The Supreme Court And Health Law Politics

Every week, reporter Jessica Marcy selects interesting reading from around the Web.

New Yorker: Birthright
There are eighty-two Planned Parenthood affiliates nationwide, operating nearly eight hundred clinics. Planned Parenthood says that one in five women in the U.S. has been treated at a Planned Parenthood clinic. Critics of Planned Parenthood, who are engaged in a sustained attack on the organization, say that most of those women are going to the clinics to have abortions, paid for, in violation of the Hyde Amendment, with taxpayer money. The fury over Planned Parenthood is two political passions—opposition to abortion and opposition to government programs for the poor—acting as one. So far, it has nearly led to the shutdown of the federal government, required Republican Party nominees to swear their fealty to the pro-life lobby, tied up legislatures and courts in more than half a dozen states, launched a congressional investigation, and helped cripple the Democratic Party (Jill Lepore, 11/14).

American Medical News: Obama Targets Prices Of Shortage Drugs
President Obama on Oct. 31 issued an executive order aimed at reducing drug shortages that asks the Dept. of Justice to examine price increases for shortage drugs to see if such increases violate any law. In addition, the order directs the Food and Drug Administration to require drug manufacturers to report drug discontinuances in advance. … The number of drugs in shortage tripled between 2005 and 2010 to reach 178. The FDA prevented at least 99 drug shortages in 2011 by encouraging other pharmaceutical companies to take over or boost their production of shortage drugs, helping manufacturers to solve contamination or quality issues, and extending the drugs’ expiration dates (Doug Trapp, 11/14).

The Daily Beast: Supreme Court’s Obamacare Ruling Will Politicize Judicial Process
Whatever it decides on the merits, the Court will do terrible damage to its own standing as an institution. The politicizing effect will resemble Bush v. Gore. … There is a way out—provided by one of the cases the court has set down for review. In Liberty University v. Geithner, the Fourth Circuit held that federal courts lacked jurisdiction to hear the key challenge to the health-care statute until 2015. It held that the Anti-Injunction Act prohibited plaintiffs from going to court until they actually receive a bill from the Internal Revenue Service. This won’t happen until the individual mandate goes into effect in 2015 (Bruce Ackerman, 11/15).

The Atlantic: Medicaid Rule, Not Individual Mandate, May Undo Health Care Law
The complexity of the issues, the brilliance of the advocates on both sides, and not least the stunning length of the oral argument granted (five-and-a-half hours when most cases get a total of one hour) makes the upcoming court drama the equivalent of Wagner’s Ring Cycle for those of us whose living involves Constitutional law. Oh, yeah, the issues are important for ordinary people, too. … The states argue that the federal government has simply made Medicaid too attractive, and at the same time made the new mandates too large–and that in some way that exceeds the Congress’ power (Garrett Epps, 11/14).

Mother Jones: How Pot Could Save Obamacare
In both the DC Circuit and the 6th Circuit, the two appellate courts that have upheld the health care law, judges relied heavily on a 2005 Supreme Court ruling in Gonzalez v. Raich—a medical marijuana case. That case involved a California woman named Diane Monson who’d been growing marijuana in her backyard for medicinal reasons. … The DEA swooped in one day and destroyed her plants, even though medical marijuana use in California is legal under state law. The high court found that the Commerce Clause gave Congress wide authority to regulate interstate commerce, even when that commerce takes place mostly in someone’s backyard (Stephanie Mencimer, 11/15).

National Review: Undoing Obamacare
At the very least, a decision next year would put Obamacare front and center in the heart of election season when the Democrats would like nothing better than to pretend that Obama’s first two years did not exist. … But the core case against Obamacare must be a sustained political case made on policy grounds, and the means to undo the law as a whole and pursue real reform will present themselves not next summer when the Court rules but next fall when the public does (Yuval Levin, 11/14).