Browsing the blog archives for January, 2011.

Activist Judge Legislates From the Bench

Health Care

Another federal judge has found the Affordable Care Act unconstitutional because of the individual mandate. That’s two federal judges saying it’s not constitutional, two saying it is, and about a dozen who wouldn’t even hear the challenges.

Even though the large majority of constitutional scholars and law professors say the arguments against the individual mandate are bunk, that doesn’t mean our illustrious Supreme Court won’t rule against it when it gets to the Court. As Greg Sargent says, the future of our health care is in Justice Anthony Kennedy’s hands.

The ever optimistic Ezra Klein

There’s a chance conservatives will come to seriously regret this stratagem. I think it’s vanishingly unlikely that the Supreme Court will side with Judge Vinson and strike down the whole of the law. But in the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process — as that would sidestep both legal attacks and the supermajority requirement.

I still say the biggest reason the Affordable Care Act is safe is that the insurance industry wants to keep the individual mandate. And I think this is a development the Republicans didn’t anticipate and weren’t prepared for. They’ve got the faithful peons worked up into a tizzy to fight the evil mandate. But insurance companies are forging ahead re-tooling their business models and preparing for millions of new customers. If that gets yanked out from under them in a year or two by the Supreme Court, they will not be happy. Not happy at all.

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Reactions to Egyptian Uprising From Potential GOP Presidential Candidates

Obama Administration

Possible 2012 Republican presidential candidate Mike Huckabee, who is visiting Egypt, has come out on the side of propping up Mubarak and putting down the pro-democracy uprising. This essentially puts him on the same side as Israel but in opposition, so far, to the hard-core neocons, which is a very weird place to be in.

Possible 2012 Republican presidential candidate Sarah Palin has addressed the Egyptian issue and has firmly come out on the side of Sarah Palin. Thanks to a “media boycott” (i.e., Dana Milbank, in tongue-in-cheek mode), she trusts the media won’t blame her for it.

Possible 2012 presidential candidate Mitch Daniels was asked about Egypt by Laura Ingraham, and punted. “I don’t have a lot to say about it. I’m just a provincial governor out here.” No doubt President Obama’s political team is saving that sound byte for possible future use

I’ve been looking for positions on Egypt from other possible 2012 presidential candidates, but so far have not found anything for the following —

Mitt Romney
Newt Gingrich
Tim Pawlenty
Haley Barbour

If you do run across any positions on Egypt from any of the gentlemen listed above, do let me know.

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Israel Sides With Mubarak?

Obama Administration

I wrote a couple of days ago about the problem posed by the Egyptian uprising to the rightie worldview — namely, which side to root for. From what I can see, the rightie blogosphere is divided between those who think the uprising was inspired by Condi Rice and is a vindication of George W. Bush’s pro-freedom foreign policy; and those who think the uprising is being led by the Muslim Brotherhood and secretly orchestrated by Barack Obama as part of his plot to turn the U.S. into a Muslim Caliphate. We could argue with opinion is nuttier, as if it matters, but let’s not.

Anyway, the first view is now muddied by the news that Israel is asking western nations to stop dissing Mubarak and instead take steps to prop up his regime. From Haaretz:

Jerusalem seeks to convince its allies that it is in the West’s interest to maintain the stability of the Egyptian regime. The diplomatic measures came after statements in Western capitals implying that the United States and European Union supported Mubarak’s ouster.

See also Ian Black at The Guardian.

Since the pro-Israel neocons at National Review are chief among those cheering for the uprising (as vindication of George W. Bush’s Middle Eastern policy), it’s going to be fun to see how, or if, NRO responds to this.

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When Adults Make Decisions

Obama Administration

As Egypt continues to unravel, some rightie bloggers have seized a story at Huffington Post to bash the Obama Administration. The article says that in 2009 the Obama Administration deeply cut money for programs designed to promote democracy in Egypt, partly at the urging of the embassy in Cairo.

Now, in retrospect, the White House might deeply regret that decision. But, y’know, that’s how it is with cutting government programs. It isn’t painless.

Sen. Rand Paul last week (before Egypt began to unravel) was marching around boldly declaring that all foreign aid should be cut, which would include what’s left of the programs to promote democracy. And, y’know, in their speeches Republicans are gung-ho for cutting just about all government spending that’s not attached to a defense contract.

But when some program is cut, and there’s a detrimental effect as a result, Republicans turn around and scream about government incompetence.

(BTW, our buddy the brilliant Jim Hoft strikes again — he begins his bashing of Obama with “Obama failed to support the people of Georgia when Russian tanks plowed across the border,” which happened in 2008. I don’t remember what Obama might have said about it, but George W. Bush was still POTUS at the time.)

They did the same thing with the cuts to Medicare Advantage in the Affordable Care Act. Lots of people do like their Medicare Advantage plans, but it’s hard to justify taxpayer subsidy of them when the same benefits cost less when provided by regular Medicare. So, cutting Medicare Advantage subsidies (eventually a Medicare Advantage plan will cost taxpayers the same as a regular Medicare plan) was kind of a no-brainer, except to Republicans, who played up the cuts in their campaign against Health Care Reform.

Ironically, the much-celebrated “roadmap” of Paul Ryan would do away with Medicare entirely, although you don’t hear that spoken out loud by Republicans much.

For the record, regarding foreign aid — I’d like to cut back on military aid and use the money for medical, nutritional, educational, and other non-military assistance.

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Good Guys, Bad Guys, Egyptian Guys

Obama Administration

It appears Egypt may be on the edge of a full-scale revolution. Heather Hurlburt has a good backgrounder at The New Republic for those of us who need a playbook.

The uprising in Egypt appears to be blowing holes in the Right’s simplistic good guys-bad guys worldview. The much-maligned Al-Jazeera is turning out to be the best source of information on what’s going on as well as the independent voice of the people on the streets. This doesn’t surprise me; Al-Jazeera provides some good reporting about the oppression of Buddhism in Tibet. It’s a genuinely professional news organization, from what I can see.

See also “Al Jazeera’s Egypt coverage embarrasses U.S. cable news channels.” U.S. cable news channels stopped being news channels many years ago. They are entertainment/propaganda channels. They’ve cut back news gathering, especially foreign reporting, and replaced them with mostly insipid “opinion” shows, because it’s cheaper to put some political hacks and gasbags in front of a camera than to maintain news bureaus. And through the Bush years all the cable outlets were way too obsequious to the Bushies and suppressed honest assessment of anything going on in the Middle East.

Other reactions from the Right are all over the map. Possibly the most surreal is by Jay Nordlinger, who seems to think the Egyptian protesters are being led (in abstentia) by George W. Bush. On the other hand, I understand Pam Geller is rooting for Hosni Mubarak, because she thinks the protests are the work of the Muslim Brotherhood. No one who has any clue what’s really happening thinks the Muslim Brotherhood are much of a factor, however.

The Telegraph — not always a reliable source — reports that the American government has secretly been backing the group behind the current uprising for the past three years. Jim Geraghty complains that the Obama Administration supports the Mubarak government’s attempts to crack down on the protesters. Um, in what alternative universe?

Taking a page from Cold War history, the genuinely evil Investors Business Daily accuses the Obama Administration of “losing Egypt.” I think the editorial writer thinks that the U.S. should prop up the Mubarak government, but it’s hard to tell. (IBD also seems to think that President Carter orchestrated the overthrow of the Shah of Iran, which is not how I remember it.)

Most knowledgeable commenters say that the U.S. can’t control what goes on in Egypt, one way or another. The Obama Administration has to signal to the people of the Middle East that we support democratic reform and liberation from oppression, while signaling to other Middle Eastern leaders that the U.S. does not support the violent overthrow of their governments. In other words, they gotta do nuance. And you know how righties hate nuance.

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Just an Emotional Issue


The outrage du jour is that House Republicans are backing a bill that tightens already restricted federal funding for abortion by re-defining “rape.” The old restrictions were that federal funds could be used to pay for abortions in the case of rape, incest, or to save a woman’s life. But H.R.3 – No Taxpayer Funding for Abortion Act specifies that the rape exception is only for forcible rape.

This leaves out non-forcible rape, which would include underage, physically helpless, and mentally incompetent victims. I believe it would leave out a woman who was violated after being doped with roofies. From West’s Encyclopedia of American Law:

Most jurisdictions have special statutes for sex offenses committed with an underage victim, usually termed statutory rape laws. … The law also considers physically helpless and mentally disabled victims to be incapable of giving consent to sexual acts. Physically helpless individuals include those who are unconscious, paralyzed, restrained, or otherwise incapable of resisting the sexual acts. Mentally disabled victims may include those who are permanently mentally disabled or those who are drugged and in a temporary state of mental disability. Some state statutes even include involuntarily intoxicated individuals in the category of temporarily mentally disabled victims.

Further, under the proposed law, if the parents of a 12-year-old impregnated by a 34-year-old pay for an abortion themselves, they cannot use funds from a Health Savings Account or use the cost as a medical deduction for tax purposes.

So far reactions to this on the blogosphere are coming from the Left, with the exception of James Joyner, who writes that “the rape exception was never logical but rather a concession to an emotional issue.”

That is, if one believes a fetus at a given stage of development is a human life worthy of protection by law, the events leading to the pregnancy are irrelevant. We don’t, after all, countenance the murder of post-birth children conceived pursuant to rape. But the idea that a woman should be forced to bear the emotional trauma of carrying a constant reminder of a violent, awful crime for nine months — and then be forced to either look at the child every day or bear the alternative trauma of giving up the baby — is just so emotionally wrenching that we’ve carved out an exception.

So big of us. But Joyner keeps digging —

But does this really hold in the case of a statutory rape which, despite the name, frequently isn’t really a rape at all?

No? Who says?

Again, this is a queasy subject.

In other words, it’s “just emotional.”

We can all agree that a 9-year-old lacks the emotional maturity to give meaningful consent to sex with an adult and that an adult who violates a child is a rapist. But we’ve raised the bar on childhood in recent years, extending it well into puberty. Within living memory, it was common, at least in rural areas, for girls to marry and start having children in early puberty. Generally, with men significantly older than they were. Now, though, most states make it a crime for a 19-year-old to have consensual sex with their 16-year-old girlfriend.

Is a pregnancy arising from that circumstance really comparable to one arising from being jumped in a dark ally by a stranger and violated under threat of death? Really?

Well, Joyner, I’d say that until you’ve been through it yourself you have no way to know. But then, I’d argue that the people with “emotional” issues are the Republicans who would rather compel a 12-year-old, or someone too mentally or physically impaired to resist, to go through with a pregnancy than help her terminate it. And I think it’s a damn shame people let their emotions get in the way of judgment or even an average amount of human compassion. But that’s Republicans for you.

Joyner doesn’t agree with the law, mind you, but only because he thinks it’s bad politics.

Steve M. reminds us that many righties continue to cling to the fiction that rape doesn’t result in pregnancy, anyway, and he links to some “right to life” sites making that claim.

Dennis G. at Balloon Juice re-names the bill The Rapist Protection Act of 2011. Yeah, pretty much. See also Scott Lemieux.

Related: See Nicholas Kristof, “Tussling Over Jesus.”

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Obama Administration

Remember the hysterical news stories generated by by Rupert Murdoch’s New York Post about the “union thugs” who deliberately sabotaged snow removal in New York City? And how I voiced skepticism at the time because the one and only source on this story was one city councilman from Queens?

Well, the claim is being investigated by the city, the state, and the feds, and so far no corroboration has been found.

The New York Daily News:

A local newspaper, whose name rhymes with toast, made front-page gospel out of Halloran’s account. He became a media sensation, retelling his story on CBS, CNN and Fox. Newspapers as far away as Sydney reported that sanitation workers had dogged their responsibilities.

It was noted that ambulances had been delayed and deaths had occurred. Halloran did not disagree when a TV interviewer finished a request for details with, “I mean, we lost a child.”

Quicker than you can say manslaughter, the Brooklyn U.S. attorney convened a grand jury.

And – wouldn’t you know it? – the transportation supervisors may not be corroborating Halloran’s account.

And – wouldn’t you know it? – he shifted to saying that maybe the workers had just subtly gotten the message that they shouldn’t try too hard.

And – wouldn’t you know it? – he is trying to evade having to tell the grand jury the names of his supposed sanit sources.

Halloran claims, preposterously, that they spoke to him under attorney-client privilege. Last we heard, the privilege doesn’t apply to the names of clients.

He may not be able to wiggle out of this gracefully. Heh. BTW, the only recent mention of this story I could find in the New York Post was buried deep in a wire service story about recent snowfall. I couldn’t find any mention of the story on the Fox News site since their January 4 story about the federal probe.

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When Political Ideology Is a Religion

Obama Administration

Must-read blog post by Matt Miller on Paul Ryan’s “roadmap”:

According to the Congressional Budget Office, Ryan’s plan would result in annual deficits of between 3.5 and 4.5 percent of GDP between now and somewhere after 2040, with a balanced budget coming only around 2063. This would add at least $62 trillion to the national debt over the period. (My estimate is conservative mostly because the independent Tax Policy Center says Ryan’s tax reforms would produce far less revenue than Ryan required the CBO to assume.)

Michael Tomasky comments:

Ryan’s plan slashes Social Security and Medicare, the latter by 80% around 70 years from now (come to think of it, when my daughter would be using it). It wouldn’t balance the budget, as Miller said, until 2063. It would make the debt problem worse by a staggering $62 trillion. It would slightly raise taxes on the middle class, according to reviews by admittedly liberal (though expert) policy analysis shops.

And why would it do all these things in the name of fiscal prudence? Because in keeping with supply-side religion, it must first and foremost do that which supply-side economics holds as its First Commandment: cut taxes on the morally superior rich. It is madness. It is a joke.

And as Tomasky also points out, Ryan is the GOP’s acknowledged expert on fiscal and budgetary policy. In other words, as insane as Ryan’s ideas are, they’re the best the GOP has.

Of course, few of the American people will ever hear how insane Ryan’s plan is. They especially won’t hear it from Ryan. Joan Walsh writes,

The president was lucky to have not one but two GOP rebuttals, and they were equally strange and dishonest. Rep. Paul Ryan railed against the deficit without proposing even one specific cut. He didn’t talk about his own infamous “Roadmap,” maybe because most analysts have called it a budget buster, even though it essentially replaces Social Security and Medicare with vouchers. The Congressional Budget Office estimates Ryan’s plan wouldn’t balance the budget until 2063, and would add $62 trillion to the debt by then. Citizens for Tax Justice said Ryan’s Roadmap raises taxes on 9 out of 10 taxpayers and while slashing them for the wealthiest.

Wisely, Ryan talked about none of that. He promised to repeal “Obamacare” and replace it with “fiscally responsible patient-centered reform,” but didn’t say word one about what it would entail. Most dishonestly, Ryan said Democrats had overspent “to the point where the president is now urging Congress to increase the debt limit,” ignoring the fact that Congress raised it seven times under President Bush. That’s your new chair of the House Budget Committee. (Update: Somehow I missed the best line in Ryan’s rebuttal, in which he worries we’re headed toward “a future in which we will transform our social safety net into a hammock, which lulls able-bodied people into lives of complacency and dependency.” I want to ask the 14.5 million unemployed Americans, and the millions more who are underemployed, how they’re enjoying their hammocks. Leave it to a Republican to come up with such vivid metaphors of leisure to talk about suffering. It’s the only way they can relate.)

Paul Krugman wrote a couple of blog posts (“The Ryan Response” and “Shiny Lazy People” in which he points out that Ryan’s SOTU response was one lie after another. But I also want to note that recently Krugman has been commenting that rightie economic policies are not based on analysis and projection of possible results, but on morality. And earlier his week, he wrote a post about the “war” on the idea that a shortage of demand can hurt the economy.

… it’s becoming clear that many people don’t so much disagree with the idea that demand matters as find it abhorrent, incomprehensible, or both. I fairly often get comments to the effect that I can’t possibly believe what I’m saying about monetary or fiscal policy, that no sensible person could believe that printing money or engaging in deficit spending will increase output and employment — never mind that all I’m saying is what Econ 101 textbooks have been saying for the last 62 years. …

… It’s becoming clear to me that a substantial number of writers on economics find the whole idea that the economy can suffer because people are too thrifty, insufficiently willing to spend, deeply repugnant. I’m the sort of person who finds the notion that sometimes virtue is vice and prudence folly interesting; but it’s clear that a number of people find that notion just plain evil. The world shouldn’t be like that — and therefore it isn’t.

It’s also interesting to me that while Republicans blame President Obama’s policies for continued high unemployment, they also seem to cling to the neo-Calvinistic idea that if someone doesn’t have a job (or healthcare, or a home), it’s his own fault, no matter the circumstances. And as Krugman has pointed out in several places recently, righties think that taxing them to provide benefits for others is not just bad policy, but immoral.

So it doesn’t matter to them that the widening income inequality that “conservative” economic policies have brought us lo these past thirty years is damaging to the United States as a whole. Their religion tells them otherwise, and that’s that.

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State of the Union — Comment Away

Obama Administration

The State of the UnionWhile you’re waiting for the SOTU — or if you’re bored with the SOTU — here’s something else to talk about.

Antonin Scalia’s Constitution School is not following the script. Apparently the House organizers wanted Scalia to tell them that earmarks are unconstitutional, and he shot that idea down. See also “Scalia Slaps Down GOP’s Tentherism.”

Now-defunct Bear Stearns has been accused of flagrantly cheating its clients through mortgage securities. See also “E-mails Suggest Bear Stearns Cheated Clients Out of Billions.”

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The Answer Is No


William Saletan’s highly annoying article asks the question, “Is it OK to abort a viable fetus? An answer to pro-choicers on Kermit Gosnell.” Like “pro-choicers” were lining up to defend Kermit Gosnell? Not that I’ve seen.

Then he says,

Gosnell stands charged with abortions beyond the 24-week gestational limit prescribed by Pennsylvania law. I asked the feminist writers whether, in the name of women’s autonomy, those charges should be dropped.

Gosnell is charged with a lot of things, including infanticide, and among those charges is the accusation that he lied to patients about how far along they were and put their lives at risk through careless and unethical medical practices. I don’t see “women’s autonomy” there; I see exploitation. The Gosnell case is not relevant to the question of gestational limits, and it’s dishonest of Saletan to drag it in and use it for a “hook” for his challenge to reproductive rights.

However, as annoying and intellectually dishonest as Saletan’s abortion articles tend to be, he has a point that many abortions rights activists do seem loathe to answer the simple question — is it OK to abort a viable fetus?

I have believed, since Roe v. Wade was decided, that NARAL and other reproduction rights advocacy groups made a huge mistake by not advocating a clear gestational limit on elective abortions per the Roe guidelines — 24 weeks’ gestation, or the medically recognized threshold of viability. Doing that would have pre-emptively disarmed most of the anti-choice propaganda cranked out over the years. And, in fact, today post-viability elective abortions (with exceptions for life and health of the mother) are prohibited in nearly every state, but I don’t think most people realize that.

I’ve been digging through all kinds of data on abortion for years, and it’s my understanding that there is a gestational limit to elective abortion somewhere in the laws of even the most liberal nations, such as The Netherlands (24 weeks’ gestation, as I remember). In some European countries (Denmark, for example, unless it’s been changed recently), it’s as early as 12 weeks’ gestation. After that point, a woman who wants to terminate a pregnancy has to jump through a number of legal and medical hoops to do so. To my mind 12 weeks is a tad early; but my point is that among the industrialized democracies some kind of gestational limit is the norm, and women understand that if they’re going to abort, they need to get it done before that time. End of story.

I understand there are valid reasons why women postpone abortion. They may not have the money to pay for one; they may have to travel a long distance and arrange for an overnight stay somewhere because of some mandatory “waiting period” between the time an abortion is requested and the time it is performed. They may dread walking through a gauntlet of screeching anti-rights goons. They may be required to get permission from legal guardians or a spouse, and cannot.

It’s also the case that a great many women with no health insurance are effectively cut off from anything approximating pre-natal care, and when they do realize they are pregnant they have no idea how far along they are, and they have no way to find out. Another argument for health care reform.

It’s also the case that people may disagree about what’s “elective” and what isn’t. For example, I understand that rape victims and very young teens often are in denial about being pregnant until they are so far along they can’t hide it any more, and IMO allowances should be made for that. And it would be good to clarify that when a fetus is so physically compromised that it will not survive outside the womb even if born full-term, it’s merciful to allow the woman to abort.

But I am not satisfied with this response to Saletan from Pema Levy:

For me, the answer is yes, late-term abortions should be legal, even if medical complications are out of the picture. If a woman decides to have a late-term abortion, which often means traveling across state lines and spending a lot of money to have it done or submitting to a complicated procedure at a shady clinic like Dr. Gosnell’s patients did, then they are obviously making a very serious decision because they feel having an abortion is what they need. Maybe their decision is financial, maybe their marriage has become abusive, and maybe she’s a bad, fickle person. But being pro-choice means having the strong belief that women’s bodies should not be used in any way against their will.

Absolutely, women should exercise free will, but is there a non-medical reason for a third-trimester abortion that wasn’t also present during the first and second trimesters? If so, then we probably are talking about a short-term crisis, not a chronic living condition, and perhaps other kinds of assistance are warranted.

And if a woman is so ambivalent she can’t decide whether to go through with the pregnancy or not, then it has to be made clear that there comes a time that nature will make your decision for you. Frankly, by the time you get to 24 weeks’ gestation, it’s way too late to “get out of” the pregnancy. By then most of the hormonal and physical challenges of pregnancy have arrived.

It’s also the case that a later-term abortion is more dangerous than earlier ones for a woman. That’s another reason women should understand that abortions can’t be postponed until whenever.

We are, of course, talking about a very small percentage of the abortions in the U.S. According to Alan Guttmacher, only 1.5 percent of abortions are performed after 21 weeks, which do not all qualify as post-viability abortions, Saletan’s fudging of this issue to the contrary. And those are abortions performed for all reasons, including saving the mothers’ lives or removal of a fetus that has already died from natural causes.

Since they are illegal in nearly every state, I question whether any post-viability elective abortions are being performed in the U.S., except in an unlawful operation such as Kermit Gosnell’s. To my mind, those of us who support reproductive rights aren’t giving anything away by advocating a 24-week limit. This is merely clarifying reality.

For the record, according to the Journal of Perinatology,

The gestational age and birth weight below which infants are too immature to survive, and thus provision of intensive care is unreasonable, appears to be at <23 weeks and <500 g, respectively.

A handful, pretty much literally, of premature babies claimed to have been at less than 23 weeks gestation have survived, but there is skepticism in the medical community that the gestational age was accurate. So, at the moment, the viability “wall” remains after 23 weeks gestation as far as medical science is concerned.

People can quibble over where the gestational line should be drawn. If all of the barriers and roadblocks to getting early-term abortions disappeared tomorrow, and if all American women had access to medical care, and if it is understood that doctors will be allowed some discretion about what is considered “elective,” my preference would be to set the elective limit at some point between 15 and 20 weeks, frankly, although I won’t argue with 24 weeks.

But, to me, once the fetus can survive outside the womb, then the actual birth is something of a technicality, and the woman’s “free will” can no longer be absolute. And however onerous carrying the pregnancy to term might be, surely it was just as onerous before 24 weeks’ gestation.

So, to the simple question, “Is it OK to abort a viable fetus?” I do wish more reproduction rights advocates could learn to just say no, and be clear about it, and stop fudging. There may be conditions attached to that “no,” but it’s still no.

Related: Proof that Fetus People are lying when they claim they care about the well-being of women.

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