News Health Systems

Reid and Pelosi Celebrate Opening of Obamacare Exchanges Amid Government Shutdown

Adele M. Stan

House Minority Leader Nancy Pelosi and Senate Majority Leader Harry Reid joined union leaders in celebration of the official launch of the Affordable Care Act, and laid the government shutdown at the feet of Republicans.

Click here for all our coverage of the government shutdown.

As House Minority Leader Nancy Pelosi took the podium in the Capitol Visitor Center on Tuesday, her exuberance was palpable. At an event sponsored by labor unions and health-care advocacy groups, Pelosi came to celebrate the October 1 opening of the health-insurance exchanges created by the Affordable Care Act (ACA), a piece of legislation that is as much her signature achievement as it is President Obama’s.

More than a million people, Pelosi said, had already signed on to Healthcare.gov or called the toll-free number for information about the exchanges by mid-afternoon on Tuesday, and other speakers at the event, hosted by Americans United for Change, a progressive organization allied with labor unions, noted that the government website was so overwhelmed with traffic that it was running a bit slowly.

“It’s pretty exciting even though there was an attempt to say, ‘We’re going to distract everyone from enrollment in [insurance plans offered through] the Affordable Care Act by shutting down government,’” Pelosi said of the Republican majority in the House of Representatives, which voted on Monday to attach a measure to the continuing resolution—the legislation needed to keep government running—that would have delayed implementation of the ACA, also known as Obamacare.

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Because the Senate, which is controlled by Democrats, stripped the measure out of the continuing resolution before returning the bill to House, the government was shuttered on the same day that the insurance exchanges opened for business.

As Brad Woodhouse, president of Americans United for Change put it: “At 12:01 this morning, Republicans shut the government down. At 12:01 this morning, Democrats brought affordable health care to the American people.”

Joining Pelosi at the podium was Majority Leader Harry Reid, who has pledged not to negotiate over implementation of the health-care law, for which Republicans also tried to revoke funding with an earlier version of the continuing resolution, a measure that also failed to pass the Senate. Pelosi heralded Reid as a force critical to the ACA’s passage in 2009.

The union members and activists—including dozens from Planned Parenthood—gave Reid a hero’s welcome when he entered the room, apparently in recognition of his refusal to compromise on Obamacare. (The latest House version of the continuing resolution included a delay of the prescription contraception benefit and other preventive health care for women.)

Reid marked the occasion celebrating the health-care law by taking a swipe at GOP predictions of a health-care disaster and by comparing those with similar reactions to the introduction of Social Security and Medicare more than 50 years ago. Recalling remarks made by Ronald Reagan in 1961, Reid quoted the late president, saying: “‘If you don’t stop Medicare, one day you and I are going to spend our sunset years telling our children and our children’s children what it once was like in America when men were free.’ Well, I haven’t heard anything like that since last night, in the House of Representatives.”

Other members of the House and Senate spoke, include Representatives Sander Levin (D-MI), Nydia Velázquez (D-NY), and George Miller (D-CA), as well as Senators Max Baucus (D-MT) and Tom Harkin (D-IA), who poignantly noted that among the large class of progressives he entered Congress with in 1974, “only four are left.”

Union leaders Mary Kay Henry, president of the Service Employees International Union (SEIU) and Lee Saunders, president of the American Federation of State, County, and municipal employees also stepped forward to celebrate implementation of the act.

Most moving, though, were the stories of individuals—those of Leslie Boyd, who lost her son before Obamacare’s passage because he was denied a cancer screening by his insurance company, and Maureen Murphy, who said that the Affordable Care Act had literally saved her life after private insurers rejected her for a pre-existing condition, making it impossible for her to get treatment of a life-threatening immunological disorder.

After the event came to a close, members of the American Federation of Government Employees gathered on the capitol grounds. “We Want to Work,” their signs read.

News Abortion

The Forgotten History of Republicans’ (Failed) Attacks on Fetal Tissue Research

Christine Grimaldi

Today's congressional inquiry not only derides fetal tissue research, but attacks abortion care. The inaugural hearing in March 2016 gave Republicans a platform to compare fetal tissue research to Nazi experimentation. Republicans derided Democrats for exaggerating the importance of fetal tissue.

Republicans in Congress sixteen years ago were more vested in supporting life-saving fetal tissue research than they were in mischaracterizing such research to score political points.

The times, and the talking points, have changed.

In 2000, GOP lawmakers in the U.S. House of Representatives conducted an investigation into fetal tissue practices based on a deceptive Life Dynamics video featuring a disgruntled former tissue procurement company employee. Dean Alberty alleged that two of his employers, Anatomic Gift Foundation (AGF) and Opening Lines, which acquired and distributed human fetal tissue to researchers, trafficked fetuses for profit. He also claimed that abortion providers altered procedures to obtain better tissue specimens. 

Life Dynamics, which remains a prominent anti-choice group, paid Alberty thousands of dollars during and after the time he worked in the tissue procurement business. Republicans summoned Alberty to be their key witness, but he later admitted under oath that he had lied about business operations in the Life Dynamics video and in an interview with the then-prominent ABC television news program 20/20.

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Alberty’s reveal came as a surprise, and an embarrassment, to Republicans during a hearing on the allegations before the House Energy and Commerce Committee Subcommittee on Health and Environment.

“Your credibility, as far as this member is concerned, is shot,” said then-Rep. Richard Burr (R-NC), who now serves in the U.S. Senate.

Sixteen years later, credibility doesn’t seem to carry the same weight for anti-choice Republican lawmakers as a new set of videos alleging problems with fetal tissue donations have simultaneously been discredited but are still being used as the basis of hearings some have called a witch hunt.

In July 2015, Rep. Trent Franks (R-AZ), sponsor of the so-called Prenatal Nondiscrimination Act of 2016, and some of his colleagues coordinated with the Center for Medical Progress (CMP), the anti-choice front group responsible for the widely discredited smear campaign alleging that Planned Parenthood profited from fetal tissue donations.

The House Energy and Commerce, Judiciary, and Oversight and Government Reform committees launched investigations upon the release of the first surreptitiously recorded videos and have continued to attack fetal tissue research, even though GOP officials in 12 states have since cleared Planned Parenthood of wrongdoing.

The first set of House hearings also failed to turn up any evidence that laws governing fetal tissue donation or research had been broken.

House Republicans nonetheless voted in October to form the Select Investigative Panel on Infant Lives, an Energy and Commerce panel relying on the CMP videos and other allegedly falsified evidence to prove their charges of “baby body parts” for sale.

Rep. Marsha Blackburn (R-TN), the panel’s chair, and other congressional committees have subpoenaed more than 2,000 pages of documents from tissue procurement company StemExpress. However, Blackburn has not brought in David Daleiden, the founder of CMP, to testify, although he now faces felony charges for his role in the original smear campaign.

Daleiden Testimony Could Undermine Republicans

Precedent doesn’t bode well for Republicans and their supposed whistleblowers.

Alberty, for example, expanded on his allegations of fetal tissue misconduct in the 20/20 interview with then-correspondent Chris Wallace, who now anchors Fox News Sunday. 20/20 separately targeted Opening Lines founder Dr. Miles Jones in an ostensibly damning undercover video included in the segment.

Alberty was unequivocal about wrongdoing. “This is purely for profit. Everything was about money,” he told Wallace. 

Wallace, for his part, narrated that Alberty had accepted thousands of dollars to act as an informant for Life Dynamics while continuing to work in the tissue procurement business. Why believe Alberty, then?

“I will stand behind my words until I die,” Alberty said. “I will go in front of Congress if I have to and testify under oath.”

Alberty appeared before the subcommittee the morning after the 20/20 segment aired. By that time, he had changed his story in an affidavit and a deposition that Democrats referenced to undermine his claims.

“When I was under oath I told the truth,” Alberty admitted during the hearing. “Anything I said on the video when I’m not under oath, that is a different story.”

Alberty’s name resurfaced at the select panel’s April 2016 hearing on fetal tissue “pricing,” which featured GOP exhibits reportedly taken from the CMP videos. Fay Clayton, a senior partner and founding shareholder of Robinson Curley & Clayton, P.C. and a witness for the Democrats, recalled her experience representing AGF. Alberty admitted to fabricating claims about AGF in the deposition with Clayton. 

Republicans did not know about the deposition until Democrats raised it during the 2000 hearing.

“Fetal tissue wasn’t ‘for sale’ at all,” Clayton said at the 2016 “pricing” hearing. “What was for sale was phony witness testimony, bought and paid for by opponents of abortion.”

An FBI investigation cleared Opening Lines and Jones of the trafficking charges. The U.S. Department of Justice (DOJ) also found no violations of federal statutes and closed an investigation in 2008, Robert Raben, a former DOJ official, said when he testified for the Democrats at the panel’s 2016 “pricing” hearing. 

Clayton called for members of the panel to get Daleiden under oath to tell the truth or face legal repercussions for perpetuating his claims. However, Republicans misrepresented Clayton’s testimony by saying she called for StemExpress to turn over accounting records. Blackburn soon subpoenaed those records and threatened “to pursue all means necessary” as the investigation proceeds.

Rep. Diana DeGette (D-CO), co-chair of the House Pro-Choice Caucus, has no doubts about why Republicans continue to rely on third-party witnesses rather than Daleiden.

“I don’t think they want to bring David Daleiden in because they know that he’s a shady character and an unreliable witness,” DeGette said in an interview with Rewire.

Anti-Choice Tactics Influence Current Inquiry

As the only lawmaker to serve on the past and present investigations, DeGette sometimes feels like she’s “in a real-life version of Groundhog Day.”

“We keep having these same kinds of hearings, over and over again,” DeGette said. “In my opinion, there’s continuing pressure on the Republican Party from the far-right anti-choice movement to have these hearings, even though the claim of sale of fetal tissue has been repeatedly disproved.”

Anti-choice tactics, if not the key players, behind what congressional Democrats have branded a “witch hunt” to undermine fetal tissue research are similar today.

Life Dynamics, the anti-choice group behind the Alberty video, receives the majority of its funding from fracking billionaires Dan and Farris Wilks—the main backers of Sen. Ted Cruz’s (R-TX) suspended presidential campaign. Providers told Rewire in March that a Life Dynamics document has been used to deceive and intimidate both patients and providers by threatening legal action should they go through with obtaining or providing abortion care.

Perhaps the biggest difference between the past and present inquiries is Republicans’ attitudes toward fetal tissue research—and their ability to separate research from abortion.

The shift can be summed up in one word: politics.

“I think the difference is a structural one with a political origin,” Raben, the former DOJ official, told Rewire in an interview.

Republicans in 2000 investigated fetal tissue practices as part of a standing subcommittee. House Republicans today created the select panel, sought members to serve on it, and despite the lack of any evidence, continue to fund it through tax dollars that otherwise would not be diverted to sustained attacks on fetal tissue research.

“In the face of lousy evidence, they’re going to keep going,” Raben said.

Inquiries Diverge on Science

The current inquiry not only derides fetal tissue research, but also attacks abortion care. The inaugural hearing in March 2016 gave Republicans a platform to compare fetal tissue research to Nazi experimentation. Blackburn subsequently derided Democrats for exaggerating the importance of fetal tissue.

Democrats have warned that such rhetoric could slow scientific advances on dangerous diseases, including the Zika virus, which is linked to irreparable defects in the developing fetuses that Blackburn and her Republican counterparts have pledged to protect.

In 2000, even anti-choice Republicans repeatedly deferred to science on fetal tissue research.

“Today’s hearing is not about whether fetal tissue research is a good or bad thing, and it is definitely not about whether a woman should have a right to choose to have an abortion, which is the law of the land,” former Energy and Commerce Chair Tom Bliley (R-VA) said in 2000. “Whether we are pro life, pro choice, Republican, Democrat, or Independent, I think and hope that we can all agree that present federal law which allows for this research should be both respected and enforced.”

At that time, leading Republicans on the subcommittee also extolled, in the words of Rep. Fred Upton (R-MI), the “life-saving research” that their investigation aimed to protect.

Upton had worked in 1992 with former Rep. Henry Waxman (D-CA) to lift the ban on fetal tissue research. And he further expressed disappointment when President George H.W. Bush vetoed their effort.

“It’s really tragic,” Upton said then. “We tried to lift the substance over politics.”

President Bill Clinton signed legislation legalizing fetal tissue donations in 1993. “Being for fetal tissue transplantation is consistent with being for life,” Upton reportedly said during that era.

Republican Fetal Tissue Allies Disappear

Upton’s approach today does not reflect what happened the last time an anti-choice group manipulated evidence and fed it to congressional Republicans. The contents of CMP’s heavily edited smear videos “can’t help but make you weep for the innocents who were sacrificed in such a cavalier manner for alleged profit,” Upton wrote in a op-ed published in the weeks after the release of the first CMP recording.

Although Upton does not serve on the panel, he effectively sanctions the investigation as chair of the full House Energy and Commerce Committee. Under House rules, standing subcommittees draw funding from the budget of the full committee with jurisdiction. The full committee chair is in charge of managing additional funds from the House Administration Committee, which sets aside $500,000 per session of Congress to supplement operating budgets, according to a senior House Democratic aide with knowledge of the chamber’s rules.

The aide said the panel follows the same procedures, receiving an undisclosed amount from Energy and Commerce and an additional $300,000 from Administration.

Administration Democrats unsuccessfully protested the transfer at the end of last year. “Spending taxpayer money on this select panel is wasteful on substantive grounds and unnecessary on practical grounds,” they said.

The transfer followed the House’s informal two-thirds/one-third funding split between the majority and minority parties, with the Republicans receiving $200,000 and the Democrats $100,000, the aide said. Full committee leaders are charged with distributing the funds, meaning that Upton had to do so with the $200,000 for Blackburn, the aide said.

Rewire contacted Upton’s office with questions ranging from whether the chair approves of the panel’s approach to how much more financial resources he will direct from the full committee’s budget to the panel. Rewire asked for Upton’s views on fetal tissue research, including if he shares Blackburn’s derision for the research and if he considers fetal tissue and “baby body parts” to be separate.

In response, a committee spokesperson emailed a brief statement. “The efforts of the Select Panel have always been based on learning the facts,” the spokesperson said. “The panel has been given a one-year term to conduct that mission, and will continue their important work. Chairman Upton has been a supporter of the panel’s charge and their efforts to protect the unborn.”

Republican Leaders Disregard Appeals to Disband Panel

Although Upton’s office told Rewire that the panel was given one year, the resolution that created the panel suggested it could go longer. The resolution only specifies that the panel will come to an end 30 days after filing a final report.

Democrats have repeatedly called on House Speaker Paul Ryan (R-WI) to disband the panel, including in a letter to Ryan and Blackburn last month. The panel’s Democrats again appealed to Ryan after Blackburn subpoenaed a prominent abortion provider, shifting the target from fetal tissue procurement and research to later abortion care.

DeGette said some congressional Republicans have privately shared concerns about the panel with her, but won’t do so publicly, even as their counterparts on the panel have gone “rogue.”

“This is so out on the fringes that really, I think it’s beginning to reflect on Speaker Ryan and on the whole Republican leadership in the House,” she said.

News Law and Policy

Supreme Court Punts on Birth Control Benefit Challenges

Jessica Mason Pieklo

The next question is whether, over the coming months, the federal appeals courts can once and for all put an end to this litigation by issuing consistent decisions, or whether it’s going to take a fifth justice on the Roberts Court to do so.

The U.S. Supreme Court on Monday sent back to the appellate courts a series of cases brought by religiously affiliated nonprofits against the birth control benefit in the Affordable Care Act (ACA).

The religious nonprofits argue that the opt-out process for complying with the ACA’s requirement that employer-provided health insurance plans cover contraception as preventive care violates the Religious Freedom Restoration Act (RFRA).

The decision issued in Zubik v. Burwell was per curium, which means it was a group decision “by the Court” rather than one in the name of a majority of justices. The decision avoids for now a direct ruling on whether the accommodation process violates the RFRA.

The Court had consolidated seven cases into a single oral argument, but on Monday released separate orders in each case instructing the appellate courts to reconsider them. That means there will likely be additional briefings and oral arguments, putting off final resolution of the issue until after the 2016 presidential election.

The Court instructed the lower courts to “to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.'”

In short, the justices told the parties to, once again, try and work it out on their own.

The justices sent a clear instruction to the nonprofits challenging the accommodation process: While the litigation moves forward, the goal of the birth control benefit—to provide seamless contraceptive coverage—must remain in place.

“Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans ‘obtain, without cost, the full range of FDA approved contraceptives,’” the Court wrote.

But just as the Court warned the nonprofits about trying to further interrupt contraceptive coverage for their employees and students, it warned the Obama administration not to move forward in enforcing penalties for those institutions that have objected to the accommodation process and to providing contraceptive coverage.

“Through this litigation, petitioners have made the Government aware of their view that they meet ‘the requirements for exemption from the contraceptive coverage requirement on religious grounds,’” the Court wrote. “Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.”

Justice Sonia Sotomayor, while agreeing in the outcome of the case, wrote a separate opinion, joined by Justice Ruth Bader Ginsburg. That opinion warns the lower courts and nonprofit challengers not to presume the Supreme Court would, in future arguments, accept the challengers’ argument that some other mechanism exists for accommodating the religious objections to providing contraception.

“Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests,” Sotomayor wrote. “On remand in these cases, the Courts of Appeals should not make the same mistake.”

Furthermore, Sotomayor clarified, “The opinion does not, by contrast, endorse the petitioners’ position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a ‘separate policy, with a separate enrollment process.’”

“Such separate contraceptive-only policies do not currently exist, and the Government has laid out a number of legal and practical obstacles to their creation,” the Court wrote.

Monday’s decision resolved effectively nothing when it came to the battle over the ACA’s accommodation process. The next question is whether, over the coming months, the federal appeals courts can once and for all put an end to this litigation by issuing consistent decisions, or whether it’s going to take a fifth justice on the Roberts Court to do so.