find their voices and point to the 30 million people the law would help to buy health insurance, how much assistance it gives businesses, how it creates a more rational health insurance market, how it helps those 26 and under stay on their parents’ health plans, how it protects those with pre-existing conditions.” The only problem with Dionne’s suggestion that it’s exactly what Obama did on numerous occasions. It didn’t make a difference.
Meanwhile, Republicans claim the liberty-loving American people, who are (and always have been) opposed to even the slightest incursion on their God-given freedom, would never stomach Obamacare’s hellish individual mandate. This also seems unlikely. Back in 2004, 2005, and 2006 a very intelligent, very meticulous man spent a lot of time studying health-care reform. Eventually, he concluded that universal private coverage would only be possible if people were required to pay a fee when they refused to buy insurance. “It’s a kind of mandate,” he explained. “Help everybody get in the pool. That brings down the cost, and at the same time [it] makes sure that people don’t have to worry about losing their coverage... We want everybody in the system. No more free riders.” His name was Mitt Romney. A year or two later, one of Romney’s fellow Republicans praised his Massachusetts reforms, saying “well, that’s something that I think we should do for the whole country.” His name was Jim DeMint. It’s difficult to imagine that a majority of the electorate is either a) better-informed about health policy than Mitt Romney or b) more conservative than Jim DeMint. If these guys found a way to support the individual mandate, most Americans could have, too.
So why haven’t they? The answer, I suspect, is that it is becoming increasingly difficult to assemble a lasting consensus for change—amassing a wave of public support large enough to overcome our instinctive fear of the unknown and our natural reversion to the status quo—in a political, media, and technological climate that’s calibrated to thwart consensus at every turn.
The presumptive Republican nominee was quick to promise a repeal of the health-care act if elected president, but he proposed no alternative—throwing out only the usual Medi-scare, deficit-bomb, and ‘government takeover’ bromides.
Right off the top, Romney delivered one of the tightest lines of his campaign: “What the court did not do on its last day in session, I will do on my first day if elected president of the United States. And that is, I will act to repeal Obamacare.”
It went downhill from there. Careful to repeat the word “Obamacare” some 18 times throughout his brief remarks, Romney was careless with the facts in his rebuttal.
Maybe it is the inherent awkwardness of the fact that Romney’s major governmental accomplishment is an individual mandate-driven health-care plan, but his response was fear- rather than fact-based. This is consistent with the “attack and distract” strategy he has deployed when it comes to policy during his general-election campaign.
At least three claims Romney made in his speech deserve particular scrutiny:
First, Medi-scare: “Obamacare cuts Medicare—cuts Medicare by approximately $500 billion.” Medi-scare is a classic fear-mongering technique usually deployed by Democrats against Republicans, most vividly by the television ad depicting Paul Ryan pushing grandma off a cliff. The Affordable Care Act does try to rein in Medicare costs by slowing the rate of growth and ending the Medicare Advantage program, but that should be consistent with Republican values of increasing efficiency and reducing waste, fraud, and abuse. Moreover, the Ryan plan, which Romney endorses, would cut at least that amount but redirect the savings to reducing the deficit. Playing the Medi-scare card is low and discredited, but hearing it from a Republican nominee is more than a bit surreal.
Charles Dharapak / AP Photo
Second, the deficit-bomb card: “Obamacare adds trillions to our deficits and to our national debt.” Deficit and debt make up one of the Obama administration’s greatest weaknesses among independents. It is ultimately a form of generational theft. But the nonpartisan Congressional Budget Office scored the ACA and determined that it actually would reduce the deficit by more than $100 billion in the next 10 years. I agree that government estimates almost always lowball the eventual costs, especially in the realm of entitlements, but the CBO scoring can’t just be ignored in favor of a partisan narrative. And of course, one of the arguments for health-care reform in general is that it will reduce costs in the long run with our aging population and improve American industry competitiveness.
The Supreme Court ruling on Obamacare dashed both parties’ carefully laid reaction plans, but leaves Republicans in particular grasping for a strategy. Patricia Murphy on how the GOP will try to bounce back.
Until 10:07 a.m.—the moment Thursday that the Supreme Court announced it would uphold nearly all of the Obama administration’s health care law—Democrats and Republicans were fully prepared to launch detailed contingency plans, months in the works, to respond to the opposite scenario.
Eric Cantor speaks after the Supreme Court's ruling on the Affordable Care Act June 28, 2012 in Washington, DC (Win McNamee / Getty Images)
After all, had the high court struck down all or part of the law, the American health-care system would once again be ripe for litigation, debate, and legislative fixes.
Republicans’ plans were twofold: introduce a bill to repeal whatever the court did not strike down, and methodically offer up smaller, more popular pieces of the bill that were individually popular, like keeping young adults on their parents’ insurance until they’re 26 and eliminating lifetime-coverage caps. They would also push traditional Republican-tested ideas that sold well with their base, like tort reform and allowing insurance to be sold across state lines.
Although the timing of the new bills remained undecided, the ideas came out of a months-long effort to map a post-Supreme Court strategy. GOP Whip Kevin McCarthy convened four meetings with members, including a separate sit-down with the doctors in the caucus, to prepare for three scenarios—that the bill would be upheld, partially struck down, or entirely struck down. But members involved in the meetings said the most attention was concentrated on the scenario nearly all of Washington expected—that the individual mandate would not survive.
For their part, Democrats prepared for the same outcome, drafting talking points about a partisan Supreme Court run amok and looking for ways to backfill whatever the justices struck down as unconstitutional. Democratic senators began to devise bills to introduce immediately after a potential nullification of the act, including small measures to restore a partially gutted law and a much larger bill called the “Health Care Restoration Act” in case the entire Obamacare measure was struck down in one fell swoop.
In the end, none of the complicated, multipart contingency plans was necessary because the Supreme Court essentially upheld the status quo, the one scenario neither side had fully gamed out, leaving both parties scrambling.
The easier task fell to Democrats, whose only real challenge was not to spike the ball, as John Boehner had warned his members not to do if their side won. But even composure was too much to ask from some giddy party leaders. DNC Executive Director Patrick Gaspard launched a typically jubilant, if off-color, taunt to Republicans in the frenzied moments after the Supreme Court delivered its decision. “It’s constitutional. Bitches,” he tweeted.
Justice Roberts and the Supreme Court have handed Team Romney and Republicans a new weapon to use against Obama.
Just a moment ago, it seems, President Obama’s supporters were assailing the John Roberts Court for its supposed political activism. Now, Roberts has given Obamacare’s supporters their sweetest victory precisely because he did the political work that Obama and his allies wouldn’t, or couldn’t, do when they were enacting the health-care overhaul in 2010—calling the “mandate” undergirding the law what it actually is, a tax.
Roberts upheld the "mandate" by calling it a tax. (Charles Dharapak / AP)
And Republicans, no longer able to question the law’s constitutionality (an issue deftly mooted by Roberts’s mandate-is-a-tax rationale), have rushed to take up the new line of attack suggested by Roberts. “The Supreme Court is confirming what we knew all along about this law,” said New Jersey Gov. Chris Christie, in a statement released moments after the court’s decision, “it is a tax on middle-class Americans.”
Grover Norquist, the antitax orthodoxy enforcer for the Republican Party, told The Daily Beast that the court’s ruling provided Republicans with an obvious course to victory in the fall. “The president was elected on a repeated commitment that he’d never raise taxes on anyone who earned less than $250,000 a year,” Norquist said. “He gets elected, he passes Obamacare, swearing that there’s no tax increase in it. OK. Between now and the election, we have a conversation about the fact that Obama lied his way into office, he said he wasn’t going to raise his taxes on lower-income people, and did.”
Florida Senator Marco Rubio, who, like Christie, is a potential Republican vice-presidential candidate, took up the theme on the Senate floor Thursday afternoon. “My friends, this is a middle-class tax increase,” Rubio said. “And millions of Americans now have an IRS problem.”
Mitt Romney, whose voice on the health-care issue is not fully trusted within his own party, once again vowed to undo the law partly modeled on his own reform in Massachusetts. “Obamacare was bad policy yesterday,” Romney said. “It’s bad policy today.”
Democrats, for their part, mostly expressed relief, and even some exuberance. But while House Minority Leader Nancy Pelosi may be inclined to spike the ball on the ruling, it would be surprising to see much of that from Obama himself. The president has scarcely mentioned his signature health-care law in his reelection campaign, not only because its constitutionality was in question, but because it remains, more than two years after passage, a very unpopular program. Polls on the eve of the Supreme Court’s decision showed that far more Americans opposed the Affordable Care Act than supported it, and nearly 70 percent wanted Washington to do little or nothing to replace it if the court overturned the law. Indeed, Obama seemed eager to move beyond the subject, saying he had no wish to “refight the political battles of two years ago or go back to the way things were.”
And while the Supreme Court’s decision will certainly animate the political right—Romney’s camp reports that money started flooding into its coffers within an hour of the ruling—the presumptive Republican nominee may be well advised against focusing too much on Obamacare. For one thing, voters have already spoken on the issue—and gave Republicans the House in 2010, when the ugly process of the law’s passage was still fresh in memory. But what has lifted the Romney campaign, and continues to dog the president, is the abiding national concern over a dreadful economy. Every moment that Romney spends talking about undoing Obamacare is a moment not spent on the subject that could bring him victory in the fall.
First, judicial restraint is alive and well after all. Plus, President Obama will no longer be able to hide behind the lie that the Affordable Care Act won’t impose new taxes.
Conservatives shouldn’t pretend that the Supreme Court decision on the Affordable Care Act isn’t a victory for President Obama. It is, and the president will naturally claim vindication for his policies.
But for Obama, today’s judgment amounts to a victory in a battle, not the war. To win that war—to block the implementation of sweeping legislation that would cripple the economy and damage the republic—Republicans need to shift strategy, not abandon our goals.
President Obama will no longer be able to hide behind the lie that the Affordable Care Act won’t impose new taxes, writes Michael Medved. (Kris Connor / Getty Images)
Yesterday, we argued that Obamacare was ill-advised and unconstitutional. Today we know that it is constitutional (the justices get to decide that under our system, not legal analysts on Fox News, or at the National Review, or even at The Daily Beast). But it’s still ill-advised.
And, more to the point, Obamacare is still unpopular. It won’t suddenly become more popular now that the Supreme Court has formally endorsed the Republican contention that Affordable Care Act actually mandates a massive new tax on the middle class. If nothing else, today’s decision makes it officially, undeniably clear that the administration can’t pay for its wildly increased spending programs by imposing new burdens on the wealthy alone. The American people may have been confused on the subject of the “individual mandate” but every citizen understands what it means to face a new tax.
As the campaign unfolds, how can the president continue to deny that he has imposed such a tax when the Supreme Court ruled that he has—and it’s on that basis alone that his signature achievement counts as constitutional?
While conservatives passionately hoped that the high court would euthanize Obamacare on Thursday morning—or at least cut out its heart while encouraging Congress to attempt an emergency transplant—they can at least take comfort in some aspects of the emerging situation.
First, all right-wingers with integrity should feel encouraged by the fact that judicial restraint is alive and well. Justice Roberts’s decision made it clear that he wanted desperately to avoid “legislating from the bench”—and conservatives should of course applaud that instinct. Roberts and other opponents of what Republicans rightly deride as “judicial tyranny” resisted the idea that nine unelected jurists (or five of them, to comprise a majority) should instantaneously undo 2,700 pages of ridiculously detailed legislation painstakingly passed by 535 elected representatives over the course of nearly two years of debate.
Thanks to Obamacare, women can’t be charged 150 percent more than men for insurance, can’t be penalized for having had a C-section—and can count birth control as preventive care.
Women have much to celebrate in today’s historic Supreme Court ruling upholding the Affordable Care Act—starting with the fact that it means an end to gender discrimination in the health-insurance market. In other words, women will no longer pay up to 150 percent more than men for the exact same health benefits.
Demonstrators in favor of the Affordable Care Act marched in front of the Supreme Court in Washington, D.C., on Thursday. (Saul Loeb, AFP / Getty Images)
Under a current practice known as “gender rating,” insurers can charge women higher premiums than men—in fact, women now pay $1 billion more than men each year for identical health plans in the individual market. As of 2014, gender rating becomes illegal in all new individual and small group plans.
Also in the current individual insurance market, coverage for maternity care is routinely excluded. Only 12 percent of plans sold in the individual market offer maternity coverage, which is frequently inadequate because of long waiting periods and deductibles that can be as high as the cost of the birth itself. Once the Affordable Care Act—otherwise known as Obamacare—is fully implemented, about 8.7 million women will have guaranteed access to maternity and newborn care in all new individual and small group plans.
It’s also common in today’s market for insurers to refuse to cover women because of gender-based “preexisting conditions.” These conditions can include issues such as having had breast cancer or a Caesarean section or having been a victim of domestic violence or sexual assault. This practice, too, will be outlawed under Obamacare in 2014. In the meantime, adults with preexisting conditions who have been uninsured for at least six months can purchase affordable coverage through temporary Pre-existing Condition Insurance Plans.
Another big way in which women benefit from Obamacare is in its guarantee of recommended preventive-health services with no cost sharing, such as copays, deductibles, or coinsurance. More than 50 percent of women have delayed seeking medical care due to cost, and one third of women report forgoing basic necessities to pay for health care. Under Obamacare, insurers are now required to cover critical preventive services such as mammograms, Pap smears, and well-baby care without cost sharing. More than 45 million women with private insurance and with Medicare have already taken advantage of these services.
In addition, starting this August, more services specifically for women will be added to the list of preventive care that must be covered at no additional cost. That list includes contraception, gestational diabetes screening, breastfeeding counseling and equipment, annual well-woman care (in other words, a visit to the OB-GYN), and screening and counseling for domestic violence and sexually transmitted infections, including HIV and the human papillomavirus.
Other benefits for women include the ability to see their OB-GYN without a referral, guaranteed breaks and a private space for nursing moms to pump breast milk while at work, and home visiting programs for at-risk new mothers.
Protesters protested, politicians opined, and belly dancers danced. The scene outside the high court was a vivid representation of America’s messy democracy in action.
In the blistering oven outside the Supreme Court Thursday morning, two skimpily clad, bespangled young women calling themselves “belly dancers for single payer” shook their booties, while a male companion pounded a beledi drum and another one played a flutelike instrument called a mizmar.
Lloyd Grove reports from the Supreme Court.
A black-shrouded figure with a skull mask, carrying a sign reading “Grim Reaper for Obamacare,” lurked ominously on the marble steps amid a mob of chanting Tea Partiers. A woman wearing an American flag armband and nursing a lit cigarette (“I’m trying to quit,” she claimed) argued that not just President Obama’s Affordable Care Act, but also Social Security and Medicare, are unconstitutional. She was contradicted by another woman holding aloft a massive placard, reading “Real Access to Healthcare. Thanx Obamacare."
Elsewhere, a dozen protesters held up signs urging “Defund Planned Parenthood” while two dozen others, apparently dispatched by the Obama campaign, raised placards containing the talking point “Moving Forward. Protecting Our Care.” A few feet away, a sorrowful-looking Jesus Christ—or a reasonable facsimile thereof—surveyed the chaos.
Thus is history made.
As the famously disagreeable summer Washington temperatures rose to unhealthy levels—the merciless sun sadistically amplified by television lights—a certain delirium set in. Brain cells sizzled and turned to ash. Mad dogs and political junkies!
“I have pursued my ego to the steps of the Supreme Court on a hot day,” explained Republican economist Douglas Holtz-Eakin, who had filed three amicus briefs as the Obamacare challenge made its way through the courts. He was standing under a shade tree—“for survival,” he explained. There was some confusion as to whether Holtz-Eakin was there as a Mitt Romney surrogate. A Romney staffer said he was; the economist insisted he wasn’t—“although I certainly agree with him.”
Nearby and under the same tree, George Washington University Medical School Professor Michael Newman, wearing a white physician’s coat, had come to support the president. Glancing at the noisy naysayers, he ventured, “I’m glad they’re out in the sun and taking a beating. You can’t have a conversation with them.”
It’s the end of liberty! It’s the beginning of freedom! Either way you slice it, the court’s ruling on Thursday was momentous.
I Knew It!
Donna Shalala: Health and Human Services Secretary (1993-2001) and University of Miami president
“I expected it. I actually told my students at the end of the semester that I thought the Supreme Court would uphold the individual mandate and the rest of the provisions because it was carefully drafted in consultation with constitutional lawyers. I also had some confidence that Chief Justice John Roberts would not play politics on this one. I think we’ll be able to say to Americans, the president will be able to say, this helps you, if you have insurance or if you don’t have insurance. For the first time we can explain the cost shifting. Those who have health insurance will no longer, as this is implemented, be paying for those who don’t have health insurance.
Every stakeholder wins in this decision. More importantly, we can now move on to some very important issues in health care, like the cost of health care, the efficiency of the system, getting rid of fraud in the system. I think it forces the Republicans to say if they’re going to get rid of this what they’re going to substitute for it. And it lets the president have his staff focus on the other issues in health care.”
Clockwise from top left: Jill Lepore, Rev. Al Sharpton, Donna Shalala, Dr. Jeremy Lazarus, S.E. Cupp and Jon Gruber
Good for You, America
Jon Gruber: MIT professor and adviser on Romney and Obama health reform
“The decision by the Supreme Court to uphold the mandate by a 5-4 vote is a victory for the health and financial security of Americans. With the mandate in place we can move forward on the key insurance-reform provisions that ensure that America will no longer be a country where individuals can be excluded from health-insurance coverage because they are, have been, or will be ill. This decision allows the Affordable Care Act to move forward to provide insurance coverage to more than 30 million Americans, to control the costs and improve the quality of U.S. health care, and to lower the budget deficit. Congratulations to the tens of millions of uninsured Americans, the tens of millions more who face the risk of becoming uninsured, and the hundreds of millions who will ultimately benefit from a less expensive and higher quality health-care system.”
Oh Great, More Taxes
S.E.Cupp: New York Daily News columnist and MSNBC Host
“The Supreme Court just gave its imprimatur to a bill that only 26% of Americans wanted upheld, according to a recent Washington Post/ABC News poll. In addition to the 42% who wanted the entire law tossed out, a whopping 67% opposed the signature piece of President Obama's Affordable Care Act, the individual mandate. This is all perfectly within the court's purview, of course, and if anything, it's clear that the Supreme Court is not as easily influenced by politics or popular opinion as Democrats preemptively insisted it would be. But it's certainly a surprising verdict.
As for spin, it's inarguably great news for the president and his reelection campaign and bad news for Republicans and Mitt Romney, who will try to argue that this decision will only fire up the conservative base. It will, in the short term, but when Romney pivots off health care (which will happen sooner than later) it's hard to say whether this ruling alone will carry energetic support through November.
But the real meat of this decision, I think, has to do with the court's finding that the individual mandate is, in fact, a tax. Of course, that's the opposite of what Obama's been insisting for the past two years. In a 2009 interview with George Stephanopoulos, the president complained, ‘My critics say everything is a tax increase ... I absolutely reject that notion.’ Republicans can at least find some solace in the news that the Supreme Court just validated what they've been saying all along. The individual mandate is a $2.6 trillion tax hike.”
I. Glenn Cohen: Harvard Law School professor and codirector of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics
"This is a big win for the Obama administration. They would have preferred to have the act to be upheld as an exercise of the Commerce Clause or Necessary and Proper Clause congressional power rather than the Taxing Power, because that would have avoided arming the Romney campaign to say things like, "the president said it wasn't a tax, but he lied to you as the Supreme Court realized," and, "in the middle of this terrible economy, rather than focusing on jobs, the president pressed upon people a health-care tax." Still, even that political reality is much better for them than having the mandate or other parts of the bill struck down.
At a fundraiser in Memphis, hours after the court’s landmark health-care decision, the first lady celebrated the news, praising continued coverage of ‘contraception, cancer screening, and prenatal care.’
First lady Michelle Obama was in Memphis for a campaign fundraiser at the Memphis Cook Convention Center just a few hours after Thursday's landmark Supreme Court health-care ruling. Addressing nearly 300 people, who paid upward of $500 per seat to attend, she spoke for about half an hour.
In a fairly typical stump speech, she talked about her upbringing in Chicago, before moving to the day’s political heat: “Today’s Supreme Court decision was truly a victory for families all across this country,” she said. “Because of this reform, [we need to] help them understand that insurance companies will have to cover preventative care for things like contraception, cancer screening, prenatal care.” She continued: “Insurance companies will no longer be able to cap your coverage … [or] deny you coverage just because you have a preexisting condition.”
At the end of her speech, she asked supporters to “multiply.”
Is today’s decision upholding the Affordable Care Act the new Marbury v. Madison, a dramatic case that alters the nation’s checks and balances? Chris Geidner compares the texts.
The cases are 209 years apart, but just below the surface, the similarities between Marbury v. Madison, the landmark Supreme Court case establishing judicial review, and today’s decision upholding the health-care law’s individual mandate are striking.
In his 2008 book The Activist, Lawrence Goldstone detailed the circumstances of Marbury, which addressed the power of the court to strike down federal laws.
Goldstone wrote of Chief Justice John Marshall, a federalist who wanted to avoid granting more authority to the new president, Thomas Jefferson, “He knew all too well that if he sided with his fellow federalist [William Marbury, who had filed a lawsuit against Jefferson’s administration with the Supreme Court], Jefferson would simply refuse, and Marshall had no means to compel him to comply. The court’s authority would therefore be weakened, thus defeating the federalist scheme to maintain its power through the judiciary.”
But deciding the other way would have been using the federalist-heavy courts to “strengthen Jefferson’s power,” which would have been “equally unpalatable.”
After this morning’s ruling, law professor David Bernstein wondered about the Supreme Court’s authority (or at least the public perception of it): “[W]as [Roberts] responding to the heat from President Obama and others, preemptively threatening to delegitimize the court if it invalidated the ACA?”
There is no reason to think that President Obama would not have complied with today’s ruling if it had gone the other way, but that doesn’t mean he would take it lying down. As the political reporter Marc Ambinder tweeted earlier this week, “The [White House] has exec[utive] orders [ready to go] if ACA is struck down. Their content and timing I don’t know. But they’ve got contingency plans a-plenty.”
Supreme Court Chief Justice John Roberts (left) and Justice John Marshall. (Getty Images; AP Photo)
The bottom line is that both Marshall and Roberts were writing their opinions in the face of intense political pressure and competing views of the proper scope of government power. In 1803, as Goldstone wrote, “Marshall found a way through the thicket.” Roberts did the same today.
After months of waiting, Obamacare has been upheld by the Supreme Court. The Daily Beast reviews the legal circus.
An insider’s guide to the Supreme Court’s dramatic ruling upholding the Affordable Care Act. By Jesse Wegman.
Cable TV anchors might have made serious gaffes reporting the wrong healthcare decision, but not everyone was scratching their heads. Newsweek & The Daily Beast's Lloyd Grove reports from the Supreme Court that the Fox technical crew were ready—after setting up their equipment in the middle of lawn sprinklers.
It’s the end of liberty! It’s the beginning of freedom! Either way you slice it, the court’s ruling on Thursday was momentous.
Birth control without copays starts in August.
Minutes after the Supreme Court announced that Obamacare was upheld, we asked our Facebook readers to give their reactions in one word. Here are the results.
Fox News’s reaction to SCOTUS’s ruling took a notably somber tone. Watch its anchors’ descent into gloom.
You know that kid in your class who always talks but never actually does the reading? Well, today, that was CNN and Fox News. In a rush to beat their opponents to report the Supreme Court’s health care decision, both cable networks broadcast the wrong information—and then had to awkwardly retract their statements.
Scalia and Ginsburg go to the opera together and more Supreme Court trivia.