#i wonder about making some kind of legislative scheme in which access to public funds is made dependent upon the availability of abortion

[cithaerons]

Here’s a good explanation from Bloomberg Law about the “constitutionality” of Congress codifying Roe - outdated because it was written before Dobbs’ official release but still accurate. I put “constitutionality” in quotation marks because what Congress has had the “constitutional” power to do has been incredibly inconsistent over the decades. but the long and short of it is that with a conservative SCOTUS the odds do not look great (at least in terms of a simple “codification” of Roe): https://news.bloomberglaw.com/us-law-week/does-congress-have-the-constitutional-authority-to-codify-roe 

After the leaked draft of Justice Samuel Alito’s abortion decision, supporters of Roe v. Wade are again pressing to “codify” that 1973 decision by writing its basic provisions into a federal statute. The idea is to preserve existing abortion rights nationwide without having to rely upon the U.S. Supreme Court’s interpretation of the Constitution.

Efforts to advance one version of such a bill failed in the Senate on May 11. But assuming that such a statute is eventually enacted, it may face court challenges claiming that the U.S. Constitution does not give Congress authority to enact such a law.

Roe v. Wade and the 14th Amendment

Supporters of a Roe statute say the authority lies in the 14th Amendment, which allows Congress to enforce the amendment’s liberty guarantees by “appropriate legislation.” But the Supreme Court has previously distinguished between legislation to enforce constitutional rights and legislation to define those rights. The first is a job for Congress, the second is not. Defining constitutional rights is the job of the courts.

The Supreme Court made this point in 1997 in City of Boerne v. Flores. At issue was the Religious Freedom Restoration Act (RFRA), a law passed by Congress after a Supreme Court decision limiting the First Amendment’s free exercise guarantees. In passing the RFRA, Congress said it was acting under the 14th Amendment to restore the constitutional meaning of free exercise, and that its legislation overrode any conflicting state or federal law.

The Supreme Court disagreed. Under the separation of powers, Congress had no authority to interpret constitutional rights differently than the courts. To be sure, Congress could make the RFRA override other federal laws. That was just Congress acting within its own area of authority. But, insofar as the states were concerned, the Supreme Court said that the RFRA was unconstitutional.

If Congress passes a Roe statute, it could easily suffer the same fate as the RFRA. It will likely be valid in areas where Congress is the ultimate legislature (e.g., District of Columbia, Puerto Rico, Virgin Islands, and the Pacific island jurisdictions), but probably not in the 50 states.

Congress’ Power to Regulate Interstate Commerce

Supporters of a national Roe law may also rely on Congress’ power to regulate interstate commerce. The Supreme Court has defined that power very broadly, but it has also placed limits on that power. In a 2000 case, United States v. Morrison, the Supreme Court invalidated portions of the federal Violence Against Women Act (VAWA).

The court said that the VAWA intruded into the states’ traditional police powers and that it could not be justified as a regulation of commerce. The Supreme Court could reach same result if Congress codifies Roe.

The court could reason that such a statute intrudes into the states’ traditional police powers (which a decision overturning Roe would effectively restore), and that abortions are not economic activities that substantially affect interstate commerce. To be sure, a state’s abortion laws may affect whether some people choose to migrate to (or from) that state, but the same could be said for many state laws, especially tax and education laws.

Nationalizing abortion laws on the theory that uniformity removes an obstacle (or incentive) to interstate migration would open the door to federally mandated uniformity in these other areas as well. The Supreme Court may conclude that basic principles of federalism require keeping that door shut.

What Congress Can Do

There is little doubt that Congress could enact laws prohibiting states from interfering with the right of women to travel out of state for procedures not available in their home states. But insofar as Congress may seek to trump state abortion restrictions, applicable within the state’s own borders, the Supreme Court may view any such federal statute as unconstitutional. By the same reasoning, of course, Congress would have no Commerce Clause authority to enact a law banning all abortions nationwide.

None of this is to say that abortion soon will be unlawful in all the states. Not even the leaked draft opinion comes close to saying that.

If the leaked draft correctly foreshadows the Supreme Court’s final decision, state legislatures will enact their own laws one way or the other. Some have already done so in anticipation of a Supreme Court decision overturning Roe.

Likewise, while not yet widely discussed, state courts will interpret their state constitutional provisions, whether to mirror Roe, to strike a different balance, or to leave the issue entirely up to their state legislatures. In any event, if authority over abortion laws is returned to the states, the debate between pro-life and pro-choice Americans will be sure to continue.

[nothingman]

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Health care is a human right.

Donna Smith has braved cancer, battled predatory insurance companies and fought relentlessly for health care reform for more than a decade. But she's not sure she'll survive the aftermath of Election Day.

"Every single morning since November 8, I sit and wonder if this will be the day that I have enough guts finally to end my life," she says.

Smith, a 62-year-old cancer survivor and campaigner for universal health care, is one of millions stuck between the death throes of the Obama administration's half-baked health care reform plan and the Trump regime's agenda of ending health insurance for millions. But beyond fighting political havoc in the Republican-led Congress, Smith is mostly racing against time now: If the Affordable Care Act (ACA) is repealed, as Trump and the Republican Congress have promised -- possibly in the next few weeks -- Smith will be forced to lean on her extended family's savings to pay for her care. Though she's satisfied with her Obamacare plan, the costs are already a burden, as is the oxygen tank that keeps her body going.

Suicide, she acknowledges, is virtually unthinkable. But emotionally, she says she is not "willing to devastate [her] family financially" to keep her alive. And oftentimes, struggling to survive feels like simply waiting for a more painful end to finish her off more slowly -- not through illness, but political malaise.

"In my gut, in my heart, I feel like I'm being discarded by those think the ACA was some kind of socialized medicine," she tells me. "Well, rest assured, [the insurance industry] made record profits. And there's nothing socialized about that."

Though hailed as Obama's keystone policy achievement, the ACA has deepened the health care crisis in many ways, by providing subsidized insurance expansions while plunging patients into a "free marketplace" that often makes survival prohibitively costly. Meanwhile, the ACA still excludes millions, including undocumented immigrants and people too poor to afford the premiums and fees of the available insurance plans, even with federal subsidies.

Meanwhile, Trump's newly appointed head of Health and Human Services, Tom Price, wants to shred Obamacare and push a massive deregulatory agenda across major federal "entitlements," possibly bringing total privatization or defunding of fundamental public health care programs for seniors and poor households.

So the country lurches between two health care crises -- on one side lies the Affordable Care Act's "free market" of half-baked, overpriced insurance schemes; on the other side Congress faces an insurance cliff, hurtling toward a repeal that could shove millions out of essential coverage and plunge countless families and medical providers into social turmoil. At the same time, the political havoc clears the way for a radical cure: why not "socialized medicine"?

The single-payer system, though often dismissed as irrationally idealistic, now looks like the nation's last hope for a democratic, universal health care solution. And the Trump-induced health crisis could become an unforeseen opportunity for single-payer advocates: The combined trauma of Obamacare's bureaucratic dysfunction, along with fear of the Republican agenda's privatization assault, just might spur a mass movement for a comprehensive government-run plan liberated from insurance markets: a single payer providing free, equal access, regardless of health or economic status.

Tragically, it might have taken a fatal crisis to spur an emergency response from policymakers. Still, advocates hope Washington's political disruption can break through single payer's perennial obstacle, the issue of branding. Conservative ideologues, the insurance lobby and the American Medical Association have long stifled serious debate about single payer, even though it parallels nationalized health care systems in nearly every other rich industrialized country, by vilifying the idea as a draconian, economically unsustainable socialist bureaucracy.

Ronald Reagan's avuncular Cold War red-baiting now seems quaintly stale in the wake of an election that pushed a self-proclaimed socialist near the top of the Democratic ticket during the primaries. And with polling that strongly favors the concept of government-supported national universal health care, "socialized medicine" is facing an unexpectedly positive prognosis.

"If public support passed legislation, we would have had single payer a long time ago," says Benjamin Day, a Boston-based organizer with the pro-single-payer campaign Healthcare Now.

Day, like many other single-payer champions, got converted as a survivor of the twin crises of mental health problems and health care costs. During his graduate studies in 2005, he experienced an onslaught of anxiety attacks, leading to hospitalization and a traumatic financial dispute with his insurer over his crushing medical bills. The ordeal pushed him out of school and into full-time organizing for the one policy solution he thinks can break the political stalemate and the medical cost curve that upended his life.

Day acknowledges that the ACA, by combining insurance plan expansion, public subsidies and widening eligibility for Medicaid for low-income households, did expand coverage for more than 20 million people. But he also stresses that it deserves criticism for soaring premiums and fees and uneven quality of "market-based," often mismanaged, plans. Consequently, even many of those who've gained insurance under Obamacare have realized it was a thin bandage rather than a cure for a broken system.

Recent Pew Research surveys show more than half of respondents, both Democrats and Republicans, favoring a government-guaranteed program of medical coverage for all, and about 30 percent explicitly supporting single-payer health care.

"People have adopted this value," Day says, "but they're not willing to accept the one policy that will actually protect that right [to] universal health care. ... We're just going through the political struggles of getting to what you actually need to do to make that happen."

The struggle now centers on Congress, with mounting panic percolating at district offices where ACA beneficiaries have held rallies to protest potential loss of their insurance. Many of them might have been attracted to Trump's populist rage against the ACA on the campaign trail, but for all their frustrations with rising premiums, because Republicans have no meaningful replacement plan prepared, they'd still prefer substandard care to losing coverage altogether.

Despite the potential shock of a mass termination of ACA plans, Trump has vowed to pull the plug on the ACA as soon as possible and replace it with some sort of "great" national universal plan, but details remain elusive. And though Republicans have long hungered for Obamacare's destruction, so far they've fumbled on assembling a financially viable surrogate for its more than 20 million beneficiaries.

This could be the moment that the country finally comes to its senses on single payer, according to Dr. David Himmelstein, cofounder of the advocacy network Physicians for a National Health Plan (PNHP).

Facing the inevitable collapse of an unsustainable system, "now there's much more ... appetite for addressing the fundamentals," Himmelstein said.

One proposal for enacting single payer is simply extending and fortifying the basic infrastructure of Medicare, the centralized plan covering seniors over 65. Even Medicare in its current form is not a pure single-payer program: It suffers from its own funding gaps and contains major coverage deficits patched by semi-privatized or market-based care. (Republicans are now poised to exacerbate these gaps with post-ACA reforms that would replace it with more private, fee-based programs, which could destroy publicly subsidized care generally, endangering both Medicare for seniors and Medicaid for low-income families.)

However, as a blueprint for a workable single-payer network, the popular program could form a politically acceptable foundation for a universal health plan.

According to a recent cost analysis published by Drs. Himmelstein and Steffie Woodhandler, another PNHP cofounder, an enhanced "Medicare for all" system, which would consolidate private insurance schemes into a single, unified care network covering every patient, would save the public a total of more than $610 billion in 2017 alone, including more than $100 billion in reduced drug costs, primarily by cutting administrative waste and bloat, and integrating all services under a transparent, uniform cost structure. Patients, meanwhile, would be guaranteed lifetime coverage without insurance fees or premiums, and no risk of exclusion from coverage.

In Congress, Rep. John Conyers recently reintroduced the primary single-payer proposal, the Expanded & Improved Medicare For All Act, with 59 cosponsors. But if a nationwide single-payer overhaul fails to pass, single-payer advocates are militantly campaigning for "single-payer" legislation -- which would establish a centralized, state-managed financing structure for all medical services introduced at some point or soon to be introduced in about half of the states, including California, Oregon, Maine and New York. The chaos of the ACA's impending demise could make it more difficult for right-wing critics to argue against a public health care program in the states. Advocates also hope to pick up the vestigial energy lingering from the Bernie Sanders campaign's full-throated battle cry for single payer, which shined a national spotlight on the only ACA alternative that could help close both the health coverage gap and the economic divide.

Thus far, however, no state has successfully passed and enacted a fully public universal care system. Vermont got close a few years ago with a centralized health plan under a government-controlled delivery system, but foundered amid uncertainty over financing, as lawmakers balked at the risk of shortfalls in federal funding or tax revenue. A ballot initiative that would have established a similar system in Colorado died in the last election cycle.

Smith, the cancer survivor and health care activist, worked with a national reform coalition to lead the Healthcare for All Colorado campaign. She believes the referendum was doomed because insurance industry groups vastly outspent their grassroots campaign with a lobbying and campaign blitz to paint the single-payer bill as overly costly for taxpayers.

Still, Smith says that Trump's election has recharged the labor, consumer and civil rights coalition that single-payer stalwarts like her have steadily cultivated since the George W. Bush administration. The demand for a radical overhaul of health care has intensified under Trump as "a response to what appears to be ... an attack on all things that would be part of the social safety net in this country.

The battlefront is widest in New York, where State Assembly Member Richard Gottfried has reintroduced a comprehensive single-payer model reform plan. The bill passed the assembly in 2015 and 2016 by overwhelming majorities, but died in the Republican-dominated Senate. The bill builds on the coverage expansions of the ACA, draws from other federal and state funding streams like Medicaid, and moves toward a fully public consolidated medical system overseen by an appointed board of providers and government stakeholders, with all funds consolidated under the brand "New York Health." Though it could use multiple state and federal funding sources for patients and providers, services would come directly from the state, not private insurers, and New Yorkers would all essentially be cared for by one "seamless" government authority.

Gottfried's proposal would be funded by an estimated progressive annual income tax surcharge ranging from 0 percent for poor families up to 16 percent for household incomes exceeding $200,000. By improving cost-effectiveness in every aspect of care, the plan aims to save nearly $2,200 per person in the first year, while generating some 200,000 jobs for the state.

Lawmakers in Oregon are currently weighing another health care reform proposal in light of three pathways to universal coverage with varying levels of government involvement: one is a "public option" that the government would administer to theoretically compete with private insurers in the commercial marketplace. Alternatively, the state could stitch together public and private plans into a state-governed "health care ingenuity plan" that would regulate costs but maintain the basic marketplace infrastructure. Yet single-payer advocates warn that the insurance industry must be completely removed, pointing to the failure of the public-private hybrid model in various states where health care "cooperatives" -- regulated nonprofit providers that compete alongside private insurers -- have collapsed financially (including a major cooperative in Oregon), squeezed out of the market by commercial insurance oligopolies.

A comprehensive independent study by the RAND Corporation concluded that the full-fledged single payer option is the only one that effectively puts Oregon patients above profits, and is most geared toward affordability, despite placing the most complex burden on public coffers.

Meanwhile, California lawmakers introduced a major public health care bill in mid-February, which follows other states in seeking to totally replace insurance companies with a regulated government-run health care provider for all (including undocumented immigrants, unlike the ACA).

As anxiety over the possible ACA repeal intensifies, the single-payer coalition continues to expand as progressive unions like National Nurses United and some health care professionals rally for a more equitable system for providers and patients.

According to Adam Gaffney, a physician and writer on health care politics [full disclosure: a colleague of the author] who campaigns with PNHP, from a medical professional's perspective, from a medical professional's perspective, while Obamacare did help close the insurance gap by bringing millions more patients into the system, it remained fatally tethered to the insurance and drug industries, while leaving providers without the resources or a rational cost structure to make care truly affordable.

"Those unhappy with the inadequacies of Obamacare," Gaffney warns, "are going to despise the meanness of GOP-Care." Yet ironically, Trump's election has woken people up to the fact that, "We must be bolder in order to win -- and that includes offering a much better and more egalitarian vision of how health care could be in this nation."

Advocates say the main constituency that needs convincing now isn't the public, but Capitol Hill, as Republicans propose post-ACA plans based on the same wrongheaded belief that corporate-led "market liberalization" will solve our health care woes.

"The reality is this country will continue to churn on this issue, on health care until we join rest of the civilized countries on this planet and finally decide that providing health care for all is a right," says Smith.

Her anger keeps her hopeful that lawmakers will realize what people like her understand every day a little more painfully. "I try to do my worrying early in the morning," she says, "and just put one foot in front of the other, and do what I have to do to fight back, and hope and pray that [someone in the Republican Party has] the guts and the courage and the ethical standards to say, 'We are more decent than this. We care more about one another than this.'"

Copyright, Truthout.org. Reprinted with permission.

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