2012 - %3, March

Catholic Bishops Lose a Big Battle Over Contraception

| Mon Mar. 26, 2012 10:16 AM PDT
Yes, we know this isn't how Catholic bishops actually dress.

For the past several months, the US Conference of Catholic Bishops (USCCB) has been waging war on the Obama administration over reproductive health care, declaring it no less than a battle over religious freedom. But on Friday, a federal judge ruled against the bishops in a fight over whether the group could impose its views on contraception and abortion through its control of taxpayer dollars.

For the past six months, the bishops have complained very publicly that the administration is anti-Catholic and biased against religious groups because it refused to renew a contract with the group to provide services to victims of human trafficking. The bishops had been administering virtually all the federal money allocated for such services, about $3 million a year, doling it out to subcontractors who served victims all over the country. The USCCB had prohibited the contractors from using the federal funds to pay for staff time to counsel victims on contraception or abortion, or to refer them for such services. (Federal money can't be used to pay for abortions except in the most extreme instances, but it can pay for contraception.)

In 2009, the ACLU sued the Department of Health and Human Services, arguing that such rules violated constitutional prohibitions on mixing church and state. Last fall, while the case was still pending, the Obama administration decided not to renew the bishops' contract, largely because the bishops refused to provide those key reproductive health services that are frequently needed by victims of trafficking. The decision set off a firestorm in Congress, where House Republicans accused the administration of bid-rigging and violating the bishops' religious freedom during a marathon oversight hearing in December.

But on Friday, a federal judge in Massachusetts essentially validated the Obama administration's position, ruling in favor of the ACLU in the lawsuit over the contract. Even though the bishops no longer have the contract, they had joined with the ACLU in asking the judge to rule in the case to settle the constitutional issues. US District Judge Richard Stearns explained why the bishops were in the wrong. He wrote:

To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others…This case is about the limits of the government's ability to delegate to a religious institution the right to use taxpayer money to impose its beliefs on others (who may or may not share them).

Stearns also cited an earlier Supreme Court ruling that found that the framers "did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions." The judge's ruling is potentially a big one: It calls into question the entire basis of the federal faith-based contracting initiative, implemented by George W. Bush, which gave tremendous power to groups like USCCB over taxpayer dollars. Stearns found, in fact, that it was USCCB that was making the decisions about how the federal anti-trafficking law should be administered—a job that properly rests with the government, not the church.

USCCB was clearly unhappy with the ruling. Sister Mary Ann Walsh, the USCCB's spokeswoman, said in an email, "The USCCB is disappointed by the decision and is likely to appeal. The decision seems to ignore the right of free expression of one's religious beliefs."

ACLU Senior Staff Attorney Brigitte Amiri said in a statement after Friday's ruling:

"The court is right to insist that organizations receiving government funding cannot use their religion as an excuse to discriminate and withhold crucial services from victims of human trafficking. The court's decision ensures that people who have been forced into horrific circumstances will have access to all necessary services—including reproductive health care—to rebuild their lives."

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Sanford PD Has Trayvon Killer's Gun

| Mon Mar. 26, 2012 10:10 AM PDT

George Zimmerman is free to walk the streets of Sanford, Florida. But the gun he used to shoot and kill 17-year-old Trayvon Martin is in police hands, Mother Jones has confirmed.

A spokeswoman for the city of Sanford says that the Sanford Police Department took into evidence the gun that Zimmerman, a neighborhood watch captain, fired at Martin on February 26. That was the day that Zimmerman had called 911 to report "a real suspicious guy" clad in a hoodie, who turned out to be a kid walking home from a nearby 7-Eleven with a bag of Skittles and a can of iced tea. Zimmerman's pursuit of Martin led to a physical altercation between the two, wherein Zimmerman shot and killed Martin. Zimmerman's lawyers claim it was an act of self-defense, despite mounting evidence to the contrary.

One month has passed since Martin's killing, which has since ignited a national controversy. To mark the sober anniversary, the Brady Center To Prevent Gun Violence, a leading gun control group, blasted out a press release: "GEORGE ZIMMERMAN STILL HAS HIS GUN AND HIS LICENSE TO CARRY AND USE IT." That's half-right. Zimmerman no longer possesses the gun he used to kill Martin. But he still has a permit to carry a concealed weapon—and, thanks to Florida's gun laws, he still has the right to buy a new handgun instantly and travel to 35 other states while packing heat.

Quote of the Day: Obamaville

| Mon Mar. 26, 2012 9:50 AM PDT

From Paul Waldman, on Rick Santorum's latest video apocalypse:

Holy crap! Was that a shot of Barack Obama forcing a little girl to bite the head off her beloved guinea pig? Maybe not, but almost. Apparently, it will take Obama only two years to turn America into some combination of "The Day After" and "Saw."

Paul isn't exaggerating. Santorum's ad really does open with a Saw-like shot of a flock of crows shrieking as they fly away from an abandoned, windswept little town. The Santorum campaign is really getting desperate.

We're Still at War: Photo of the Day for March 26, 2012

Mon Mar. 26, 2012 9:10 AM PDT

Becky Welch, widow of 1st Lt. Robert F. Welch, takes a moment to remember at the Memorial Dedication and Fallen Hero Ceremony, on March 9, 2012. 1st Lt. Welch died last year from wounds suffered in a rocket attack at Forward Operating Base Salerno, Afghanistan. US Army photo by Staff Sgt. John Zumer, 3/1 BCT Public Affairs.

Without Apple, the Tech Sector is Kind of Sucking

| Mon Mar. 26, 2012 9:05 AM PDT

Via Joe Weisenthal, this chart from BarCap shows the growth of the tech sector with and without Apple. Take Apple's stock out of the equation, and instead of growing 8% over the past year, the tech sector has shrunk about 3%. It's true that you can see an effect like this on any kind of aggregate index if you remove the top performer, but given the size of the tech sector this is a pretty stunning example of the effect.

Torturing the Law to Argue that Obamacare is Unconstitutional

| Mon Mar. 26, 2012 8:13 AM PDT

Paul Krugman comments on the Obamacare court case being argued today:

We know, or I think we know, that a single-payer system — in which the government collects taxes, and uses the revenue to provide health insurance — would be constitutional. I mean, I don’t think the court is about to strike down Medicare.

Well, ObamaRomneycare is basically a somewhat klutzy way of simulating single-payer. Instead of collecting enough revenue to pay for universal health insurance, it requires that those who can afford it buy the insurance directly, then provides aid — financed with taxes — to those who can’t. The end result is much the same as if the government collected taxes from those under the mandate and bought insurance for them....It is in no sense more interventionist, more tyrannical, than Medicare; it’s just a different way of achieving the same thing.

Agreed. This whole case has a serious air of angels-dancing-on-the-head-of-a-pin. The individual mandate is enforced by a tax penalty, and if it were called a tax penalty it would be OK. But since it's called a fine it's unconstitutional! Congress can tax everyone and then provide them with health insurance — outsourced to a private company if it wants to. But it can't require everyone to simply buy the exact same health insurance directly for the exact same price! Raich may seem like a precedent that binds conservatives to uphold Obamacare, but Raich was an as-applied challenge. The current case is a facial challenge!

And on and on. Maybe these distinctions really matter. But to an awful lot of people, they sure sound an awful lot like mere excuses to reach a conclusion they want to reach. That's because, broadly speaking, it's nearly impossible to argue that Obamacare is even close to pushing the envelope on Congress's power to regulate interstate commerce. It's aimed at a particular sector (healthcare) and uses a particular method (the mandate) to accomplish its goals, but lots of acts of Congress use slightly new and different ways of accomplishing legitimate goals. The methods of 1787 just don't map precisely onto 2012.

We'll see. If the conservative justices are simply bound and determined to make their mark and overturn Obamacare, they will. But if they do, they're going to have to torture the law pretty hard to get there.

More here from Adam Serwer on possible outcomes.

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Gender and Patents: Are Women Slackers?

| Mon Mar. 26, 2012 3:00 AM PDT

Why don't women hold more patents? The National Bureau of Economic Research examined the question in a new working paper, and on Thursday, NPR's Marketplace featured a segment with Freakonomics author Stephen Dubner about the issue.

The radio segment was bothersome. Dubner started by blaming women for there being "room for improvement in the innovation field," then proceeded to argue that the disparity might be because men are bigger "risk-takers," and concluded by suggesting that segregating the work force is the best answer. The segment had an overarching tone of, "Geez, womens, would you get your act together? But do it somewhere else, the menfolk are busy."

That's not to say the data in the NBER paper isn't interesting. The Bureau found that overall, women hold 7.5 percent of all patents, and only 5.5 percent of commercial patents. Men hold the rest. Many people assume that this is because women are less likely to hold degrees in things like engineering or hard sciences, but that only accounts for 7 percent of the massive gap. And simply increasing women's representation in those fields "would have little effect absent other changes."

More important, the authors found, is increasing the number of women working in electrical and mechanical engineering, the "most patent-intensive fields," and increasing the number of women working in jobs that focus on development and design—a disparity that accounts for 40 percent of the gap in commercial patents. They also found that the fact that women working in the kind of jobs where they might develop ideas to patent tend to be younger than their male counterparts accounts for 29 percent of the gap. 

But here's what both Dubner and the NBER paper missed: women are actually closing the patent gap quite quickly already. The National Women's Business Council released a report earlier this month that found that women have doubled their share of patents in the last 22 years. Women hold 18 percent of the patents filed since 1990. And in 2010, the number of patents granted to women increased by 35 percent. So I'd say women are actually doing pretty well these days.

Review: The Magnetic Fields' "Love at the Bottom of the Sea"

| Mon Mar. 26, 2012 3:00 AM PDT

The Magnetic Fields
Love at the Bottom of the Sea
Merge Records

Since 1991, when The Magnetic Fields released the first of their 11 albums to date, the iconic pop group has created a singular genre of ultra-sincere yet superbly tongue-in-cheek love songs. Nothing exemplifies this better than three-volume concept album 69 Love Songs, an ode to cliché that ranges from the heartbreaking ("All My Little Words") to the supremely silly ("Let's Pretend We're Bunny Rabbits") all in, you guessed it, 69 tracks. Their music has always been firmly rooted in ideas of nostalgia—doing drugs, going to bad parties, cruising aimlessly in cars, and, most of all, reflecting on love or love lost between girls and girls, girls and boys, or boys and boys, if never their grown-up counterparts.

What the Supreme Court Could Do About Obamacare, Explained

| Mon Mar. 26, 2012 12:08 AM PDT

The Supreme Court will hear oral arguments concerning the constitutionality of Obamacare—a.k.a. the Affordable Care Act, or ACA—beginning Monday. (Last week, Obama reelection campaign manager Jim Messina sent out an email to supporters noting that he and the campaign are proud of "Obamacare," thus claiming the term from their foes.) What will the justices decide? Here are a few of the probable scenarios:

The Supreme Court punts. The first day of oral arguments is devoted to whether or not the Tax Anti-Injunction Act, a law that bars legal challenges to taxes before anyone actually pays them, applies to the individual mandate—the Obamacare provision that levies a tax on individuals who don't purchase health insurance and are not otherwise covered by an employer or government program. By taking this road and embracing an argument first laid out by Judge Brett Kavanaugh, a George W. Bush appointee, the Supreme Court could avoid dealing with the constitutionality of the individual mandate until after the 2012 election. Doing this could make the mandate ultimately more likely to be upheld, because the high court would be acknowledging that the mandate is a tax and falls under the federal government's constitutional authority to levy taxes. 

"This might end with a whimper rather than a bang," says Adam Winkler, a law professor at the University of California–Los Angeles. "If the court rules that the Tax Anti-Injunction Act applies, then all of the hullabaloo will be for naught."

The Supreme Court tosses out the whole law. Conservative opponents of the ACA argue that the individual mandate—only one provision of the law, albeit a central one—is an unconstitutional assertion of federal power, and they insist it ought to be struck down. But they also want to see the whole law ruled unconstitutional. Aside from the individual mandate, conservatives are also challenging the constitutionality of expanding Medicaid to 16 million more Americans. By the White House's numbers, that's about half of the Americans who will ultimately get coverage under the ACA. In his brief, former Solicitor General Paul Clement, who will be arguing for the ACA's challengers before the court, suggested that if either the individual mandate or the Medicaid expansion are ruled unconstitutional then the entire law should go. As TPM's Brian Beutler points out, it doesn't help that Congress didn't include in the original bill a "severability" clause (a traditional legislative provision that essentially says that if a portion of a law is struck down, the rest of the legislation still stands). This makes it easier for opponents to argue the entire law should be scrapped.

If the court doesn't rule on the individual mandate, however, that still leaves the question of whether the ACA's Medicaid expansion is constitutional. But experts speculate the court is unlikely to leave the mandate alone but overturn the health care law based on the Medicaid expansion.

The Supreme Court tosses the mandate and the ban on discrimination on the basis of preexisting conditions. The ban on insurance companies refusing to cover individuals on the basis of preexisting conditions is arguably the most popular part of the Affordable Care Act. Nevertheless, the Obama administration has argued that if the high court should choose to strike down the individual mandate, the whole bill wouldn't have to go. But, the government also notes, the prohibition on insurance companies discriminating on the basis of preexisting conditions would have to be dumped, because without the mandate the law's other provisions would "create a spiral of higher costs," with individuals getting sick and enrolling at the last minute. "The federal government's position is that [if] the mandate goes, other important things go too," says Doug Kendall of the Constitutional Accountability Center. 

The Supreme Court strikes down the individual mandate and keeps everything else. Neither the conservative challengers to the law nor the Obama administration would be particularly happy with this outcome. It would leave the current law mostly intact. But it would also, administration officials fear, bankrupt the insurance companies still forced to provide coverage without the necessary financial resources to do so. (Without a mandate, the insurance industry will have fewer customers and less resources to handle an influx of those people with preexisting conditions.) However, during the five and a half hours of oral arguments, the high court will also be hearing from H. Bartow Farr III, who will be arguing for the 11th Circuit Court of Appeals' position that the court doesn't have to strike down anything other than the individual mandate, if the court finds it unconstitutional.

The Supreme Court upholds the entire law. In the post-Bush v. Gore era, where the justices' opinions often seem to reflect little more than the ideological positions of the parties that appoint them, it seems difficult to imagine that the Affordable Care Act fully survives. But it could happen. George Washington University Law School Professor Orin Kerr, a former clerk for Justice Anthony Kennedy, is pretty bullish on the ACA's chances. Last August, he predicted that "the mandate will be upheld by a vote of anywhere from 6-3 to 8-1." 

Something crazy happens. The above scenarios seem like the most likely outcomes. But this is a historic case, and it's possible that the court could fail to find consensus one way or the other, leading to the justices splitting in a way that no position ends up with a clear majority. It's unlikely, but anything could happen.

Your Favorite Podcasts Revealed!

| Sun Mar. 25, 2012 9:26 AM PDT

Yesterday I asked for podcast recommendations. I got loads of 'em! So now, as a public service, I figure I should provide you with a rough Top Ten list culled from comments and emails. The full comment section has a lot more than just the podcasts below, and you should take a look if you're in the market for something a little different, but here were the favorites:

  1. Radiolab won by a mile. The entire stable of NPR shows also got a lot of votes, including Planet Money, Car Talk, This American Life, Foreign Dispatch, and others.
  2. In Our Time was the only show that came close to Radiolab. The rest of the BBC radio lineup got lots of recommendations too.
  3. The Bugle, a news sendup from John Oliver and Andy Zaltzman.
  4. Philosophy Bites, "podcasts of top philosophers interviewed on bite-sized topics..."
  5. "The Civil War and Reconstruction Era, 1845-1877," a Yale University course by David Blight. The Open Yale series in general got a lot of strong recommendations.
  6. History of Rome, a massive, ongoing series of podcasts "tracing the history of the Roman Empire, beginning with Aeneas's arrival in Italy and ending (someday) with the exile of Romulus Augustulus, last Emperor of the Western Roman Empire." So far it's up to episode #172, which covers Attila the Hun's invasion in 451 AD, so it must be getting close to wrapping up.
  7. WTF, comedy with an attitude from Marc Maron.
  8. The B.S. Report, sports talk from ESPN's Bill Simmons.
  9. The New Yorker's stable of podcasts, incuding Comment, Political Scene, Fiction, and Out Loud. 
  10. Slate's stable of podcasts, including Gabfest, Culture Gabfest, and Double X Gabfest.

On the technology side, there were also several recommendations for Downcast as an alternative to iTunes. And, of course, lots of other recommendations that were a little farther off the beaten path than the ones above. Click the link for more. Enjoy.