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Kelley v. Becerra, the Preventive Care Mandate and the Major Questions Doctrine
SCOTUS dodged this issue in Little Sisters of the Poor, but W.V. v. EPA invigorated the claim.
For nearly a decade, the courts have been hearing challenges to the Affordable Care Act's contraceptive mandate. But, if you read the bill, there is no actual "contraceptive mandate." (Nor is there any provision called the "individual mandate.") Rather, the bill requires insurers to provide "preventive care." The ACA did not actually define what "prevent care" consists of. Rather, that decision was delegated to an agency.
I have long argued that this delegation is suspect. In 2020, I advanced a related position before the Supreme Court in Little Sisters of The Poor v. United States. We argued that the ACA did not delegate the authority to create the Obama Administration's initial "accommodation." Our brief was premised on the non-delegation doctrine, as well as the major question doctrine. Here is an excerpt from the introduction:
At base, the ACA did not delegate the authority to draw that arbitrary distinction and resolve this "major question." The fact that the rulemaking here was premised not on health, financial, or labor-related criteria, but on subjective determinations of which employees more closely adhere to their employers' religious views, "confirms that the authority claimed by" the agencies "is beyond [their] expertise and incongruous with the statutory purposes and design." Gonzales v. Oregon, 546 U.S. 243, 267 (2006). If "Congress wished to assign that question to an agency, it surely would have done so expressly." Id.
Had Congress intended to give the Departments discretion to decide which religious institutions should be subject to the mandate, it would have legislated to that effect. "It is especially unlikely that Congress would have delegated this decision to" the agencies, "which ha[ve] no expertise in crafting"religious accommodations "of this sort" without clear statutory guidance. King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (citing Gonzales, 546 U.S. at 266–67). In the light of the narrow "breadth of the authority" that Congress has given to the executive branch over this controversial issue of religious liberty, the Court is not "obliged to defer . . . to the agency's expansive construction of the statute." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000).
I discussed the legislative history of the contraceptive mandate and exemptions in pages 29-66 of Unraveled. In particular on page 43-49, I discuss the legislative debates underlying the "preventive care" mandate. Here is a snippet:
Had there been any discussion that this provision would be used to force employers, including religious nonprofits, to cover contraceptives that can prevent the implantation of a fertilized egg, there would have been an uproar. Such a bill was unlikely to have secured the vote of Senator Nelson and others in the fragile sixty-member caucus. It is not clear that anyone in the House understood the Amendment would operate in this broad fashion. Representative Stupak explained that the "[t]he principal tenet of [his the pro-life] Caucus members is their belief that the fertilized embryo is a human life and that any man-made disturbance of the embryo is a form of abortion." 126 FDA-approved contraceptives may have the effect of "preventing the implantation of a fertilized egg." 127 Under no circumstance could the pro-life caucus have supported a mandate that was contrary to their mission statement – even with the president's executive order, which would have no impact on the mandate. I could not locate a single contemporaneous statements from Stupak or anyone else in the House suggesting that they realized the "preventive care" mandate could be used to force religious employers to cover such contraceptive methods that his caucus opposed.
And here, I alluded to what we now call the Major Questions Doctrine.
This is the proverbial dog that didn't bark , a legal principle derived from Sir Arthur Conan Doyle's classic story "Silver Blaze." 129 In the story, an officer from Scotland Yard is investigating a night-time robbery of a racehorse. He asks Detective Sherlock Holmes, "Is there any other point to which you would wish to draw my attention?" Holmes replies, "To the curious incident of the dog in the night-time." The officer is confused. "The dog did nothing in the night-time." Holmes deduces, "That was the curious incident … Obviously the midnight visitor was someone whom the dog knew well." The dog that did not bark was the clue. That no one objected to a mandate requiring all employers – with no exceptions for any religious groups – to provide contraceptives was itself the "curious incident." This issue is even more extreme than the Hyde Amendment debate, as the issue was not about federal funding for abortions, but forcing religious organizations to pay directly for these contraceptives. Amid the debates over the individual mandate, funding for abortion, and the issue of state-run exchanges, this pivotal detail went entirely unnoticed.
Ultimately, the Supreme Court did not reach the delegation issue in Little Sisters of the Poor. Justice Thomas's majority opinion observed that the question was waived:
No party has pressed a constitutional challenge to the breadth of the delegation involved here. Cf. Gundy v. United States, 588 U. S. ___ (2019). The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions.
Now, in the wake of West Virginia v. EPA, this issue of delegation has been re-invigorated.
Yesterday, oral arguments were held in the Northern District of Texas in Kelley v. Becerra. The case is very complex, but squarely presents the delegation issue. And the Plaintiffs are represented by Jonathan Mitchell, the genius.
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From the “very complex” link:
“The government cannot possibly show that forcing private insurers to provide PrEP drugs, the HPV vaccine, and screenings and behavioral counseling for STDs and drug use free of charge is a policy of such overriding importance that it can trump religious-freedom objections,” the lawsuit reads.
How brain damaged do you have to be to think like that?
Why should anyone but homosexuals have insurance that covers PrEP cost free?
For one thing, what about wives of male hemophiliacs and other transfusion recipients who got HIV-infected blood before the donor screening was essentially perfect? Is that even perfect now?
-dk
So what?
Are you arguing that specific group should also have PrEP insurance, or because of that narrow group everyone should have PrEP coverage?
Lol, Republicans fought to prevent women from having the birth control they desire while gay men get $1800/month pills so they can raw dog it—you nitwits are the gay boys!!
You think women can’t figure out how to get birth control if the government doesn’t force an insurance company to buy it for them?
Do you think women stop growing at 11?
Can you find a new hobby that doesn’t involve making women pay out of pocket for IUDs?? Literally any other hobby would be a better use of your time.
Noted example is arthur ashe
He wasn’t gay!!?!?!?!?!?!?
Arthur Ashe supposedly got it from a blood transfusions . He may have been gay, though I have no knowledge of that, nor did I or do care.
“Why should insurance cover costs that I myself am unlikely to incur?”
– Someone who doesn’t have a fucking clue what insurance is.
No, somebody who DOES have fucking clue about what insurance is.
Look, (Canned lecture here.) insurance is intended to take occasional large expenses and turn them into regular, smaller expenses. If on average once every 100 years your house would catch fire, costing you $100K, insurance instead charges you $1K (Plus overhead and profits.) every single year, and then pays out the $100K if your house does catch fire. It makes financial planning possible for comparably rare catastrophic events.
Birth control is not a comparably rare catastrophic event. It’s a regular, voluntary expense. Insurance is not intended for regular, voluntary expenses. You don’t take out insurance to pay for things that are under your control, you just budget for them. You don’t take out insurance for regular expenses, you just budget for them.
Birth control simply is NOT the sort of expense that you would normally pay for through insurance. Kind of like your car insurance doesn’t pay for your gasoline, your homeowner’s insurance doesn’t pay your electric bill.
There are rare expenses that it makes financial sense from the insurance company’s perspective to pay for, because paying them predictably lowers the payout for the catastrophic stuff. Like your dental insurance probably 100% covers regular cleanings, because it saves the insurance company on paying for dental work. Saves them a LOT.
Now, people will argue that birth control is this sort of expense, because paying for pregnancies is expensive, and can be a consequence of not using birth control. This is wrong.
The reason it’s wrong is that nobody deliberately stops brushing their teeth because they’ve decided it’s time to have a cavity, but people routinely stop using birth control because they’ve decided to have a baby. So the birth control is generally just letting you control WHEN you get pregnant, not if.
“Birth control is not a comparably rare catastrophic event. It’s a regular, voluntary expense. Insurance is not intended for regular, voluntary expenses. You don’t take out insurance to pay for things that are under your control, you just budget for them. You don’t take out insurance for regular expenses, you just budget for them.”
And yet, somehow, multi-billion dollar markets for dental and vision insurance continue to exist, despite Brett Bellmore’s pronouncement that these matters can simply be budgeted for . . .
“The reason it’s wrong is that nobody deliberately stops brushing their teeth because they’ve decided it’s time to have a cavity, but people routinely stop using birth control because they’ve decided to have a baby. So the birth control is generally just letting you control WHEN you get pregnant, not if.”
The only way this makes any sense at all is if you completely misunderstand the purpose of birth control coverage. The risk to be prevented is not the risk of pregnancy per se; it is the risk of *unwanted* pregnancy, and the attendant costs and disruptions associated with that. So yeah, if you are planning a pregnancy, you stop using birth control. That does not negate the health and financial benefits of birth control for women who do not want to be pregnant.
“Multi-billion dollar markets for dental and vision insurance continue to exist”….
Mostly because it’s tax deductable or handled by the employer.
“Vision insurance” doesn’t really make sense for most people. A vision plan can average $13-$15 a month, while handling 1 vision appointment every year (or two), and getting you a discount on select frames (call it $100). The Vision appointment is usually in the $100 price range, If you pay $180 a year to save a $100 appointment, and maybe another $100 on glasses…it might make sense. Assuming you buy new glasses every year. Which most people don’t.
What makes more sense is doing that all with before-tax money. Then, if you’re actually “saving” another 60-100%. (At total tax rates of 30-50%).
Brett, I am sure you are old, overweight, and impotent enough that you are taking at least a half-dozen drugs on a daily basis, to manage your cholesterol, your blood pressure, your blood sugar levels, your tumescence, what have you.
That is, to be sure, in the vein of “predictably lowering the payout for catastrophic stuff,” despite your rich desert for such catastrophe, but the point is – this isn’t rare. You may not like that insurance is used – and for many people, is needed – to cover regular medications taken by people with chronic conditions, but there are a ton of people doing just that.
Indeed, the drugs we refer to as “birth control” have such uses, as well, saving many women from debilitating pain, life-threatening cysts, and even pregnancies that their bodies would be unlikely to survive. It’s not just about putting off pregnancy until our broodmares have finally gotten their dalliances in the workforce out of their system.
But even if it were – your distinction turns out to be wholly arbitrary. Like, the use of birth control to limit oneself to one or two children, rather than three or more, saves insurance companies money. The use of birth control to forestall childbearing until later in life saves insurance companies money. Giving women the tools to manage their reproductive care so that they can develop their careers saves insurance companies money (and increases their premium revenue). This isn’t exactly hard to imagine, or grasp.
Well, you shouldn’t be sure of that, because you’re actually wrong about most of that. I’m moderately overweight, but I do intermittent fasting, hike a lot, and use the gym, and as a result my blood pressure, sugar, cholesterol, and lipids, are all just fine without chemical intervention. In fact, I’ve rather enjoyed the rise in blood pressure, no more graying out if I stand up too suddenly. I bet you never got kicked out of a Red Cross blood donation center because your blood pressure was too low to donate.
I do have a bit of arthritis, which I deal with using supplements my insurance does NOT cover. The only medication I take deals with side effects of a cancer I had back in 2010, and as it’s something I’m going to be on for the rest of my life, it really makes no sense it being covered by my insurance, it would be simpler if I just had that much lower a premium, and put the money in my HSA.
Actually, I’m well aware that ‘birth control’ has purposes other than preventing pregnancy. The point, though, is that you’re not at “risk” of needing birth control. “Insurance” only makes sense for unpredictable risks, not regular expenditures.
You seem to be conflating paying for something through insurance, with having it available to you. I’m just saying that insurance makes no sense as a funding mechanism for predictable expenses.
‘I’m just saying that insurance makes no sense as a funding mechanism for predictable expenses.’
Which is why health care should be socialised.
That makes about as much sense as claiming that, because insurance makes no sense as a funding mechanism for buying toilet paper, plumbing should be socialized.
‘insurance is intended to take occasional large expenses and turn them into regular, smaller expenses’
Insurance is intended to impose a massive rent-seeking middleman between people and their healthcare. If you don;t like it that such a health insurance system has to cover stuff that some people need and other people don;t, then you understand why it’s actually a bit of a fucking travesty of a system, because insurance companies and pedantic cranks shouldn’t be trying to impose their ideas and beliefs and profit-motive on people’s health care access.
Insurance is to indemnify you from risk.
Only really stupid economic illiterate people buy insurance for things they have no risk from.
Also really stupid economic illiterate people buy insurance to cover routine and trivial costs like teeth cleanings and checkups
Only a complete dummy who doesn’t know money math thinks it’s a smart idea to pay an insurance company each month for a $90 expense they know they will incur once a year.
Twice a year. And the insurance covers more than that, including more than half the cost of a crown.
What risk are you trying to protect yourself from by buying insurance for a teeth cleaning?
Are you afraid you’ll need an emergency cleaning and you won’t have the $50?
I’m not buying insurance for a teeth cleaning. I’m buying insurance for having to get another crown, and they throw in the teeth cleaning because it saves them money by delaying the crown.
In America we have universal health care funded by a VAT for people ages 26-64 and then we fund the rest through deficit spending. The VAT funds are controlled by states and the major employers in the respective states.
So, you’re actually posting from an alternate reality? Cool.
Given the insurance case just decided at the end of the term (that dialysis need not be covered even though it is a near 100% proxy for late stage renal failure), the insurance can clearly not cover that, right?
Not brain damaged. Just a really bad person. That’s all there is to it.
“They don’t think like I do, they don’t hold my opinions, so they are evil. Regardless if what they think directly affects me”.
-Liberal tolerance these days. Why I’m not a liberal Democrat anymore..
“ They don’t think like I do”
Correct. I don’t think you should deliberately make it more expensive to prevent a deadly and devastating disease prominent among a group I dislike. Mitchell does. Do you?
“ they don’t hold my opinions”
Correct. Unlike me, they don’t hold the opinion that it’s actually a bad thing to deliberately make it more expensive to prevent a deadly and devastating disease prominent among a group I dislike. Do you hold that opinion.
“ so they are evil”
Again, correct. If you agree with the thought or opinion that it should be more expensive to prevent a a deadly and devastating diseases prominent among a group you dislike, then you are being evil.
“ Regardless if what they think directly affects me”.
Why on earth should this matter? Part of what being good entails doing and thinking the right thing regardless of how it affects me personally. In any event, it DOES affect me if people generally, but more specifically I know and care about would have to pay much more to prevent a deadly and devastating disease because of the machinations of some evil dork.
“ Liberal tolerance these days.”
Yeah I’m a liberal so I don’t tolerate people who want to make preventing a deadly disease more expensive for no reason than to be cruel to a group of people. It’s actually morally commendable to not tolerate that belief.
“ Why I’m not a liberal Democrat anymore.”
If this is the example for why you’re not a liberal or a Democrat, that’s pretty telling. Because you’re suggesting society should tolerate people who want to make it more expensive to prevent deadly and devastating diseases prominent in groups of people they dislike. And find the mere act of calling that immoral bad for some reason. So it sounds like you’re not one because you recognized that they’re constraining your ability to support demonstrably immoral things.
“I don’t think you should deliberately make it more expensive to prevent a deadly and devastating disease prominent among a group I dislike.”
Subsidizing these treatments doesn’t make them one penny cheaper. It just transfers the cost away from the people whose behavior causes the expense, to people whose behavior doesn’t, and thus reduces the motive to avoid creating the expense in the first place.
Tell that to the people paying for them. If insurance doesn’t cover preventative care, guess what happens to the patient?
And yeah, I know you’re evil, so of course you have this opinion.
1) If insurance doesn’t cover preventative care, guess what happens to the patient?
-The patient covers the “preventative care” (contraceptives) themselves?
-The government covers the preventative care via Medicaid or any of a number of different programs?
-A host of non-profits step into the gap to provide free contraceptives, as many currently do?
There are many, many current options that don’t involve forcing people to violate their religious beliefs. And if it is of such overwhelming importance, convince Congress to provide it free to all Americans, as they did with COVID vaccines.
What you think you know that isn’t true would fill the Library of Congress.
Personally speaking, I’m a tolerant person. I understand and appreciate that people have many different beliefs, thoughts, preferences and opinions in this country. I also understand and appreciate that we have many different rights and freedoms related to the above.
Sometimes, the cost of those rights and freedoms comes at potential higher mortalities from certain causes, usually indirectly, but not always. However I believe our rights and freedoms, and our diversity of opinions are worth that potential cost. And that other people may have different opinions from me, and it’s still worth protecting their opinions and beliefs, despite the fact it may result indirectly in slightly higher mortalities.
Do you not believe this? Do you believe it is acceptable to infringe upon people’s beliefs and opinions for what are modest indirect gains in health? To take strongly held beliefs of theirs and say “no, I don’t care, this is more important”?
Criticism is not infringing anything, you utter snowflake.
But also, AL, you are not a tolerant person. You are a petulant partisan who regularly makes moral judgements on those who disagree with you.
Which is fine – criticism is speech. You do seem to have trouble grasping the concept even after all this time as an armchair lawyer.
This high horse you’re currently claiming is just another inconsistent partisan cudgel in a weak disguise.
The thing here is, liberty and responsibility for the consequences of your choices are inextricably linked: If your choices are going to impose costs on other people, they’re going to try to have a say in them, every time, and rightfully so.
As a consequence, the only way liberty can be stable, can not be under continual attack, is if it is coupled with the obligation to pay the costs of your choices yourself.
You want the right to do things that have predictable costs, like having to take expensive medications to avoid dying from some disease you got from chugging bacon grease, or anonymous unprotected anal sex? Expect to pay for those costs, or expect people to make a serious effort to take that right away from you.
You might not realize it, but by demanding that these costs not be socialized in this manner, I’m actually defending the right in question.
‘Expect to pay for those costs, or expect people to make a serious effort to take that right away from you.’
This is precisely the reason they MUST be socialised, or they will be subjected to the beliefs and prejudices of the ignorant and of reactionary moral scolds.
Well, you’re making a case for socializing the costs of excessive face palming, I’ll give you that much.
The “ignorant and reactionary moral scolds” these days are mostly on Team Blue with you.
Why are your healthcare costs and outcomes my responsibility to pay for?
Because nothing bad has ever happened from letting an employer get involved in an employee’s medical decisions.
You can easily get your employer out of your healthcare decisions by getting your own policy.
Problem solved.
That would go back to the WW2-era decision by government that put employers in the healthcare payment decision cycle in the first place.
I’m aware of the history.
I’m also aware of the present, that capitalists are quite happy with the status quo, and are resisting all efforts to decouple insurance from employment.
The status quo is not supported by anyone except cronyists. Capitalists (read: free marketeers) wish to abandon the status quo but not jist for the sake of doing it. They want to remove the state’s involvement. Socialists hate the status quo, but want to abandon it to remove the business from the equation.
They both hate the status quo, like they both would hate sitting still at a T-intersection. The argument is do we turn left (MORE gov involvement which historically means more activity by the agency that has messed things up) or right (the opposite).
I’m not playing “No True Scotsman” with you.
You’re not playing anything. You made the claim that “capitalists” are happy with the status quo and a resisting efforts to change it yet provided no evidence or support for that claim.
I, on the other hand, know many employers who would happily get out of the business of deciding their employees’ health insurance choices if that were practical. Government policy, dating all the way back to WW2 and still largely unchanged, inhibits that.
Indeed, it was a grave mistake to not have implemented a national public healthcare system as most other western countries did during that era. But why further compound that mistake now?
National health care only came to be in thise countries bevause WW2 destroyed their health care.
WW2 may not have destroyed our health care, but over the last eighty years we’ve managed it just fine on our own.
WW2 did destroy our health care. It did it on the installment plan, by getting our government involved in it.
Ah yes the awesome broad coverage of the free market.
Nice counterfactual. It holds no water to anyone who understands the idea of markets being a kick-ass hammer, but not everything is a nail.
Well yes, but actually not really. The main reason was that post-WWII, left wing parties were ascendant across Europe, as voters understood that they were the only ones who actually fought the fascists, whereas the center and right tolerated, collaborated, or outright joined them. So to keep from going red, center and center-right forces knew that concessions had to be made to the working classes, a major one of which was health care.
But regardless of their provenance, those systems have proven themselves to be far superior to the US employer model in every conceivable way. Why anyone would want to give their employer more control over their health care by giving them veto power over care they find “religiously objectionable” is beyond me.
Well, I don’t want to give my employer control over my health care. I want to completely separate health care from employers, by giving it the same tax status whether or not you get it through your employer.
That would deprive employers of any say whatsoever, now, wouldn’t it?
Agree completely. Using the Medicare model to cover everyone would take employers out of the equation completely, and take away their control.
So you agree that the employer-provided health care option is bad and yet choose the only option that’s actually worse – letting the same people who run the Post Office decide your health care. Astonishing.
How about letting people actually decide for themselves? Get employers out – and get the government out, too.
There are more reasons to oppose socialists than being fascist. And deciding the fascists are less evil than the socialists (only in a relative term) does not make one pro-fascist.
We joined with the socialists against Hitler. Fine enough. Doesn’t mean they were the good guys and that anyone who opposed socialism were the bad guys.
I didn’t say anything about good guys or bad guys, or the US at all. In Europe, as a matter of historical fact, the partisan groups who engaged in armed resistance against the fascists were composed almost exclusively of left wingers of some variety. At the same time, centrists and right wingers were collaborating with the fascists. So naturally, in the years after the fascists were defeated, the people who actually fought them instead of supporting them enjoyed elevated public prestige and electoral support. That’s why capital had to make concessions like public healthcare during that time – to keep people from voting in socialists and communists.
Equally a matter of fact, the partisan left-wing groups fighting against the fascists were NOT fighting for the people; They were competing with the fascists over who would get to be the oppressor.
That’s not a matter of fact, that’s a matter of your opinion, which is irrelevant in this context. All that matter is that European voters at that time THOUGHT they fought for them, which is why they had to be bought off with things like health care to not vote them into power.
No, it’s true: The Reds were fighting the Browns, and the places where the Reds took over also ended up unfree.
But regardless of their provenance, those systems have proven themselves to be far superior to the US employer model in every conceivable way.
Proven….? As measured by what, Aunt Teefah? What is your measuring stick for that statement?
I mean, this question has been thoroughly studied by all sorts of specialists, and the consensus view is that the US system compares poorly to most other industrialized countries in health outcomes and quality of care, even more so when cost is considered. Here is one summary of recent findings bearing on this question. https://www.commonwealthfund.org/publications/fund-reports/2021/aug/mirror-mirror-2021-reflecting-poorly#:~:text=Health%20Care%20System%20Performance%20Rankings&text=The%20U.S.%20ranks%20%2311%20%E2%80%94%20last,above%20it%2C%20Switzerland%20and%20Canada. There are many more.
Explain the fact that our current public spending per capita exceeds all OECD countries but one already.
If our public spending meets or exceeds those other countries, why don’t we see good outcomes with that public spending?
As with any problem of this magnitude, there are many reasons, but the two big ones are:
1. Private health insurers are motivated to turn a profit, which means extracting money from the health care system to hand it to shareholders. So much of our spending on “health care” is not spent on health care at all – it is simply wasted, given over to shareholders. Other wasteful consequences of the private profit motive include advertising expenses, duplicative bureaucracy, and possibly most pernicious, the incentive to deny valid claims to avoid paying for care people need.
2. In the US, taxpayers pick up the tab only for the most expensive people to insure: the old (Medicare), and the poor (Medicaid), thereby leaving the most profitable portions of the population to the private sector. But a big reason why universal health programs have been so successful is that they invest heavily in preventive care, which is by far the most cost-effective form of health care. An ounce of prevention is better (and much cheaper) than a pound of cure. But private health insurers have no real incentive to invest in preventive care for patients, because they know by and large, by the time their beneficiaries are to start really getting sick and racking up big bills, they will have aged into Medicare and will be off their ledger. It does private insurers little good to invest in preventive care, so they just don’t.
The US rates at or near the top in outcomes. The only way to say it performs poorly is to use the typical deceptive trick of not including demographics, or by “adjusting” for costs.
In the US, health care is expensive. But survival rates for individuals are better in the US than almost anywhere else, for almost any case.
It’s the infant mortality lie all over again.
The truth is that the incidence of “lifestyle” diseases strongly influences public health, and it’s not driven by health care, it’s driven by lifestyle. My dad died of heart disease, I’m free of it. Why? Not because of medical treatment, because I watch my diet and get a lot of cardiovascular exercise.
We’ve got some of the best medicine in the world, we’ve just got a lousy lifestyle in terms of exercise and diet, so we spend a lot on that medicine to compensate.
I asked about proven Aunt Teefah. A think tank report expressing their opinion on vaguely defined metrics is just that….an opinion. Proof is a significantly higher standard.
Maybe our definitions of the word proven differ?
Yeah, so that we too, can be told NOT to get our teeth cleaned every six months, but rather every 2-3 years. The NHS just told Britons to forgo regular cleaning because there is no capacity in the system.
Actual health care is a scarce good. Like all scarce goods, it is best allocated by market forces. Government-mandated insurance does not increase the amount of the good available. Rather, it does what government interference in the market always does, it distorts the market so that scarcity rises and fewer people actually receive the care.
Why would anyone want the people who spend a billion dollars for a single tunnel, or who everyone complains is unfathomably corrupted in charge of your healthcare?
The Federals are modern day Shit Midas’s. Everything they touch turns into boondoggles and corrupt waste.
Why on Earth would you want those people who time after time after time show how utterly worthless and often evil they are to control your healthcare?
Or the government.
Buy your damn condominiums where I used to, shady truck stop restroom vending machines !!!!!(Expecting a Reverend Jerry/Arthur rejoinder)
But Jonathan Mitchell is a genius!
I mean, he’s credited with the bounty part of Texas’s bounty law, deliberately designed to avoid SCOTUS scrutiny, and he’s a bigot to boot, so of course Blackman would love the guy (but only in a heterosexual way, of course). Blackman loves lawyers that want to control the private lives of others.
Obsolete bigotry and old-timey superstition are about all this blog, and movement conservatives, have left.
Those are the hills they have chosen to (figuratively, in the sense of being rendered culturally irrelevant) die on.
And so it shall come to pass.
Carry on, bitter, disaffected, downscale clingers.
One of my pet peeves is that tubal ligations [surgical permanent sterilization for women] are covered with no copay on the ACA, but vasectomies [analogous surgery for men, except that it’s superficial and therefore intrinsically cheaper] are not covered at all.
-dk
That’s because they were trying to buy women’s votes, not men’s votes.
Or it could be, you know, because a man doesn’t face a health risk if his wife/GF gets pregnant, while the woman does.
Just sayin’.
Faces a massive financial risk, though.
Which has zip to do with ACA.
Yeah, but the insurance company doesn’t have to cover THAT financial risk.
But he can do his part to avoid the health risk. It is safer for the man than the woman to get “fixed.” Both avoid the danger of pregnancy (less the woman acts on her own accord which puts the blame squarely on her at that point sans rape).
The end goal is the same. One is cheaper. The same is safer. Both are effective within normal behavioral parameters.
No reason to pay for one but not the other.
contraception mandate – Was basically a case of one side trying to cram their beliefs onto others. Look at the insanity of forcing the little sisters.
ObamaCare was awful in so many ways…
You mean the “okay, you don’t want to cover this, you don’t have to. Just let us know so we can cover it for you” force?
Little Sisters did not stop at objecting to paying for their employee’s contraception. They were against anyone else paying for their employee’s contraception as well.
Not precisely. They objected, IIRC, to a requirement that they certify that they weren’t paying for it, which would trigger the somebody else paying for it. Essentially, they objected to being required to tell the somebody else to pay it.
If they employees themselves had to pull the trigger, that would have been OK.
Now, if you want to argue that that was a bit indirect for your taste, fine. You might think differently if the topic were something you personally felt strongly about.
My view is that they were paying their employees money, which is “fungible”, and if their employees wanted to spend the money on contraceptives, they were perfectly able to. So, what’s the freaking big deal?
Your recall incorrectly. They objected to any course of action that led to their employees being covered. They weren’t coy about it: the problem was their employees getting birth control, not money, and any course of action that allowed that was intolerable to them.
If that were true, then there would have been on conflict in the first place as the woman is always the one that “pulls the trigger” on getting birth control. It’s not like there’s drug dealers on the street trying to force it on you.
But the ACA forced the dealer into the conversation between employer and employee. He didn’t have to be on the street… he was legally called to be a party of what should have been a private contract negotiation.
No, I’m pretty sure I got it right.
First, yes, they were required to provide a certification, which, yes, triggered the benefits.
“The accommodation required an eligible organization to provide a copy of the self-certification form to its health insurance issuer, which in turn would exclude contraceptive coverage from the group health plan and provide payments to beneficiaries for contraceptive services separate from the health plan.”
Second, yes, their objection was specifically that, by filing the certification, THEY would be triggering the third party coverage.
“They challenged the self certification accommodation, claiming that completing the certification form would force them to violate their religious beliefs by “tak[ing] actions that directly cause others to provide contraception or appear to participate in the Departments’ delivery scheme.””
Third, yes, an arrangement that resulted in provision of the coverage without their triggering it would have been acceptable.
“The Little Sisters were far from alone in raising RFRA challenges to the self-certification accommodation. Religious nonprofit organizations and educational institutions across the country filed a spate of similar lawsuits, most resulting in rulings that the accommodation did not violate RFRA.”
“We granted certiorari in cases from four Courts of Appeals to decide the RFRA question. Zubik v. Burwell, 578 U. S. ___, ___ (2016) (per curiam). Ultimately, however, we opted to remand the
cases without deciding that question. In supplemental briefing, the Government had “confirm[ed]” that “ ‘contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any . . . notice from petitioners.’ ” Id., at ___ (slip op., at 3). Petitioners, for their part, had agreed that such an approach would not violate their free exercise rights.”
It came back to the Court because a lower court had invalidated that arrangement.
Firstly, The Little Sisters should never have been a plaintiff. They are a self-insured “church plan” as defined by ERISA, and as a result exempt from the requirement that they provide contraception coverage.
Secondly some other employers who do not qualify as church plans rejected an accommodation that did not include any triggering. Even with no triggering or any cost sharing by the employer, it was not acceptable for the coverage to occur within the existing policy with an opt-out feature. instead, they demanded a separate policy with a separate insurance card that employees had to separately opt into.
TLDR;, you have to convince me you can actually understand that 2015 is after 2005 before I’ll read a wall of text from you.
Make ya a deal: you let us in on your Really Clever Secret about why that matters, and we’ll go from there.
Let’s put it this way. Imagine the following situation.
1. The government tells you that you need to press a button that will kill a person. But if you object that that on religious or other grounds…
2. The government says “Please sign this form saying that you object, so we can push the button for you (which will kill someone)”
Both actions…pushing the button, and signing the form…result in killing someone. The only correct action, if you really don’t want anyone to die, is not to do anything.
Jonathan Mitchell might be a “genius” but at his core he’s simply a bad person. Only a bad person with bad morals would think: I should sue to make it more expensive for people to help prevent HIV, HPV or other STDs and use religion as an excuse as to why. There is no positive moral content to that thought process whatsoever. Just pure cruelty. The kind of thing a cartoon villain would do.
The argument isn’t necessarily the what but the how.
I oppose slaves being forced to build orphanages. Not because I oppose orphanages but because I oppose slavery.
It’s the why and the how. He wants it more expensive to prevent HIV because he doesn’t’ like homosexuals and wants them to suffer and die horribly. He’s using religion as an excuse as to why. Zero moral content there.
*what
I haven’t seen any proposal at all to make it more expensive to prevent HIV. Are you under the impression that subsidies change how much something costs, rather than just who ends up paying for it?
No, if you look at his record, it’s pretty clear he’s opposed to the “what”. This man is a religiously motivated bigot that wants to control what other people do and punish them for it.
So, you want these goods and services to be “free.” I am curious, how will they be “free?” The beneficiary of them doesn’t have to pay–at least not in a way readily apparent to him. The rest of society has to pay. Because, of course, there is no “free.”
And the recipient also pays, by the way. As insurance costs rise, employers shift compensation from real wages to benefits. So, the employees get less money in their pockets to pay for things they actually want. Employees are prevented from making choices after doing their own cost-benefit analysis.
There is no free.
And of course, there are cheap ways to prevent most STDs. Especially HIV infection. But certain constituencies cannot be admonished to change their behavior.
“But certain constituencies cannot be admonished to change their behavior.”
So you’re a cartoon bigot too, got it.
Can you share with us how Monkey Pox is spreading and how the CDC is recommending we stop it?
Are they trying to prevent them from getting preventative care by making it prohibitively expensive?
You realize the preventative care is literally zero cost, right?
Then why is the state of Texas suing?
Because they’re being asked to pay for something besides self-restraint? Like, a vaccine so that promiscuous male homosexuals can continue engaging in reckless behavior, only with slightly less danger?
They can get condoms anywhere for virtually nothing.
These selfish degenerates refuse to use condoms so their high-risk sex can feel better, so everyone else must bear the burden.
Think about how utterly vile that is. Average natural families have to bear the cost of the increase ($1800 a month) in pleasure non-bareback to bareback homosexual orgies because otherwise, these filthy fucking monsters who drink piss and eat shit will spread diseases that will hurt themselves and everyone else.
Look in the mirror if you want to see the bigot here.
So….who argues the government side in the “re-match” with Jonathan Mitchell?
According to PACER, the government is represented by Christopher Lynch, a DOJ trial attorney, and Brian Stoltz, an AUSA in the Northern District of Texas.
The major questions doctrine is just another invented constitutional principle with no basis in the text or history of the document. I really wish conservatives like Blackman would stop pretending to care about its text and history, since they so clearly only do when it supports what they want.
I am similarly concerned that the doctrine, especially as currently promulgated, is nothing more than a mechanism to enable the justices to veto administrative actions they disagree with. One particular concern is that there are no objective criteria for what constitutes a makjor question. It’s a pure “I know it when I see it” situation.
I’d rather see a comprehensive non-delegation doctrine, but at this point the idea of making Congress actually write the laws themselves seems to be off the table.
So Prof. Blackman’s analysis is based not only on legislative history, but on not finding certain comments in the legislative record that he would have expected?
Gotta love textualism!
Here’s a fundamental problem with the major questions doctrine. If you’re a liberal democratic, it’s pretty obvious that contraception was exactly the sort of thing Congress had in mind when it wrote “preventive care.” And if the Hyde Amendment didn’t exist, abortion would be too. Sex care is preventative care, a normal part of health care. After all, European countries with national health systems generally include contraception and abortion in the package.
Only if you’re a conservative Republican would it be a question, let alone a major one.
So there’s a serious danger of major questions becoming nothing more than “things I disagree with.” If a majority of the court disagrees with it, you need clear guidance from Congress. There are no objective criteria, nothing outside the Justices’ personal judgment, for what constitutes a major question.
If the criteria used is whether there has been generally contrary legislation passed, abortioj would constitute a major question because of huge social disagreement and considerable legislation on the subject, even if the Hyde Amendment weren’t there.
But it is by no means clear contraception would. Since Carey v. Population Services nearly half a century ago, there just haven’t been major legislative efforts to restrict contraception the way there have been for abortion. It was clearly a major question in the 1960s. But it appears to have fallen out of the major questions portfolio.
Representative Stupak explained that the “[t]he principal tenet of [his the pro-life] Caucus members is their belief that the fertilized embryo is a human life and that any man-made disturbance of the embryo is a form of abortion.” 126 FDA-approved contraceptives may have the effect of “preventing the implantation of a fertilized egg.”</i.
So banning contraception is next. Yeah. I know. Only certain forms. For now.
I am not convinced Jonathan Mitchell is a genius, but he is not associated with South Texas College Of Law Houston, so he has that going for him, which is nice!
If memory serves, the only supporting evidence Prof. Blackman has marshaled for the “genius” claim is that Mitchell once asked a question that Prof. Blackman had trouble answering.
Josh, if this asinine mish-mash of self-citations, framed in a way intended to suggest that you’ve been prescient, but really just demonstrating that you don’t even really understand what you yourself have written, shares anything at all with W.V. v. EPA, it’s the enigmatic way in which a conclusion is drawn from a mysterious ipse dixit hidden behind the waving of hands.
In any sane jurisprudential world – and I am conceding that may no longer be the world we live in – the major question doctrine does you no good here, as Thomas himself concedes that Congress in fact authorized, in its statutory text, the contraceptive mandate as well as religious exemptions from it.
Meanwhile, the non-delegation doctrine may in some ways feel similar to a “major questions” kind of problem, but it cuts in an entirely different way. For one, it’s a constitutional question, not one of statutory interpretation, but more importantly it applies even when the president acts within the confines of what Congress has in fact provided for. The question in a non-delegation challenge is whether Congress has granted the president too much leeway in making his own law-like rules. The question in a major question challenge is whether Congress has granted the president the authority to make the rules he has implemented.
The reference to legislative intent also doesn’t help here. Massachusetts v. EPA and Bostock ought to have put that to bed, and W.V. v. EPA further underlines the point. You’re not going to spin a “major question” out of some counterfactual about legislative intent (again, in any sane jurisprudential world). The question, before this Court, is what the text says, and what the executive branch does with that text. If Congress tells the president to implement rules on preventive care, and if sound science (rather than the myopic, superstitious views of a Catholic advocacy group) demonstrates that contraceptive care ought to qualify by a sufficiently spelled-out standard in the statutory text, then there’s no non-delegation or “major question” problem. If Congress doesn’t like how its text applies, then its job is to come back and amend the text. It’s not for the courts to read their own conservative agenda into the penumbra and emanations of the Constitution.