Analysis Law and Policy

The Legal Challenge To Obamacare Nobody’s Talking About But Should

Jessica Mason Pieklo

Think conservatives have given up on their constitutional challenges to the individual mandate? Think again.

Republican House Speaker John Boehner may have conceded, momentarily at least, that as a result of the 2012 presidential elections, Obamacare is “law of the land,” but there’s no reason to believe this is actually the Republican position. In fact, we have at least one lawsuit in the pipeline that proves it’s not.

Last month the state of Oklahoma filed the first, in what we can expect to be a series of legal challenges over a key component in the implementation of health care reform. At issue in the lawsuit is whether or not the federal exchanges created in the health care reform can constitutionally give people subsidies to help pay for coverage. According to the legal challenge, the statutory language of the Affordable Care Act authorizes subsidies and credits for insurance only in state-run exchanges and any attempts by the federal government to administer its own subsidies are unconstitutional.

Oklahoma, like a host of states governed by conservatives with a pathological opposition to Obamacare, has refused to implement its own exchange. Should those states refuse to set up exchanges by January 2014 the law calls for the federal Department of Health and Human Services to establish a state-based exchange for them. As part of the creation of those federal exchanges the IRS implemented a rule that  in essence, authorizes the IRS to distribute tax credits and subsidies through those federally-operated health insurance exchanges in those states that refuse to establish their own exchanges.

But Oklahoma argues that the Obama administration can’t do that. Instead, they argue, if the federal government comes in and sets up an exchange because a recalcitrant state refuses to participate, those exchanges can’t offer subsidies for insurance coverage. Should the court agree this would functionally leave no means of affordable coverage in most of the red states that need it most.

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Add this lawsuit to the approximately 34 other lawsuits challenging the contraception mandate and the conservative strategy becomes clear. As is the case with abortion rights, having lost on the ultimate issue of whether or not the law is constitutional, conservatives have opted for widespread and multi-faceted challenges designed to chip away at the core protections until they are rendered effectively meaningless.

What that means as we move back from campaigning to governing is that Speaker Boehner and other conservatives can pledge whatever they’d like concerning health care reform. The minute they stop filing lawsuits challenging the constitutionality of its key components we’ll know they’ve actually accepted health care reform is here to stay. 

News Abortion

Pennsylvania’s TRAP Law Could Be the Next to Go Down

Teddy Wilson

The Democrats' bill would repeal language from a measure that targets abortion clinics, forcing them to meet the standards of ambulatory surgical facilities.

A Pennsylvania lawmaker on Wednesday introduced a bill that would repeal a state law requiring abortion clinics to meet the standards of ambulatory surgical facilities (ASF). The bill comes in response to the U.S. Supreme Court’s ruling striking down a similar provision in Texas’ anti-choice omnibus law known as HB 2.

A similar so-called targeted regulation of abortion providers (TRAP) law was passed in Pennsylvania in 2011 with bipartisan majorities in both the house and state senate, and was signed into law by former Gov. Tom Corbett (R).

SB 1350, sponsored by Sen. Daylin Leach (D-Montgomery) would repeal language from Act 122 that requires abortion clinics to meet ASF regulations. The text of the bill has not yet been posted on the state’s legislative website.

The bill is co-sponsored by state Sens. Art Haywood (D-Philadelphia), Larry Farnese (D-Philadelphia), and Judy Schwank (D-Berks).

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Leach said in a statement that there has been a “nationwide attack on patients and their doctors,” but that the Supreme Court’s ruling upholds the constitutionally protected right to terminate a pregnancy.

“Abortion is a legal, Constitutionally-protected right that should be available to all women,” Leach said. “Every member of the Pennsylvania General Assembly swore an oath to support, obey and defend the Constitution of the United States, so we must act swiftly to repeal this unconstitutional requirement.”

TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to medical clinics, have been passed in several states in recent years.

However, the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt that struck down two of the provisions in HB 2 has already had ramifications on similar laws passed in other states with GOP-held legislatures.

The Supreme Court blocked similar anti-choice laws in Wisconsin and Mississippi, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.

News Law and Policy

Wisconsin Can’t Enforce GOP’s Voter ID Law in November

Jessica Mason Pieklo

Republican lawmakers in other states, like Ohio, have turned up almost nothing during lengthy investigations into claims of voter fraud.

A federal judge in Wisconsin on Tuesday ruled that voters unable to comply with the state’s photo ID requirement be allowed to vote in November, striking a blow to conservative efforts to drive down Democratic voter turnout in the state.

Tuesday’s decision, issued by Judge Lynn Adelman, did not strike the law, but instead carved out an exception, ruling that voters who are unable to obtain an ID be permitted to sign an affidavit testifying to that inability and receive a ballot to vote. “Any voter who completes and submits an affidavit shall receive a regular ballot, even if that voter does not show acceptable photo identification,” according to Adelman’s decision. “No person may challenge the sufficiency of the reason given by the voter for failing to obtain ID.”

Conservatives in Wisconsin, including former Republican Party presidential candidate Gov. Scott Walker, proposed the measure, arguing it was necessary to prevent voter fraud.

Republican lawmakers in other states, like Ohio, have turned up almost nothing during lengthy investigations into claims of voter fraud.

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“Although most voters in Wisconsin either possess qualifying ID or can easily obtain one, a safety net is needed for those voters who can’t obtain qualifying ID with reasonable effort,” Adelman wrote. “The … affidavit option is a sensible approach that will both prevent the disenfranchisement of some voters during the pendency of this litigation and preserve Wisconsin’s interests in protecting the integrity of its elections.”

Adelman declined to apply the photo ID exception to the state’s August primary, ruling state officials would not have enough time to prepare for it.

The fight over Wisconsin’s voter ID law goes back to 2011, when attorneys from the American Civil Liberties Union and National Law Center on Homelessness and Poverty sued, arguing the law violated both the U.S. Constitution and Section 2 of the Voting Rights Act.

Adelman initially blocked the law, but the Seventh Circuit Court of Appeals reversed that decision and sent the case back to Adelman for another look. That left the requirement in place for Wisconsin’s presidential primary in April.

Tuesday’s ruling means those who were unable to comply with the photo ID requirement can still cast a ballot in the November 8 presidential election.