Florida District Judge Roger Vinson, just became the second federal district court judge to find President Obama’s sweeping health care law unconstitutional. Here’s the opinion. Vinson, ruling on behalf of the 26 state attorneys general or governors, found that the Congress had “exceeded the bounds of its authority in passing the Act with the individual mandate.”  And then Vinson went one better than Virginia Judge Henry Hudson by determining that the unconstitutional provision was not severable from the bill in its entirety, and that the entire law is thus unconstitutional.

With references to James Madison and the need to curb federal powers, Vinson quotes Supreme Court precedent for the argument that “the principle behind a central government with limited power has “never been more relevant than in this day, when accretion, if not actual accession, of power to the federal government seems not only unavoidable, but even expedient.” Vinson determines that the plaintiffs could not prevail on their spending clause and coercion theories, then turns to the individual mandate. He finds that the plaintiffs had standing to challenge the individual mandate, then turns to the question of whether the mandate is a constitutional exercise of power under the commerce clause. With a long, long walk down commerce clause history lane, Vinson pauses ominously to note that “everything changed in 1937, beginning with the first of three significant New Deal cases and a time of expansive reading of the Commerce clause.

Toggling back and forth between the various federalism revolution cases of the 1990s, Vinson then concludes that what Congress requires here is unprecedented; that “never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States.” He finds that “it would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause” and that “if Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power and we would have a Constitution in name only.” Citing Erwin Chemerinsky appearing on Reason TV to reject the argument that there is a unique health care market, Vinson concludes that the economic decision to forgo participation in the health care market is not “activity” for commerce clause purposes, warning, with proper citations, that “everything could be said to affect interstate commerce in the same sense in which a butterfly flapping its wings in China might bring about a change of weather in New York.”

Vinson concludes with a warning that the Necessary and Proper clause not be transformed into a “hideous monster [with] devouring jaws” (Hamilton), and determines that the unconstitutional section of the Act cannot be severed from the rest of it. Vinson points out that “ going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others, would not only take considerable time and extensive briefing, but it would, in the end, be tantamount to rewriting a statute in an attempt to salvage it”

Vinson makes the decision not to grant the plaintiffs' request for injunctive relief and sends them on their way.  Let the wild rumpusing begin.

Judge’s gavel by Stockbyte/Thinkstock Images.

Tags: health care reform

Florida District Judge Roger Vinson, just became the second federal district court judge to find President Obama’s sweeping health care law unconstitutional. Here’s the opinion. Vinson, ruling on behalf of the 26 state attorneys general or governors, found that the Congress had “exceeded the bounds of its authority in passing the Act with the individual mandate.”  And then Vinson went one better than Virginia Judge Henry Hudson by determining that the unconstitutional provision was not severable from the bill in its entirety, and that the entire law is thus unconstitutional.

With references to James Madison and the need to curb federal powers, Vinson quotes Supreme Court precedent for the argument that “the principle behind a central government with limited power has “never been more relevant than in this day, when accretion, if not actual accession, of power to the federal government seems not only unavoidable, but even expedient.” Vinson determines that the plaintiffs could not prevail on their spending clause and coercion theories, then turns to the individual mandate. He finds that the plaintiffs had standing to challenge the individual mandate, then turns to the question of whether the mandate is a constitutional exercise of power under the commerce clause. With a long, long walk down commerce clause history lane, Vinson pauses ominously to note that “everything changed in 1937, beginning with the first of three significant New Deal cases and a time of expansive reading of the Commerce clause.

Toggling back and forth between the various federalism revolution cases of the 1990s, Vinson then concludes that what Congress requires here is unprecedented; that “never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States.” He finds that “it would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause” and that “if Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power and we would have a Constitution in name only.” Citing Erwin Chemerinsky appearing on Reason TV to reject the argument that there is a unique health care market, Vinson concludes that the economic decision to forgo participation in the health care market is not “activity” for commerce clause purposes, warning, with proper citations, that “everything could be said to affect interstate commerce in the same sense in which a butterfly flapping its wings in China might bring about a change of weather in New York.”

Vinson concludes with a warning that the Necessary and Proper clause not be transformed into a “hideous monster [with] devouring jaws” (Hamilton), and determines that the unconstitutional section of the Act cannot be severed from the rest of it. Vinson points out that “ going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others, would not only take considerable time and extensive briefing, but it would, in the end, be tantamount to rewriting a statute in an attempt to salvage it”

Vinson makes the decision not to grant the plaintiffs' request for injunctive relief and sends them on their way.  Let the wild rumpusing begin.

Judge’s gavel by Stockbyte/Thinkstock Images.

Tags: health care reform

— Many parents have been lamenting the demise of unstructured, sometimes untidy playtime for their children; efforts encouraging children to put down the screens and revisit playtime have gained momentum. [New York Times]

— The Democrats have been planning a counter-attack on the Republicans’ efforts to repeal Obama’s landmark health care legislation. [New York Times]

— After filmmaker Liz Canner was hired by a pharmaceutical company to produce a video for a female version of Viagra, she became suspicious of the company, which she believed was taking advantage of women’s insecurities for profit.  [Jezebel]

— Teenagers have been drawn to Bravo’s Real Housewives shows because of the women’s adolescent behavior, Anna David argues in the Daily Beast. [The Daily Beast]

— Autostraddle ranks the top 10 sweatpants. First on the list is a pair from your university’s bookstore.  [Autostraddle via The Awl]

Tags: health care reform, real housewives, state of play

The only constant in the narrative has been that conservative voters are being hoodwinked.  The old narrative, promoted by Thomas Frank, was that conservatives were voting to stop abortion, but were getting instead tax cuts for the wealthy and rollbacks of protections for workers.  In reality, of course, they were voting against abortion and getting draconian laws passed against abortion.  Now the narrative is reversed, and conservatives are calling themselves "Tea Partiers,"and claiming they want a small, libertarian government.  But they're getting politicians who are members of misogynist Christian cults that are using their newfound power to attack abortion rights.

I'm with Digby on this one.  Just because the culture war doesn't get as much coverage sometimes as it should doesn't mean it's gone away.  Conservative voters vote for what they want and get it.  They've always kept abortion rights at the top of their kill list, and they've gotten much closer to their goal than is usually acknowledged in most of the media.  The strategy for keeping the rollback of abortion rights out of the spotlight has been to focus attacks on women who have trouble affording time or money to go through an elaborate, expensive maze to get an abortion.

The new initiative, spearheaded by Representative Joe Pitts (who wrote the incorrectly named Stupak amendment to the health care bill), is to cut off all potential for anyone in the country to have an abortion covered by their insurance.  The way what Pitts intends to accomplish this is to make it illegal for any insurance company who is receiving money from anyone subsidized by the government to cover abortion—for anyone.  That means that if your employer pays for your insurance and you don't get any subsidies yourself, you still wouldn't have abortion coverage because someone else that is also covered by your insurance does have subsidies.  The idea is to turn abortion into an out-of-pocket expense for everyone in the country, further distancing it from being understood for what it is—a necessary medical procedure—and recreating it to seem like it's a luxury item indulged in by slutty women who should just keep their legs shut.

Not that this is anything new. The Hyde Amendment that was passed in 1976 made it so most women on Medicaid who need abortions can't get them, creating a standard where your punishment for the non-crime of being poor and sexually active could be forced childbirth. Having succeeded like gangbusters at making the right to abortion dependent on income, Pitts and company are trying to expand the pool of women who fall below the income line where you have basic human rights.  Now working class people who use private insurance are next.  The end game is one where only women who can write a check for $500 or more on the spot can have abortions.  Since half of Americans don't make enough money where they could come up with $2,000 in 30 days if they had to, the pool of women that fall below the income line where they're assured a right to abortion will be big indeed.

Of course, this attack on women is disguised as being "for the children."  Personally, I can't think of anything less child-friendly than suggesting those who can least afford the tribulations of forced motherhood are the ones who should be the ones forced into it. Perhaps next is legislation that would require women forced to have children they know they couldn't afford to attend a seminar conducted by anti-choicers on why they're child abusers for having children they couldn't afford.

Tags: health care reform, joe pitts, pro-choice, pro-life

Millions of voters and Medicare recipients, my dad among them, are opening their mail this month and discovering that to pay their Medicare prescription drug premiums next year, they'll need to open their checkbooks. In September, Avalere Health, a private research firm, released the results of a study attempting to quantify the effect of a new requirement that Medicare gradually begin offering coverage in the famed "donut hole" (which resulted in seniors whose prescription drug costs surpassed a set coverage limit having to pay all of the costs of those drugs out-of-pocket until reaching a catastrophic coverage threshold).  Overall, premiums will be up.

Benefits increase as well, but seniors who don't have an immediate need for the additional coverage are more focused on their wallets than on abstract future gains, and recent poll results show that most seniors don't realize that the health care reform law passed earlier this year will eventually close the "donut hole." That finding suggests that many people won't know why their premiums have increased. Medicare officials point out that for many seniors, changing plans based on their specific prescription needs can lead to lower premiums, but anyone with any experience at all in attempting to shop for health insurance knows that's far easier said than done. Those same officials, who've been forecasting an average increase of $1 in premium charges, admit that their estimate is based on an assumption that every senior will switch to the lowest-cost plan that covers their current drug needs. In other worlds, in a perfect world of educated consumers, this one's win-win. In the actual world, probably not so much.

From an individual point of view, the new drug premiums are yet another complicated homework assignment within a byzantine structure of government and private insurers all with differing reimbursements and exceptions for different prescription drugs. On a larger level, it's one more indicator that the often unclear and vastly complex health care overhaul has left its supposed beneficiaries more dazed and confused than grateful, and obviously infuriated many. One line in the new premium announcement stands out for conservative voters in particular: a suggestion that Medicare Part D recipients will pay higher premiums based on income. Seniors, who for decades have paid into Medicare with no limit on Medicare-taxable income, are particularly angered to see limits being placed on what they can now get out of the program.

I mention my dad in the first line of this post because he discovered yesterday that his premium (and my mother's) will more than double next year, from $25 a month up to $60. Each. Sure, he may be able to lower it by shopping around, and he may eventually see a benefit from a closed "donut hole," but I know one thing he's going to do first: vote.

Tags: health care reform, medicare drug premium, Medicare Plan D

The good news this week is that—as this stream of local news stories can attest—HHS has started handing out the $55 million in Personal Responsibility Education Program (PREP) grants. These grants go toward sex-education programs that have met evidence-based standards for reducing teen pregnancy and STI transmissions, which is a fancy way of saying that they teach kids about contraception. The bad news is that this doesn't mean the end of abstinence-only education.

In all the melee over health care reform, the baby-splitting compromise over sex education went understandably under-reported. In the grab bag of goodies being tossed at conservative Democrats and Republicans to get them to support health care reform, $50 million in grant money for abstinence-only programs was added to the $55 million for PREP. States can choose which money they'd like to apply for. Quietly, Congress instituted a form of red state/blue state balkanization of the sort that fed up people on both sides of the aisle are increasingly demanding, at least over cocktails, when, should politics come up amongst like-minded people, someone is bound to say, "Why can't the red states and blue states just go their separate ways already?" Well, on sex education, it looks like a looming possibility.

Should the "go your own way" strategy with sex education really take root, it will likely grow the already-existing inequalities between sexual health outcomes in red and blue states. As Naomi Cahn and June Carbone demonstrated in their book Red Familes v. Blue Families, more conservative states generally have higher teen pregnancy rates. There are complex reasons for this, but lack of social support for contraceptive use for sexually active teenagers is a major factor. Having the federal government help fund contraception-positive messages in blue states and contraception-negative messages in red states can only make this situation worse.

The good news is that red states aren't (yet) all completely in the thrall of the anti-sex league. There comes a breaking point for many where teen pregnancy rates get so high they're willing to start taking another look at those condom thingies. Arkansas quietly added contraception education to its health programs that used to be anti-contraception. For them, the breaking point was 62.3 births for teenagers out of 1,000 live births, 48 percent over the national average. Of course, some states, like Mississippi, will probably be building maternity wards in their high schools before they start to think that maybe it's not the worst idea if sexually active teenagers wrap it up.

Illustration about promoting abstinence by Adrignola for Wikimedia Commons.

Tags: abstinence-only education, comprehensive sex education, health care reform

Finally, the day has come when all new insurance plans are required to cover preventive health care without any co-payments or deductibles. But despite reassurances from Congress and the White House that birth control would be covered under health reform, it didn’t make the list of essential preventive services. Instead, all anyone could promise was a future “study.”

Comissioned by Kathleen Sebelius, the Secretary of Health and Human Services, the study is supposed to determine whether contraception is, in fact, a preventive health service. Allowing a year for the research, which is due next August, then additional time to issue new regulations, and, after that, a year in which insurers will have to comply with new regulations, it’ll be at least 2012 before women can get birth control without a hefty co-pay. 2013 is more likely.

Women’s health advocates have sent a letter urging Sebelius to shorten, or better yet, eliminate the delay. “There’s no need to study for an entire year whether birth control is a preventive services,” says Lois Uttley, co-founder of Raising Women’s Voices, one of the more than 60 organizations that signed the letter. “They can come to a conclusion on that issue in a matter of weeks by simply reviewing the existing scientific and medical evidence.” Alternatively, she suggests, they could simply add birth control to the list with no further ado.

But quick resolution doesn’t look likely. In a move that’s brought unpleasant flashbacks to last Winter and Spring, the Catholic Church is waging its own campaign. According to a letter the U.S. Conference of Catholic Bishops sent to HHS last week, contraceptives and sterilization should not be considered preventive services. “To prevent pregnancy is not to prevent a disease,” the bishops’ letter explains, going on to argue that the interim list, which doesn’t include birth control, should be made permanent.

And then, of course, there’s the debate about abortion, which will be as bitter as it was last time around. Though the final law included abortion language that was less restrictive than the total ban that had been proposed by anti-choice Democrat Bart Stupak, the same Stupak-like language that enraged abortion rights supporters less than a year ago has returned. And this time, the White House and HHS apparently inserted it themselves. After complaints from the National Right to Life Committee this summer, the administration announced that its temporary health plans for high-risk adults could only offer abortion coverage in cases of rape, incest, or life endangerment.

Meanwhile, congressional members who wanted an out-and-out ban on abortion during the first health reform go-round have re-introduced legislation that would, like the old Stupak amendment, ban private insurers from covering abortions.

While their chances of passing the “No Taxpayer Funding for Abortion Act” may be slim, they have a healthy shot at rehashing bitter debates. And, as we’re already seeing with birth control, that can delay access to services, or even prevent them forever.

Photograph of birth control pills by Ceridwen for Wikimedia Commons.

Tags: birth control, coverage for birth control in health care reform, health care reform

—Starting today, insurance companies are no longer allowed to exclude children because of pre-existing health conditions, which the White House said could enable 72,000 uninsured to gain coverage. [New York Times]

—California Senate candidate Carly Fiorina continues her battle against senator Barbara Boxer with a new commercial that targets the Democrat with one charged word: "Arrogance." [Politico]

—Mammograms don't help women over 50 as much as has been believed, new research suggests. [CBS News]

—Lady Gaga and Gwyneth Paltrow are just a two celebrities who are allegedly following Tracy Anderson's baby food diet, but is it good for you? [Jezebel]

—Forget the Tea Party; what about their husbands? Everybody knows some poor guy who married a woman like Christine O'Donnell or Michele Bachmann. [Salon]

Photograph of Carly Fiorina by Justin Sullivan for Getty Images.

Tags: Carly Fiorina and Barbara Boxer, gwyneth paltrow, health care reform, lady gaga, tea party

In a common sense world, there would be no controversy over including contraception in the slate of preventive services that the federal government will soon require insurance companies to offer at no cost to their customers.  Fairness alone should justify it, but there's also the fact that it's universally agreed that the results of not using contraception—unwanted pregnancy, abortion, teenage pregnancy—are best avoided.  But the Heritage Foundation and the National Abstinence Education Association are demanding that the federal government make an exception in the new rules for contraception.  As usual, I'm forced to think that perhaps the anti-choice movement actually prefers a high unwanted pregnancy rate, and therefore a high abortion rate, since they work so hard to preserve it.

Co-pays on birth control currently run anywhere from a reasonable $15 a month to upwards of $50 a month. While this may not seem like a huge deal to many, sadly there are a lot of women who find that birth control pills are priced out of their range.  The Guttmacher Institute found that 18 percent of women on the pill in households that make less that $75,000 a year have resorted to inconsistent pill use to save money.  Of course, if you're in a position where a $50 co-pay stresses your finances that much, you're probably even less likely to be up for having the baby if you get pregnant, and that much more likely to get an abortion.  There's a reason that the United States has the highest teen pregnancy and abortion rates in the developed world, and that's because we're just not as good at using consistent contraception.  And that it's a major hassle and expense to get it is a big part of the reason.

The increasingly standard pro-choice adage—anti-abortion groups, when given a choice between preventing abortion and punishing female sexuality, will choose the latter every time—holds up once again.  I'm almost embarrassed for them at this point, since the bait is offered and they can't help but take it.

Photograph of birth control pills by Tim Matsui/Getty Images News.

Tags: abortion, contraception, health care reform, teen pregnancy

Though health reform has already passed, the fight over what it really means is far from over. Especially when it comes to coverage of contraception, the devil is in the details. The law requires that preventive medications and measures be covered by insurers at no or low cost. But it doesn't specify what qualifies as prevention. So will birth control pills be on the list? 79 percent of women think they should be, according to a new survey of commissioned by the Planned Parenthood Federation of America. (Interestingly, fewer men—68 percent—see birth control pills as preventive health care.)

The chances seem good that the pill will make the cut when the U.S. Department of Health and Human Services issues its guidelines. (The law says this should happen by September, but don't be surprised if it's late.) Secretary of Health and Human Services Kathleen Sebelius seems to be supportive of contraception. And the American College of Obstetrics and Gynecology advocates that family planning should be a part of basic care.

Still, Planned Parenthood is not hedging their bets, having commissioned the survey as a sort of preventive measure of its own. The group smartly links support for insurance coverage of birth control to the 50th anniversary of approval of the pill, which, it notes, has helped to slash numbers of unwanted pregnancies as well as maternal and infant mortality. Though there hasn't been much of a visible effort to push Sebelius to exclude contraception from preventive care, it's not unreasonable to fear one, given how bitter the health reform debate got over women's health issues—both before and after its passage.

Indeed, a flurry of activism to fill in the legislative gaps health reform left around abortion is well underway. Already, two states have passed bills that prohibit health care plans in state-based insurance exchanges from offering abortion services, and 29 have either introduced an opt-out bill, are planning to introduce a bill shortly, or are laying the ground work to introduce a bill as soon as their legislative calendars permit, according to Wonk Room.

With birth control, the fight is likely to be different. Instead of dividing states, we might see some division among methods, with the IUD excluded from coverage, say, while the pill is not.

Photograph of pill packets by Ceridwen, available under a Creative Commons Attribution-Share Alike 3.0 Unported license.

Tags: health care reform, planned parenthood, the pill