Mojo - June 2011

Appeals Court Upholds Health Care Reform Law

| Wed Jun. 29, 2011 3:07 PM EDT

The Obama administration has chalked up a win in the first appellate court decision on the Affordable Care Act. On Wednesday, a three-judge panel of the US Court of Appeals for the Sixth Circuit ruled that the portion of the 2010 health reform law that requires Americans to obtain health insurance or pay a penalty is constitutional.

The decision came in response to an appeal by the conservative Thomas More Law Center in Michigan. A judge in the federal district court in Detroit ruled last October that the "mandate" portion of the law was, in fact, constitutional, but Thomas More appealed to the 6th Circuit.

There are still two decisions pending from other appeals courts regarding portions of the health care law: the 4th Circuit in Richmond and the 11th Circuit in Atlanta. It's expected that at least one of the suits will end up in front of the Supreme Court. The New York Times explains:

Lawyers on both sides of the case widely expect the Supreme Court to take one or more of the cases, perhaps as soon as its coming term, which starts in October. The speed of the Sixth Circuit ruling could help ensure that timing.
The Sixth Circuit opinion was the first on the merits that has not broken down strictly along seemingly partisan lines. Two of the judges on the panel were appointed by Republican presidents and one was appointed by a Democrat. At the lower District Court level, five judges have divided on the question, with three Democratic appointees ruling in favor of the law and two Republican appointees rejecting it.

The law might not fare as well in the other appeals courts, both of which are expected to rule soon. But the Department of Justice issued a statement cheering the news. "Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed," said Tracy Schmaler, deputy director of the DOJ's Office of Public Affairs. "We believe these challenges to health reform will also fail."

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Planned Parenthood Under Attack at the State Level

| Wed Jun. 29, 2011 1:55 PM EDT

By Friday, Kansas could be the first state to effectively make legal abortion inaccessible within its borders. Drawing less attention, though, is the fact that the state is also on a mission to put Planned Parenthood out of business there entirely, after also passing a new law that cuts off public funding to the group's reproductive health clinics.

So far, none of the three clinics in the state that provide abortions have been granted a license to continue operating, as the Kansas City Star reports. Our own Maddie Oatman reported Tuesday that one of the clinics has filed suit to stop the new rules. But among the litany of anti-abortion bills passed in Kansas this year was also one that cuts off federal Title X family planning funding for Planned Parenthood, a move that could limit services at the organization's two health centers in the state. (Title X is a federal program, but it provides grants to state and regional health departments which in turn administer them to service providers.) The two offices—in Wichita and Hayes—don't provide abortions at all. They provide health screenings, contraception, and educational resources, and in most years, between 40 and 60 percent of their funding comes through Title X, says Peter Brownlie, the president of Planned Parenthood of Kansas and Mid-Missouri.

On Monday, the group filed suit in the federal district court in Kansas City to prevent the enforcement of the defunding legislation. The two clinics see 5,600 patients per year, and the denial of Title X funds would most likely mean that they have to do away with the sliding scale fee that they currently charged based on a patient's income. That has allowed them to provide their services at little or no charge for people at poverty level or below, says Brownlie.

"We're going to continue to make every effort to keep them open," he told Mother Jones last week. Meanwhile, the group is also fighting the new abortion clinic regulations that threaten to close their other office in Overland Park, Kansas, where they do provide abortion services.

The Kansas Planned Parenthood situation is a little bit different than Indiana's, where the state legislature voted in April to block Medicaid funds from being used at the clinics. The feds declared the move illegal because it discriminates against specific health care providers, and last Friday a US District Court judge granted an injunction to stop the law from taking effect in the state. (The Indiana attorney general has filed an appeal, but as of Saturday, Planned Parenthood is again accepting Medicaid patients.)

Other states have followed the lead of Indiana and Kansas. North Carolina passed a bill earlier this month blocking funding to the group over the governor's veto, and Texas is on track to sign a similar measure into law this week. While anti-abortion lawmakers may have lost their battle to end funding for PP at the federal level earlier this year, they've been able to chalk up several wins at the state level.

Shot Across the Bow at US Flotilla Passengers

| Wed Jun. 29, 2011 1:39 PM EDT

In a last-ditch effort to deter American participation in the Gaza flotilla redux—the Audacity of Hope containing 36 American passengers is set to embark from Greece any day now—the US government sent out a warning about the possible repercussions of jumping onboard. On Friday, the State Department declared "that delivering or attempting or conspiring to deliver material support or other resources to or for the benefit of a designated foreign terrorist organization, such as Hamas, could violate US civil and criminal statutes and could lead to fines and incarceration." But critics say there's no evidence that any of the passengers intend to deliver anything to Hamas, and that the Obama administration is overstepping its boundaries.

The warning, according to American University law professor Stephen Vladeck, constitutes an unmistakable threat of potential prosecution under the so-called "material support" law—18 U.S.C. 2339B for you legal buffs out there. First passed in 1996, it has been perhaps the Justice Department's favorite tool for prosecuting terrorism cases since 9/11. The statute prohibits the knowing provision of "material support or resources to a foreign terrorist organization." In 2001, the Patriot Act expanded the definition of "material support or resources" to include "expert advice or assistance."

Shocked, Shocked: GOP Hypocrisy on Certainty

| Wed Jun. 29, 2011 11:24 AM EDT

The First Read gang at NBC News' political unit made a good point about those say-anything Republicans:

*** Remember the GOP talking points on "certainty?" However, over the past year, John Boehner and Republicans have railed against the Obama administration’s policies (on health care, on the financial industry), arguing they create uncertainty for the business community. “We're calling for an end to the threat of tax hikes -- and a fundamental reform of the tax code -- to provide certainty to those in our country who create jobs," Boehner said in May. “We need to move forward on those policies that will give our small businesses the certainty to create those jobs,” he added earlier this month. “We need to stop the regulations to provide more certainty for America's job creators,” he noted two week ago. But the issue of "certainty" is not is not being brought up now by Republicans when it comes to the debt ceiling. If anything, despite calls from the Wall Street and business communities to CREATE certainty by taking this debt ceiling issue off the table sooner rather than later, the GOP is now doubling-down on creating a LACK of certainty for now as a way to gain leverage in the talks with the White House.

Gotcha.

The Media's Michele Bachmann "Gaffe" Problem

| Wed Jun. 29, 2011 9:59 AM EDT

Over at the Plum Line, Jonathan Bernstein takes the media to task for spending so much time focusing on Michele Bachmann's embarrassing slip-up on Monday, in which she confused American icon and Iowa native John Wayne with serial-killing clown and Iowa native John Wayne Gacy. He's also irked that ABC's George Stephanopolous wasted precious time grilling Bachmann about her assertion that the Founding Fathers worked to end slavery:

So what counts as a "gaffe" in the eyes of the press corps?

We're getting an excellent lesson in it this week, with the formal rollout of the Michele Bachmann presidential candidacy. Bachmann is taking heat for what seems to me to be a relatively minor mistake in Americana and for a misstatement of early American history.

You know what's not getting nearly the same treatment? Bachmann has been going around for some time now, including on her Sunday TV appearances, spouting absolute nonsense about the debt ceiling. She's claiming that somehow it would be no big deal if the limit wasn't raised.

That's a fair point (and, ahem, here's our coverage of the debt ceiling fight). But I'd expand that much, much further to cover a whole range of other issues that inevitably get buried once the campaign kicks into gear. The relevant point, after all, really isn't that Bachmann says crazy things; it's that she believes those things, and that those ideas are a fundamental part of her political ideology. For instance, as Bachmann noted in her kickoff speech, she launched her political career by opposing Minnesota's state curriculum standards. What was the nature of her opposition? She and her allies argued that the standards were part of a United Nations plot to acclimate children to a pantheistic, pro-abortion, Soviet-style, one-world state—and George H.W. Bush was in on it! Given the current heated debate over education reform, that seems like a pretty ripe topic to bring up in an interview. Certainly more so than the debate over slavery, which has been dormant for a while.

Bachmann's detractors, particularly in Minnesota, tend to believe that her rise has been aided by the failure of mainstream news organizations to look critically at her political views and associations. Her supporters, meanwhile, suggest that she's a victim of the sloppy tendency to focus on trivial verbal slip-ups rather than substantive issues. Two weeks into her presidential campaign, at least one thing is clear: They're both right.

Does Rick Perry Want to Make Texas a No-Fly Zone?

| Wed Jun. 29, 2011 6:00 AM EDT

Texas lawmakers are expected to vote on a bill Wednesday that would effectively outlaw many routine airport searches by the Transportation Security Administration. If it passes, a TSA screener who touches the "anus, sexual organs, or breasts" of a passenger without probable cause could face jail time—a prospect that has the Obama administration threatening to sue the Lone Star state and even cancel flights. A rattled state Senate seemed to have dropped the bill before Gov. Rick Perry put it back on the agenda again last week, perhaps seeing a high-stakes fight with the feds as fuel for a presidential bid. But why stop at that? Some of the bill's most enthusiastic backers view it as a key first step towards an even bigger goal: The establishment of an independent Republic of Texas.

"If the federal government follows up on its threat and suspends air travel, I honestly think we are going to gain a lot of members in a big hurry," says Dave Mundy, media director for the Texas Nationalist Movement (TNM), a pro-secession group that claims an active membership of 10,000. "An air embargo, which is what they are talking about, would actually be an act of war. I mean, that's what happens when you declare war on somebody. You establish a no-fly zone."

Yesterday, TNM president Daniel Miller wrote on the group's website that "Texas is not Iraq." ("Will Washington choose to engage the Texan 149th Fighter Wing and their F-16 air superiority fighters?") Miller also pointed to this "brilliant" observation from an anonymous blogger: "The state of Texas has more military capability than the United Kingdom, and so, unless Washington plans to nuke them, they might want to consider how well they might do engaging Texan F-16s while they allege the right to violate United States Code and the Constitution."

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We're Still at War: Photo of the Day for June 29, 2011

Wed Jun. 29, 2011 6:00 AM EDT

Soldiers from Company C, 1st Battalion, 506th Infantry Regiment, 4th Brigade Combat Team, 101st Airborne Division, Task Force Currahee, pull security from the top of a mountain in Paktika province during operation Surak Basta III on June 23. The operation was to infiltrate near the Afghanistan-Pakistan border in order to stop enemy fighters from entering into Afghanistan. Photo via US Army.

Kansas Sued Over Abortion Clinic Guidelines

| Tue Jun. 28, 2011 8:49 PM EDT

Two weeks ago, the Kansas Department of Health and Environment issued a new set of stringent guidelines for abortion clinics. Under the new requirements, the three remaining clinics in the state would have to make enormous structural changes to their buildings and obtain new certifications in just two weeks or face possible closure. These types of laws are known as Targeted Regulation of Abortion Providers (TRAP) laws, and critics say they're intended to make it almost impossible for clinics to operate.

But despite the new rules, abortion rights activists aren't giving up: On Tuesday, the Center for Reproductive Rights (CRR) filed a federal lawsuit on behalf of one of the remaining Kansas clinics, the Center for Women's Health, which is run by a father/daughter duo who practice in Overland Park.

A Congressional Bailout for a Pharma Firm?

| Tue Jun. 28, 2011 7:45 PM EDT

The fate of the global economy hangs in the balance as Congress continues to haggle over tax cuts, revenue increases, and raising the debt ceiling. But at least they're taking care of big pharma.

On Thursday, the House passed a John Conyers (D-Mich.)-authored amendment to the massive bipartisan overhaul of the nation's patent system. Technically, the measure pushes back when the clock starts ticking on patent expirations, making it easier for companies to secure the rights to the products they create. But in practice, it seems to have allowed one drug company to maintain its patent on a single drug.

Roll Call reports that in 2000, the Medicines Co. (MDCO) missed the deadline on extending its patent on a blood-thinning drug called AngioMax—by one day. That extension would've kept generic versions of the drug off the market until 2014; missing the deadline meant that generics could flood the market by as early as 2010, costing MDCO anywhere between $500 million to $1 billion in profits.

MDCO sued the US Patent Office and WilmerHale, the firm that allegedly bungled the extension application. The stakes for WilmerHale are considerable: if a generic hits the shelves before June 15, 2015, the firm has to cough up $214 million to MDCO, according to a settlement reached earlier this year.

The two firms spent millions lobbying Congress to pass legislation overturning the rejection. And it paid off. Speaking in front of the House Judiciary Committee, Conyers, the committee's senior Democrat, said the amendment would make a "technical—but important—revision" to federal patent law. "By eliminating confusion regarding the deadline… [it] provides the certainty necessary to encourage costly investments in lifesaving medical research."

Skeptics see the amendment as an earmarked bailout for MDCO and WilmerHale. And there's a case to be made that the amendment violates the House's anti-earmark stance:

Although the amendment does not obligate taxpayer funds be spent on a specific project, by virtue of its narrow scope it falls within the broad definition of an earmark and is a classic example of Congress taking pains to assist powerful interests, Taxpayers for Common Sense Vice President Steve Ellis said.

The language "really has no business in this bill," said Ellis, who called the amendment "almost a private law that helps one or two companies."

In the 2010 cycle, health professionals and pharmaceutical companies clock in as Conyers' sixth and ninth-highest campaign contributors. Lawyers and law firms? #1. But Conyers isn't the only lawmaker who seems to be performing interest group-due diligence: from 2009 to 2010, lobbying, public relations, and pharmaceutical groups (combined) gave 60% more to House members that voted for his amendment than to those who voted against it, according to the folks at MapLight.org.

Anti-earmark pledge or no, it's not surprising that Conyers et. al, are taking care of those who take care of them. But bending over backwards to bail out specific corporate entities smacks of some pretty crafty lobbying by MDCO and WilmerHale. It also suggests that, with 2012 looming in the not-so-distant future, some members of Congress are in no position to risk upsetting their most generous donors.

Pawlenty Friend: He Told Me He's Pro-Choice

| Tue Jun. 28, 2011 5:58 PM EDT

Is Republican presidential candidate Tim Pawlenty secretly pro-choice? That's what a long-time acquaintance maintained today in an MinnPost op-ed. Shawn Lawrence Otto, a Hollywood filmmaker, writes that in the late 1990s he was considering a run for public office and Pawlenty, an occasional golfing buddy, sat him down to offer some friendly advice—and that's when the truth spilled out:

[Pawlenty's] first question was, "What's your position on choice?" I hadn't ever been asked the question quite so pointedly. "You've got to take a stand on that first," he said. "Well," I said, "OK. I don't like abortion; I think it's a really tough personal decision, but not something the government should be getting into one way or the other, so I guess I'm pro-choice."

He looked at me over his lunch and said, "Well personally, so am I, but here's the thing. You've got to find a way to get your mind around the language of saying 'pro-life.' It's in how you phrase it."

That's a sharp contrast to Pawlenty's current rhetoric. Pawlenty has taken a strong stance on the campaign trail against abortion rights, raising money for pro-life groups and suggesting, through a spokesman, that doctors who perform abortions ought to face criminal penalties. And when he was governor of Minnesota, Pawlenty pushed for and signed a controversial 2003 law mandating a 24-hour waiting period for women seeking abortions. Last April, he issued a proclamation declaring a statewide "Abortion Recovery Month," to raise "awareness of the aftermath of abortion experienced by individuals and families."

But for Pawlenty, who is lagging in the polls in Iowa and struggling to shed a reputation as dull, the accusation that he's flip-flopped on abortion—or been covertly pro-choice all along—could place another road block on his already difficult path to the GOP nomination. It would also, crucially, undermine one of the key distinctions between Pawlenty and front-runner Mitt Romney, who supported abortion rights during his 2002 Massachusetts gubernatorial campaign and has struggled to convince socially conservative voters he's one of them.

Romney's about-face on abortion (which paralleled reversals on gay rights and gun rights) has long caused social conservatives to be suspicious of his commitment to their causes, and in recent weeks he has received a poke or two from the right for not being a reliable abortion foe. (New-to-the-field contender Rep. Michele Bachmann, for one, has questioned Romney's anti-abortion credentials.)

Will Otto's article lead to similar problems for Pawlenty? Or will this be just a he-said/he-said matter that T-Paw can essentially ignore? Mother Jones contacted Pawlenty's campaign to ask for a response to Otto's piece. So far, there's no reaction.