My Cato colleague John Cochrane – who is way smarter than I am — has a generally excellent op-ed in today’s Wall Street Journal on ObamaCare’s contraception mandate:

Salting mandated health insurance with birth control is exactly the same as a tax—on employers, on Catholics, on gay men and women, on couples trying to have children and on the elderly—to subsidize one form of birth control…

The tax rate and spending debates that occupy the media are a small part of the effective taxes and spending that the government achieves by these regulatory mandates…

The natural compromise is simple: Birth control, abortion and other contentious practices are permitted. But those who object don’t have to pay for them. The federal takeover of medicine prevents us from reaching these natural compromises and needlessly divides our society…

Sure, churches should be exempt. We should all be exempt.

My only quibble is with his claim, “Insurance is a bad idea for small, regular and predictable expenses.”

That’s generally true. But medicine is an area where, potentially at least, small up-front expenditures (e.g., on hypertension control) could prevent large losses down the road. So it may be economically efficient for health plans to cover some small, regular, and predictable expenses. Both the carrier and the consumer would benefit. In fact, that would be the market’s way of telling otherwise uninformed consumers, “Hey! Controlling your hypertension is a really good for you!” And really, if someone is so risk-averse that they want health insurance with first-dollar coverage of everything – and they’re willing to pay the outrageous premiums that would accompany such coverage — why should we take issue with that?

ObamaCare’s contraceptive-coverage mandate demonstrates that government does  a horrible job of picking only those types of “preventive” services for which first-dollar coverage will leave consumers better off. But I also think advocates of free-market health care generally need to let go of the idea that health insurance exists only for catastrophic expenses.

Cochrane on ObamaCare’s Contraceptive-Coverage Mandate is a post from Cato @ Liberty - Cato Institute Blog

Associated Press photojournalist Noah Berger captured this thousand-word image near the Occupy Oakland demonstrations last month.

(AP Photo/Noah Berger)

Many Cato@Liberty readers will get it immediately. They can stop reading now.

For everyone else, this image perfectly illustrates the ethos of what I call the Church of Universal Coverage.

Like everyone who supports a government guarantee of access to medical care, the genius who left this graffiti on Kaiser Permanente’s offices probably thought he was signaling how important other human beings are to him. He wants them to get health care after all. He was willing to expend resources to transmit that signal: a few dollars for a can of spray paint (assuming he didn’t steal it) plus his time. He probably even felt good about himself afterward.

Unfortunately, the money and time this genius spent vandalizing other people’s property are resources that could have gone toward, say, buying him health insurance. Or providing a flu shot to a senior citizen. This genius has also forced Kaiser Permanente to divert resources away from healing the sick. Kaiser now has to spend money on a pressure washer and whatever else one uses to remove graffiti from those surfaces (e.g., water, labor).

The broader Church of Universal Coverage spends resources campaigning for a government guarantee of access to medical care. Those resources likewise could have been used to purchase medical care for, say, the poor. The Church’s efforts impel opponents of such a guarantee to spend resources fighting it. For the most part, though, they encourage interest groups to expend resources to bend that guarantee toward their own selfish ends. The taxes required to effectuate that (warped) guarantee reduce economic productivity both among those whose taxes enable, and those who receive, the resulting government transfers.

In the end, that very government guarantee ends up leaving people with less purchasing power and undermining the market’s ability to discover cost-saving innovations that bring better health care within the reach of the needy. That’s to say nothing of the rights that the Church of Universal Coverage tramples along the way: yours, mine, Kaiser Permanente’s, the Catholic Church’s…

I see no moral distinction between the Church of Universal Coverage and this genius. Both spend time and money to undermine other people’s rights as well as their own stated goal of “health care for everybody.”

Of course, it is always possible that, as with their foot soldier in Oakland, the Church’s efforts are as much about making a statement and feeling better about themselves as anything else.

The Ethos of Universal Coverage is a post from Cato @ Liberty - Cato Institute Blog

I’m sure that many of you are following the controversy over the Susan G. Komen for the Cure Foundation’s decision to suspend its partnership with and funding of Planned Parenthood. Two thoughts on this:

First, this controversy provides a delightful contrast to the Obama administration’s decision to force all Americans to purchase contraceptives and subsidize abortions.

The Susan G. Komen Foundation chose to stop providing grants to Planned Parenthood. Lots of people didn’t like (and/or don’t believe) Komen’s reasons. Some declared they would stop giving to Komen. Others approved of Komen’s decision and started giving to Komen. Many declared they would start donating to Planned Parenthood to show their disapproval of Komen’s decision.

Notice what didn’t happen. Nobody forced anybody to do anything that violated their conscience. People who don’t like Planned Parenthood’s mission can now support Komen without any misgivings. People who like Planned Parenthood’s mission can still support it, and can support other organizations that fight breast cancer. The whole episode may end up being a boon for both sides, if total contributions to the two organizations are any measure. Such are the blessings of liberty.

Contrast that to Obamacare, which forces people who don’t like Planned Parenthood’s mission to support it.

Second, there seems to be a bottomless well of delusion from which supporters of Planned Parenthood draw the idea that this decision shows Komen has injected politics into its grant-making.

Assume for the sake of argument that the Susan G. Komen Foundation has been hijacked by radical abortion opponents who forced the decision to stop funding Planned Parenthood. Even if that is true, that decision did not inject politics into a process previously devoid of politics.

Millions of Americans believe that Planned Parenthood routinely kills small, helpless human beings. Believe it or not, they have a problem with that. When Komen gives money to Planned Parenthood, it no doubt angers those Americans (and makes them less likely to contribute). When Komen decided that the good it would accomplish by funding Planned Parenthood’s provision of breast exams outweighed the concerns (and reaction) of those millions of Americans, Komen was making a political judgment.

Perhaps Planned Parenthood’s supporters didn’t notice the politics that was always there, since Komen had been making the same political judgment they themselves make. But if Planned Parenthood’s supporters are angry now, it’s not because Komen injected politics into its grant-making. It’s because Komen made a different political judgment and Planned Parenthood lost, for now anyway. (Then again, if donations to Planned Parenthood are the measure, the group may be winning by losing.)

I must confess to a little bit of Schadenfreude here, as those who are complaining about Komen’s decision to defund Planned Parenthood are largely the same folks who applaud President Obama’s decision to force everyone to fund it (and, without a trace of irony, describe themselves as “pro-choice”). I predict that when a future president reverses Obama’s decision, supporters of Obama’s policy will likewise delude themselves that the future president has “injected” politics into the dispute.

UPDATE: The Susan G. Komen Foundation has again adjusted its grant-making policies, and Planned Parenthood will once again be eligible for funding. A reporter asks me: “So what does it mean now that Komen’s reversed itself?” My reply:

It does not mean that politics has been banished from Komen’s decisions. It just means that Komen has again made a political decision that more closely reflects the values of Planned Parenthood’s supporters than its detractors. But that is how we should settle the question of who funds Planned Parenthood: with vigorous debate and by allowing individuals to follow their conscience. When Obamacare ‘settles’ the question by forcing taxpayers to fund Planned Parenthood, it violates everyone’s freedom and dignity.

Two Thoughts on Susan G. Komen & Planned Parenthood is a post from Cato @ Liberty - Cato Institute Blog

President Obama is catching some well-earned blowback for his decision to force religious institutions “to pay for health insurance that covers sterilization, contraceptives and abortifacients.” You see, ObamaCare penalizes individuals (employers) who don’t purchase (offer) a certain minimum package of health insurance coverage. The Obama administration is demanding that coverage must include the aforementioned reproductive care services. The exception for religious institutions that object to such coverage is so narrow that, as one wag put it, not even Jesus would qualify. HHS Secretary Kathleen Sebelius reassures us, “I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.” Ummm, Madam Secretary…the Constitution only mentions one of those things. The Catholic church is hopping mad. Even the reliably left-wing E.J. Dionne is angry, writing that the President “utterly botched” the issue “not once but twice” and “threw his progressive Catholic allies under the bus.”

As I wrote over and over as Congress debated ObamaCare, anger and division are inevitable consequences of this law. I recently debated the merits of ObamaCare’s individual mandate on the pages of the Wall Street Journal. Here’s a paragraph that got cut from my essay:

We can be certain…that the mandate will divide the nation. An individual mandate guarantees that the government—not you—will decide what medical services you will purchase, including contraceptives, fertility services that result in the destruction of human embryos, or elective abortions. The same apparatus that can force Americans to subsidize elective abortions can also be used to ban private abortion coverage once the other team wins. The rancor will only grow.

Or as I put it in 2009,

Either the government will force taxpayers to fund abortions, or the restrictions necessary to prevent taxpayer funding will reduce access to abortion coverage. There is no middle ground. Somebody has to lose. Welcome to government-run health care.

The same is true for contraception. The rancor will grow until we repeal this law.

ObamaCare highlights a choice that religious organizations — such as the United States Conference of Catholic Bishops, where my grandfather served as counsel — have to make. Either they stop casting their lots with Caesar and join the fight to repeal government health care mandates and subsidies, or they forfeit any right to complain when Caesar turns on them. Matthew 26:52.

Contraceptives Mandate Brings ObamaCare’s Coercive Power into Sharper Focus is a post from Cato @ Liberty - Cato Institute Blog

In the Richmond Times-Dispatch, Barton Hinkle notes that the Virginia General Assembly has just passed “tough new regulations on abortion clinics.” And

Suddenly, outraged liberals are sounding remarkably like libertarian advocates of laissez-faire capitalism and the industries they defend.

For instance, abortion-rights supporters already are warning that the heavy hand of government will impose requirements so absurd and so economically burdensome that they will force clinics to close their doors. “What they’ll do is put a burden of extra cost that is not backed up by sound science,” said one abortion provider who spoke on condition of . . . whoops! Actually, those were the words of Alva Carter Jr., chairman of a New Mexico dairy industry group, who was protesting new groundwater pollution regulations last April.

“The scale of the . . . current assault is unprecedented,” complained Planned Parenthood spokes — no, that was The Wall Street Journal, raging last November against the EPA. The paper said the agency “has turned a regulatory firehose on U.S. business and the power industry in particular.”

“The massive red tape . . . threatens to strangle . . . the industry,” complained — well, that was Investor’s Business Daily, writing about the Dodd-Frank financial bill last year. The paper cited a report by the American Bankers Association warning that “the coming ‘tsunami of regulations’ could wipe out hundreds of smaller banks.” Substitute “abortion clinics” for “smaller banks,” and you have the Virginia debate in a nutshell. (And yes, let’s stipulate right here that many so-called conservatives believe in limited government everywhere except the uterus.)

“They could require things that are completely unnecessary.” That actually was a quote from an abortion-rights supporter: Shelley Abrams, the director of A Capital Women’s Clinic in Richmond.

And she is entirely right. Sometimes government does require things that are not strictly necessary. And those requirements impose a heavy financial burden. This is hardly a revelation. Small-government advocates have been saying it for many years. Yelling it, actually, at the top of their lungs. To little avail.

Example: Supporters of abortion rights now worry that even existing clinics might have to obtain a Certificate of Public Need from the state. To which one might reply: Why should they be different? For years, certain voices in Virginia have been suggesting that the COPN process — essentially, a government permission slip for health-care providers — creates an unnecessary market entry barrier. They have argued that government has no business deciding whether a particular community needs a particular health-care facility.

He goes on to note that

when free-marketeers and industry groups gripe about the burden of governmental regulation, they often get truth-squadded by deeply skeptical liberals. On Monday, the AP’s “Spin Meter” gave the gimlet eye to predictions that the Obama administration’s new smog regulations could destroy more than 7 million jobs. The news service pointed out that the researcher who came up with the number was “industry-sponsored.” (Boo.) It lamented the “imprecise economic models” used. (Hiss.) And it pointed out that “those opposed to government regulations rarely mention the potential benefits to society.” Amen, brother.

Hinkle hopes that people concerned about the burden that regulation imposes on abortion clinics will eventually come to recognize that regulation also imposes costs and burdens on every other business.

Jerry Taylor and I have both noted in the past the differing media treatment of abortion and other science and health issues. Looking at two NPR stories on the same day, I praised one on the dangers of abortion pills:

It was a good example of careful, cautious reporting. But why are journalists seemingly much more cautious in reporting medical risks involving abortion than in reporting other kinds of risks? There are plenty of critics of the “junk science” involved in the Vioxx stories; why aren’t they interviewed in Vioxx stories? The numbers were small in the Vioxx study, as in the case of the abortion drugs, but that fact was dismissed in one report and emphasized in the other.

Cato’s Jerry Taylor noticed something similar in a Wall Street Journal column 11 years ago (January 3, 1995; not online). He noted that the Journal of the National Cancer Institute

caused quite a stir by publishing an epidemiological study suggesting that women who have abortions are 50% more likely to develop breast cancer than women who do not….”Not so fast,” countered epidemiologists; a 1.5 risk ratio (as epidemiologists put it) “is not strong enough to call induced abortion a risk factor for breast cancer.”

Taylor agreed that a 1.5 risk ratio is below the appropriate level of concern. But he wondered why “the same risk ratio that was so widely pooh-poohed by scientists as insignificant and inconclusive when it comes to abortion was deemed by the very same scientists an intolerable health menace when it comes to secondhand smoke. Actually, that’s not quite true. The 1.3 risk factor for a single abortion was significantly greater than the really hard to detect 1.19 risk ratio for intensive, 40-year, day-in-day-out pack-a-day exposure to secondhand smoke (as figured by the EPA).”

Pro-Choice Activists Become Skeptics of Regulation is a post from Cato @ Liberty - Cato Institute Blog

Now that a bipartisan coalition in the House has voted to repeal ObamaCare, an even larger bipartisan coalition has approved a Republican resolution directing four House committees to “replace” that ill-fated law.  House Resolution 9 instructs the committees to “propos[e] changes to existing law” with the following goals:

1. “Foster economic growth and private sector job creation by eliminating job-killing policies and regulations.”
2. “Lower health care premiums through increased competition and choice.”
3. “Preserve a patient’s ability to keep his or her health plan if he or she likes it.”
4. “Provide people with pre-existing conditions access to affordable health coverage.”
5. “Reform the medical liability system to reduce unnecessary and wasteful health care spending.”
6. “Increase the number of insured Americans.”
7. “Protect the doctor-patient relationship.”
8. “Provide the States greater flexibility to administer Medicaid programs.”
9. “Expand incentives to encourage personal responsibility for health care coverage and costs.”
10. “Prohibit taxpayer funding of abortions and provide conscience protections for health care providers.”
11. “Eliminate duplicative government programs and wasteful spending.”
12. “Do not accelerate the insolvency of entitlement programs or increase the tax burden on Americans;” or
13. “Enact a permanent fix to the flawed Medicare sustainable growth rate formula used to determine physician payments under title XVIII of the Social Security Act to preserve health care for the nation’s seniors and to provide a stable environment for physicians.”

Three things about the Republicans’ “replace” effort:

First, America’s health care sector has historically been handicapped by one political party committed to a policy of (mostly) benign neglect, and another party committed to degrading that sector’s performance through government subsidies, mandates, price controls, and other exchange controls.  Republicans now appear to be taking a different posture, and that’s encouraging — but not entirely.  When Republicans set their minds to reforming health care, they are often as bad as Democrats.  (See the Republican “alternatives” to ClintonCare.  Or Medicare Part D.  Or #4-#7 above.)  Exactly how House Republicans plan to deliver on the above goals remains to be seen.

Second, no matter how House Republicans plan to deliver on the above goals, their proposals will be preferable to ObamaCare.  Republicans quite literally could not do worse if they tried.

Third, no matter how good the Republicans’ proposals are, they will be utterly ineffective so long as ObamaCare remains on the books.  ObamaCare’s influence is so pervasive and harmful that it makes real health care reform all but impossible.

So it’s a bit premature to be talking about replacing ObamaCare.

Talk of Replacing ObamaCare Is a Bit Premature is a post from Cato @ Liberty - Cato Institute Blog

Kaiser Health News and The Washington Post have posted a piece titled “Campaign Claims: Health Law Myths And Facts,” which examines these common criticisms of ObamaCare:

1. “The law amounts to a ‘government takeover’ of health insurance and health care.” The article’s conclusion: “it falls far short of a government takeover.”  That conclusion rests largely on the fact that “Medical care will be provided by private hospitals and doctors.”  But as I explain in this study, “it is irrelevant whether we describe medical resources (e.g., hospitals, employees) as ‘public’ or ‘private.’ What matters—what determines real as opposed to nominal ownership—is who controls the resources.”  Obama health official Jeanne Lambrew acknowledges as much: “the government role in socialized medicine systems [can include] public financing of private insurance and providers.”  And as I concluded in this study, “Compulsory ‘private’ health insurance would give government as much control over the nation’s health care sector as a compulsory government program.”  I wonder if the article’s authors spoke to anyone who raised this perspective.
2. “The law will gut Medicare by cutting more than $500 billion from the program over 10 years; seniors will lose benefits and won’t be able to keep their doctors.” Conclusion: “The gutting of Medicare claim goes too far…What this means for seniors is a bit murkier.”  True enough: even if ObamaCare’s implausible Medicare cuts take effect, they clearly would not “gut” Medicare.  (BTW, click here or here for a politically sustainable way to restrain Medicare spending.)  The authors also note that Medicare Advantage enrollees would lose some benefits.  But when the article claims that ObamaCare will not eliminate any “basic” Medicare benefits, it neglects to mention that Medicare’s chief actuary estimates that the law could cause 15 percent of hospitals, home health agencies, and other providers to stop accepting Medicare patients.  If your hospital no longer accepts your Medicare coverage, is that not a benefit cut?
3. “The law will cause 87 million Americans to lose their current coverage.” Conclusion: “How true is it?  Partly, at best. But evidence is limited.”  The House Republicans’ Pledge to America claims that ObamaCare “will force some 87 million Americans to drop their current coverage.”  The word drop is a bit strong; it’s more accurate to say that many Americans will have to switch to another plan, even if it’s just a more-expensive version of their current plan.   Indeed, HHS estimates that 69 percent of employer plans will have to do so by 2013.  Yet some people are being dropped from their current health insurance.  When Principal Financial Group leaves the market, its nearly 1 million enrollees will lose their current health plan.  Industry analysts expect more such departures.  Why no mention of that?
4. “The law is driving up costs and premiums and will continue to do so over the next several years.” Conclusion: “There may be very small increases initially.”  Here the article is kinder to ObamaCare than even ObamaCare’s supporters are.  May be?  Even ObamaCare’s supporters admit the law will increase premiums for some people.  Very small increases?   Even HHS estimates that the requirement that consumers purchase unlimited annual coverage could increase premiums for some by 7 percent.  (There’s no mention of Blue Cross and Blue Shield of Connecticut, which says ObamaCare will increase premiums for some of its customers by nearly 30 percent.)  And why only initially?  Do the authors expect that there will be no premium increases when HHS eventually stops issuing waivers?  Or when HHS sets a minimum level of coverage that Americans must purchase in 2014?  Or that ObamaCare has solved the tragedy of the commons?  For support, the article claims, “the Obama administration, citing [various] estimates…says the law isn’t responsible for any increase greater than 1 to 2 percent.”  Actually, that’s not what the administration says — it’s what they want you to think they’re saying.  Read this letter and other administration utterances carefully.  They say “1-2 percent” when speaking of ObamaCare’s average effect on premiums, and “minimal” when speaking of anything other than the average effect.   (The administration’s threshold for “minimal” is presumably somewhere north of 7 percent.)
5. “The law’s expansion of Medicaid will put massive pressure on state budgets at a time when many are already in crisis.” Conclusion: “The impact will probably be small, but it’s hard to say for sure.”  The article only cites figures generated by supporters of the law, who say the impact will be small.  Why just mention that there are figures from the other side?  Why not include them?
6. “The new law uses tax dollars to pay for abortions.” Conclusion: “Open to interpretation.”  This was a missed opportunity to examine two crucial questions.  First, would federal insurance subsidies truly be segregated from the separate premiums that consumers in ObamaCare’s exchanges would have to pay for elective-abortion coverage?  Or would this just be an accounting gimmick?  What would happen, for example, if there were more abortions than an insurer anticipated, and those separate premiums proved insufficient to pay for them?  How would you keep one side of the ledger from spilling over into the other?  Second, would the availability of federal subsidies for health insurance plans that make elective-abortion coverage available as a rider increase enrollment in those plans?  If so, wouldn’t that implicitly subsidize elective abortions?  Rather than examine those questions, the article punted.

On the whole, I’d say this fact check may have been very kind to the new law.

A Less-Than-Rigorous ObamaCare Fact Check is a post from Cato @ Liberty - Cato Institute Blog

The following analogy may help to explain why everyone should be troubled by HHS Secretary Kathleen Sebelius’ efforts to intimidate insurance companies who say unflattering things about ObamaCare.

Last month, Virginia Attorney General Ken Cuccinelli (R), issued an opinion that state regulatory boards already have the authority to impose additional regulations on abortion clinics.  Critics pounced, claiming that the measure could shut down 17 of the state’s 21 clinics. What if Cuccinelli responded with a letter threatening to investigate clinics that “misinform” the public about the costs of such regulation?

What If Cuccinelli Had Sent that Letter to Planned Parenthood? is a post from Cato @ Liberty - Cato Institute Blog

All too often, news stories about proposed new regulations mention all the supposed benefits of the regulation while ignoring such potential costs as higher prices, reduced service, or even the demise of the business. Today I’m glad to see journalists noting those costs right up front in their discussions of a new regulation proposed by Virginia attorney general Ken Cuccinelli. Public radio WAMU says:

Currently there are 21 abortion clinics in Virginia. Abortion service providers say at least 17 of those might shut down if state officials use their authority to regulate those clinics.

Attorney General Ken Cuccinelli says abortion clinics provide many other medical services beyond abortions, so they’re subject to the same regulations as larger medical facilities.

That opinion was issued in response to a request from Virginia State Senator Ralph Smith, who says his only interest is to protect the health of the patient.

“I certainly feel that for the safety of all involved that they should be as regulated as other procedures,” says Smith.

For most clinics, meeting a higher regulatory standard could mean additional equipment or space renovation.

Tarina Keene director of NARAL Pro-choice Virginia says the cost involved could drive some clinics out of business.

Yes, indeed, they noted those potential costs right there in the first line. And so did the Washington Post, front page, third sentence:

Virginia Attorney General Ken Cuccinelli II has concluded that the state can impose stricter oversight over clinics that perform abortions, a move immediately decried by abortion-rights organizations and others as an attempt to circumvent the General Assembly, which has repeatedly rejected similar measures.

Cuccinelli’s legal opinion empowers the Board of Health, if it chooses, to require the clinics to meet hospital-type standards. Abortion-rights advocates say that could force some clinics to close because they would be unable to afford to meet the new requirements.

Now if only we could get journalists to take such prominent note of the costs that new regulations impose on other kinds of services, from lemonade stands to local restaurants to for-profit colleges to internet service providers.

Journalists Warn of Regulation’s Costs is a post from Cato @ Liberty - Cato Institute Blog

A major problem with America’s health care system, both before and after Obamacare, is the fact that consumers very rarely spend their own money when obtaining health care. Known as third-party payer, this problem exists in part because government directly finances almost 50 percent of health care expenditures. But even a majority of supposedly private health care spending is financed by employer-provided policies that are heavily distorted by a preference in the tax code that encourages insurance payments even for routine expenses. According to government data, only 12 percent of health care costs are financed directly by consumers. And since consumers almost always are buying health care with somebody else’s money, it should come as no surprise that this system results in rising costs and inefficiency. This is why repealing Obamacare is just the first step that is needed if policymakers genuinely want to restore a free market health care system (all of which is explained in this 4-minute video).

Unfortunately, many people think that market forces don’t work in the health care system and that costs will always rise faster than prices for other goods and services. There are a few examples showing that this is not true, and proponents of liberalization usually cite cosmetic surgery and laser-eye surgery as examples of treatments that generally are financed by out-of-pocket payments. Not surprisingly, prices for these treatments have been quite stable — particularly when increases in quality are added to the equation.

I just ran across another example, and this one could be important since it may resonate with those who normally are very suspicious of free markets. As the chart from the Alan Guttmacher Institute shows, the price of an abortion has been remarkably stable over the past 20-plus years. Let’s connect the dots to make everything clear. Abortions generally are financed by out-of-pocket payments. People therefore have an incentive to shop carefully and get good value since they are spending their own money. And because market forces are allowed, the cost of abortions is stable. The logical conclusion to draw from this, of course, is that allowing market forces for other medical services will generate the same positive results in terms of cost and efficiency.

None of this analysis, by the way, implies that abortion is good or bad, or that it should be legal or illegal. The only lesson to be learned is that market forces control costs and promote efficiency and that more government spending and intervention exacerbate the third-party payer crisis.

Abortion, Third-Party Payer, and the Cost of Health Care is a post from Cato @ Liberty - Cato Institute Blog

The retirement of Justice John Paul Stevens at the end of the Supreme Court’s current term, and the coming nomination and confirmation process, will doubtless further complicate and delay the Obama administration’s already complicated agenda during this mid-term election year. And the timing cannot be good news for Democrats running for reelection, because the process will serve to highlight their understanding of the Constitution as a document authorizing all but unlimited government in a year in which, thanks to the Tea Party movement, the Constitution is likely to have a prominent place in reelection debates.

Regarding a replacement for Justice Stevens, the nominee will almost certainly come from the Democratic Party’s liberal ranks. As a result, the ideological complexion of the Court is not likely to change, since Justice Stevens, especially in recent years, has been the most reliable liberal vote on the Court, whether on abortion, campaign finance, gun rights, affirmative action, or several other hot-button issues. As the press reviews those decisions over the coming weeks and months, therefore, controversy over the Court will be in the air, adding to what already promises to be a very political year.

Stevens Retirement Ill-timed for Dems is a post from Cato @ Liberty - Cato Institute Blog

According to MSNBC, Democratic leaders have given up on trying to appease pro-life House Democrats:

House leaders have concluded they cannot change a divisive abortion provision in President Barack Obama’s health care bill and will try to pass the sweeping legislation without the support of ardent anti-abortion Democrats.A break on abortion would remove a major obstacle for Democratic leaders in the final throes of a yearlong effort to change health care in America. But it sets up a risky strategy of trying to round up enough Democrats to overcome, not appease, a small but possibly decisive group of Democratic lawmakers in the House…

Democratic Rep. Henry Waxman of California, chairman of the Energy and Commerce Committee…predicted some of the anti-abortion lawmakers in the party will end up voting for the overhaul anyway.

Pro-life Democrats will vote for taxpayer-funded abortions?  Without even a fig leaf of a compromise?

ObamaCare Will Include Taxpayer-Funded Abortions is a post from Cato @ Liberty - Cato Institute Blog

Newsweek‘s Sarah Kliff nicely summarizes why abortion could be THE issue that stops ObamaCare.  I’ve made a similar argument in a paper on ObamaCare’s individual and employer mandates.

Two factors seem most salient:

1. One side must lose. ObamaCare would so infuse federal money into private insurance markets that either (A) taxpayers will be forced to pay for elective abortions, which would be unacceptable to pro-life Democrats, or (B) the restrictions necessary to prevent taxpayer funding would curtail access to private abortion coverage — even for women who don’t receive federal subsidies — which would be unacceptable to pro-choice Democrats.  Abortion is not one of those issues where opposing sides can meet in the middle.  There’s no way to, ahem, split the baby.
2. Abortion may be the one issue that Democrats care about more than health care. Democrats may therefore prefer to let ObamaCare die than violate their principles on abortion.  One can imagine pro-life Democrats saying, Health reform, yes — but not at the expense of the unborn, just as one can imagine pro-choice Democrats saying, Health reform yes — but not at the expense of a woman’s right to choose.

No matter which way ObamaCare comes down on abortion, the legislation could lose enough House Democrats to fall short of the 218 votes needed to win.

The Small Matter of Abortion is a post from Cato @ Liberty - Cato Institute Blog

• Report: New threats to free speech.

• The politics behind the health care overhaul.

• Mass corruption in Afghanistan. Malou Innocent: “Washington has already surged into Afghanistan once this year. The United States should not spend more American blood and more of its ever-diminishing financial resources to prop up Karzai’s ineffectual regime.”

• A government takeover of health care is not pro-choice — for anyone: “Whatever your views on abortion, the fight over abortion in the Obama health plan illustrates perfectly why government should stay out of health care. When the government subsidizes health care, anything you do with that money becomes the voters’ business. And rather than allow for choice between different ways of doing things, the government typically imposes the preferences of the majority — or sometimes, a vocal minority — on everybody.”

• Podcast: “A Proposed Beat Down for Banks“

Monday Links is a post from Cato @ Liberty - Cato Institute Blog

The fat lady hasn’t even started to warm up yet.

The narrow 220-215 victory in the House on Saturday night was a step forward on the road to a government takeover of the health care system.  But as close and dramatic as that vote was, that was the easy part.  The Senate must still pass its version of reform—which will not be the bill that just passed the House.  Nancy Pelosi was, after all, able to lose the votes of 39 moderate Democrats.  Harry Reid cannot afford to lose even one.  A conference committee must reconcile the two vastly different versions.  And then, Pelosi must hold together her 3 vote margin of victory (if it gets that far).  Yet several House Democrats who voted for the bill on Saturday said they did so only to “advance the process.” Their vote is far from guaranteed on final passage.  And, House liberals are almost certain to be disappointed by the more moderate bill that may emerge from the conference.

Among the more contentious issues:

Individual Mandate: This should’ve been low-hanging fruit. Democrats agreed on a mandate early in the process. But it became increasingly plain that a mandate would hit those with insurance as well as the uninsured — forcing people who are happy with their plan to switch to a different, possibly more expensive plan. With this mandate now being seen as a middle-class tax hike, qualms have developed.  The House bill contains a strict mandate, with penalties of 2.5 percent of income backed up by up to five years in jail.  The Senate Finance Committee, on the other hand, watered down the mandate’s penalties and delayed the mandates implementation.

Employer Mandate: The House bill also contains an employer mandate, a requirement that all but the smallest employers provide insurance to their workers or pay a penalty tax of up to 8 percent of payroll.  The Senate,  looking at unemployment rates over 10 percent, seems unlikely to include an employer mandate.

The Public Option: The House included, if not a “robust” public option, at least a semi-robust one.  But moderate Democrats in the Senate are clearly not on board.  Joe Lieberman (I-CT) says that he will join a Republican filibuster if the public option is included.  Harry Reid is trying various permutations: a trigger, an opt-in, an opt-out.  But as of now there is not 60 votes for any variation.

The Sheer Cost: Fiscal hawks like Sen. Evan Bayh (D-IN) say they will not support a bill that adds to the deficit or spends too much.  But the house bill cost a minimum of $1.2 trillion.

Taxes: The House plan to add a surtax on incomes of $500,000 or more a year has no support in the Senate. At the same time, the Senate plan to slap a 40 percent excise tax on “Cadillac” insurance plans is unacceptable to key Democratic constituencies like labor unions.

Abortion: Conservative Democrats insisted on a strict prohibition on the use of government funds for abortion.  The bill could not have passed without the inclusion of that provision.  House liberal swallowed hard and voted for the bill, despite what they called “a poison pill” anyway with the expectation that it will be removed later.  If the final bill includes the prohibition at least a couple liberals could defect.  If it doesn’t, conservative Democrats won’t be on board.

Immigration: The Senate Finance Committee included a provision barring illegal immigrants from purchasing insurance through the government-run Exchange.  The House Hispanic Caucus says that if that provision is in the final bill, they will vote against it.

As if these disagreements among Democrats wasn’t bad enough, public opinion is now turning against the bill.

President Obama has called for a bill to be on his desk before Christmas—the latest in a series of deadline that are so far unmet.  It is hard to see how Congress can meet this one either.  The Senate has not yet received CBO scoring of its bill and is not prepared to even begin debate until next week at the earliest.  That debate will last 3-4 weeks minimum, assuming there are 60 votes for cloture.  That means, the bill cant’ go to conference committee until mid-December, even if everything breaks the way Harry Reid wants.  Privately, Democrats are now suggesting late January, before the State of the Union address, is the best they can do.

The fat lady can go back to sleep—this isn’t over yet.

Health Care: Not Close to Over is a post from Cato @ Liberty - Cato Institute Blog

In my recent Cato paper, “All the President’s Mandates: Compulsory Health Insurance Is a Government Takeover,” I explain that if Congress compels Americans to purchase health insurance, it would “inevitably and unnecessarily open a new front in the abortion debate, one where either side—and possibly both sides—could lose.”

Slate‘s William Saletan explains how the pro-choice side could lose:

This week, the Senate finance committee is considering amendments that would bar coverage of abortions under federally subsidized health insurance. Pro-choice groups are up in arms. After all, says NARAL Pro-Choice America, “In the current insurance marketplace, private plans can choose whether to cover abortion care—and most do.” If Congress enacts subsidies that exclude abortion, “women could lose coverage for abortion care, even if their private health-insurance plan already covers it!“…

The argument these groups make is perfectly logical: If you standardize health insurance through federal subsidies and coverage requirements, people might lose benefits they used to enjoy in the private sector. But that’s more than an argument against excluding abortion. It’s an argument against health care reform altogether.

Saletan also explains why pro-life and pro-choice positions on Obama’s health plan are irreconcilable:

To get what they consider neutrality, pro-choicers have to make pro-lifers pay indirectly for abortions. And to keep what they consider clean hands, pro-lifers have to make abortion coverage federally unsupportable and therefore, in a subsidy-dependent system, commercially nonviable.

Rather than an argument against all health care reform, I’d say this is an argument against reforms that expand government subsidies or otherwise give government the power to choose what kind of insurance you purchase.  Fortunately, there are better ways to reform health care.

“Keep Your Subsidies off My Ovaries” is a post from Cato @ Liberty - Cato Institute Blog

In a twist on the “lack of deep thinking” idea, part of what might be going on in Sotomayor’s head—why she keeps answering questions about judicial philosophy with reference to precedent rather than constitutional first principles is because she’s not an originalist. How can we hope for her to tell us her understanding of the meaning of the constitutional text, after all, if that text’s meaning changes with the times?

For example, Stuart Smalley Al Franken asked Sotomayor point blank, “do you believe the right to privacy includes the right to have an abortion?” The nominee began here response with: “The Court has said….” That is, it is not the Constitution—whatever your view of it may be, whether you think it contains a right to abortion or not—that is the supreme law of the land, but what nine black-robed philosopher-kings say. Of course, if your (non-)theory of constitutional interpretation is to keep “improving” the document—and to keep one step ahead of public opinion, so judges can effect social “progress”—then it’s irrelevant what the Constitution said before the Supreme Court put its gloss on it.

And if you subscribe to this “living Constitution” or “active liberty” theory, then naturally the life experiences of a “wise Latina,” along with lessons from foreign and international law—which, Sotomayor said as recently as her April speech to ACLU, get a judge’s “creative juices flowing”—are all valid parts of your jurisprudential toolkit.

CP Townhall

Lack of Deep Thinking = Belief in the Living Constitution? is a post from Cato @ Liberty - Cato Institute Blog

It strikes me that Sotomayor has been fairly forthright in her responses to questioning, not hiding too much behind the tired cliché that she can’t answer a question because it could lead to prejudging a case—certainly far less than Ruth Bader Ginsburg and even John Roberts.  Still, on several important issues, such as property rights, national security law, abortion, and even her overall judicial philosophy, she has appeared disingenuous in saying that she has no firm views on the subject—hiding behind precedent again and again as if first principles didn’t exist.  In other words, she says a lot—displaying a broad knowledge of cases and legal doctrine—without answering larger questions.  She answers questions about what the law should be with what the law is, questions about what the Constitution says with what the Supreme Court has said about the Constitution.

This would be barely appropriate for a nominee to a lower court, who is, of course, bound by precedent.  But senators rightly want to know a Supreme Court nominee’s preferred legal theories, what her view of the Constitution is unencumbered by others’ attempts to interpret that document.

The more Sotomayor speaks, the more it becomes clear that these types of nonanswers, this inability to see (or lack of desire to express) a big picture view, is her own essence.  It continues a pattern that is evident from her judicial opinions, which are mostly unremarkable and, in the neutral sense of that term, unimpressive.  For all her career success and a personal story we should all celebrate, she is an average judge who apparently gives little thought to the broad swath of law and where her rulings fit into that.

That is, Sonia Sotomayor is not a Cass Sunstein or Larry Tribe or Elana Kagan or (fellow circuit judge) Diane Wood.  She is not a scholar or an ideologue.  Her liberality is reflexive and warmed-over, a product of the post-modern educational environment that formed her in the 1970s—complete with ethnic activism—but not an intellectual edifice.  This does not mean she isn’t a danger to liberty and the rule of law, or that her votes and opinions won’t harm the Constitution.  But it does indicate that, for all her bluster about being a “wise Latina,” she is little more than a left-leaning empty robe.

CP Townhall

Sotomayor Displays a Lack of Deep Thinking is a post from Cato @ Liberty - Cato Institute Blog

The killing of abortion docter George Tiller is an interesting microcosm of how terrorism works — and how it can be suppressed. I wrote here the other day denying that Tiller’s killer is a terrorist. Refusing to call him a terrorist will deny him strategic gains and reduce violence in the future.

Now the AP reports the killer’s claim from jail that similar violence is planned across the nation. This kind of statement is not likely prediction, but rather an appeal to like-minded people to join him. Like terrorists, he has a strong ideological commitment but almost no way to advance his cause other than by inducing missteps on the part of his opponents.

Letting Dr. Tiller’s killer wear the mantle of terrorism would enthuse people who might be inclined to join his cause and carry out future attacks on abortion providers. The best strategic response is to downplay his claims, refuse to call him a terrorist, and let the criminal process run its course.

Denying ‘Terrorists’ the Label is a post from Cato @ Liberty - Cato Institute Blog

I’ve been intrigued to watch the foment about whether the man who killed Dr. Tiller is a terrorist.

At the ThinkProgress Wonk Room, Matt Duss says, emphatically, “Yes, Dr. Tiller’s Murderer is a Terrorist.” LifeNews.com, a nominal representative of the other “side,” is equally eager to report that abortion activists are calling pro-life advocates “terrorists.”

Mostly, it appears, the Tiller/terrorist question is emotional energy-drink for both sides of the abortion debate. We should let these ideologues be ideologues and move on. But it is worth thinking about the issue in terms of terrorism broadly and in terms of reducing violence prospectively.

Here’s an interesting statement of Duss’ about the killing: “It’s [sic] goal was to intimidate women against exercising their right to choose abortion, and to intimidate doctors who perform them.” Perhaps Duss has had an opportunity to interview Tiller’s killer, who has been highly forthcoming, but more likely Duss is imputing motives to the killer that fit his own worldview and that start an argument he wants to have.

Knowing nothing about the killer, I think it’s a possibility that he might have wanted to avenge what he sees as wrongful deaths that the doctor has brought about, with no contemplation of the prospective effect on women or doctors. The killer might have been trying to impress someone he knows who hated Dr. Tiller. Perhaps he suspected Dr. Tiller was sleeping with his wife (very unlikely, but possible). I don’t think that Duss is wrong, but ascribing motivations to people based on the results they cause is a fascinating habit. To match the hugely shocking results of the 9/11 attacks, President Bush supplied huge reasons that terrorists do what they do, and a deeply unproductive “war on terror” was on.

Now, if the goal is to reduce violence, calling Dr. Tiller’s killer a “terrorist” seems distinctly unhelpful. The criminal laws against homicide contain every penalty that the killer deserves, and he should get justice as the criminal law prescribes it. There is no criminal offense called “terrorism” – and there shouldn’t be, for reasons that follow.

The question in play with Tiller/terrorism goes to future violence – the actions of others. If Tiller’s killer has allies – direct allies or people who agree with what they think he was doing – calling him a “terrorist” will tend to exalt his actions to them. They will perceive it less as an ugly murder and more as political violence done for a cause – something righteous.

If Tiller’s killer were to become widely viewed as a “terrorist,” this would deepen the resolve of his “allies” because they would come to regard the political structure as arrayed against them and their cause. Tiller’s killer would look heroic to them, and his example is one they might seek to emulate in their ideological struggle.

The better approach is to methodically and calmly apply the criminal law to the killing – without rhetorical excess. Putting aside the “political” content will let the ugliness and sadness of the murder carry the day in terms of public attention. This will signal to abortion opponents who might be susceptible to “radicalization” that violence is something sad and pathetic people do. The criminal law accords criminals the justice they are due, families grieve, and the society moves on.

These messages will drain power from the idea of using violence to advance political aims. The best way to talk about the killing of Dr. Tiller is to deal with it only as a grisly and pathetic murder – if the goal is to protect doctors who perform abortion from future violence.

Is Dr. Tiller’s Killer a Terrorist? is a post from Cato @ Liberty - Cato Institute Blog