Obamacare in a Plain Brown Wrapper

It's hot here today. 85 and heading toward the mid 90s and muggy. A pretty nice, gusty west wind though so maybe the beach won't be too bad.

Hey, this wasn't supposed to happen! Long wait times in ERs due to ObamaCare

Wait times for seeing doctors have become an issue even outside the VA, which was a totally predictable outcome of ObamaCare. What wasn’t predicted was that the impact on wait times would be seen in emergency rooms, since one of the arguments for ObamaCare was to shift patients out of ERs and into clinics with an expansion of coverage. One California television station reported on lengthening ER waits, and notes that the trade group for ER providers lays the blame on the new health-insurance system:

It's a good video. Watch it.

Obamacare's next threat: A September surprise

Obamacare open enrollment closed March 31. The White House’s Obamacare war room did not.

Most state health insurance rates for 2015 are scheduled to be approved by early fall, and most are likely to rise, timing that couldn’t be worse for Democrats already on defense in the midterms.

The White House and its allies know they’ve been beaten in every previous round of Obamacare messaging, never more devastatingly than in 2010. And they know the results this November could hinge in large part on whether that happens again.

So they’re trying to avoid — or at least, get ahead of — any September surprise.
Aware that state insurance rate hikes could give Republicans a chance to resurrect Obamacare as a political liability just weeks before the midterms, the White House’s internal health care enrollment outreach apparatus immediately redirected into a rapid-response, blocking-and-tackling research and press operation geared toward preempting GOP attacks on the issue.

Little Sisters of the Poor Make NOW's "Dirty 100" List

The National Organization of Women (NOW) has compiled a list of what they're calling the "Dirty 100" — organizations who have filed suit against the HHS Contraception Mandate. One of the "Dirty 100" organizations that NOW claims is simply "using religion" to discriminate against women, is, in fact, a group of Catholic religious sisters called the Little Sisters of the Poor.

The Little Sisters of the Poor take vows to tend to the needs of the elderly poor. They are opposed to providing contraception to their employees as contraception violates the teachings of the Roman Catholic Church. The Little Sisters of the Poor are not considered to be a "religious employer" and exempt from the mandate as they employ and care for people of all faith backgrounds.
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Nothing quite says a "force for women's rights" like attacking a group of women, am I right?

And from Maggie's Farm's Dr. Joy Bliss: Hobby Lobby, medical insurance, etc.

I am not sure why Obamacare rules require coverage for sexual conveniences. Sex is not a disease and, indeed, it is a sign of health. I recall that major medical policies frequently do not even cover labor and delivery because pregnancy is not a disease either.

The Obamacare rules do not require coverage for cosmetic surgery, at least not yet. Somebody will lobby for "Sagging Jowl Syndrome," you can be certain, in the future. When government gets involved with medicine, medicine becomes politicized and "diseases", "disorders", and "dysfunctions" proliferate.

Because "War on on Women" and "Shut up," that's why.

From Patterico: A Halbig F*cking Deal: The Triumph of Textualism Over the “Intent” Argument That Leftists Hope Will Save ObamaCare

To review from my original post on the matter: The law’s plain language says subsidies are available only when a health plan is purchased on an exchange “established by the state under section 1311.” 34 states refused to establish an exchange, after which the HHS Secretary invoked her authority to set up federal exchanges under a different section: section 1321. Then the IRS promulgated a rule that said exchanges set up by the Secretary under section 1321 were actually exchanges “established by the state under section 1311.”

The plaintiffs in the lawsuit say: “state” does not mean “federal government.” The exchanges established by the HHS Secretary under section 1321 are not “established by the state under section 1311.” Making the point even clearer: a “state” is defined in the ACA as “each of the 50 States and the District of Columbia,” they note, and not the federal government.

The Obama lawyers say: oh, come on. Don’t look at the plain language of that one provision. You gotta look at the whole law and the intent of Congress.
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BOTTOM LINE: After hearing the entire argument, I am convinced that we are about to see a 2-1 ruling against Obama from this panel.

WHAT HAPPENS NEXT?

Even if the panel rules the right way, as I expect they will, there is a long road to a final decision, likely beginning with an en banc rehearing:

If the three-judge panel rules against federal Obamacare subsidies, sources close to the case say the administration is very likely to request an en banc ruling — a re-vote taken by the full D.C. Circuit. The math of the overall bench is friendlier to the White House: 7 judges are Democratic appointees and 4 are Republican appointees. Four of the judges were placed by President Barack Obama himself, all during his second term.

Any time you forego plain language in favor of rootless searches for legislative “intent,” you give dishonest leftists an opening. And the brute politics of the makeup of the full en banc panel — together with the malleable “intent” standard that gives those judges a warrant to write their own preferences into the law, and the text of the statute be damned — make a pro-Obama ruling from the en banc court seem likely.

Of course, the matter will likely eventually end up in the U.S. Supreme Court, unless they chicken out and refuse to hear it, which seems to me unlikely. I like our chances there better. Kennedy, often a squish, was a solid vote against ObamaCare in the previous major ObamaCare decision. I know you guys are skeptical about what John Roberts would do, but I think there is a better than even chance that he would choose the textualist approach.

In fact, if the Justices were to be honest, this would be a unanimous decision against Obama in the Supreme Court. Jonathan Adler has collected some recent quotes from the Supreme Court on rewriting statutes to reflect “intent” — and even the lefties are not supportive of the idea . . . in the right case. Justice Kagan said in one opinion: “This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that (in [the IRS's] words) Congress ‘must have intended’ something broader.” But that was said in a boring lawsuit about American Indian tribal sovereign immunity. Somehow, I think Kagan will find a different principle applies when Obama’s health care subsidies are at stake.

And that's just a short excerpt. If you're into legal, read the whole thing.

Gingrich’s Correct Prediction About Medicare’s Future

On Oct. 24, 1995, Newt Gingrich made an assertion about what would happen to Medicare if its beneficiaries could choose between it and private plans. Medicare is “going to wither on the vine because we think people are voluntarily going to leave it — voluntarily.” Though he later walked this statement back, many observers viewed it as an attack on the program.

In fact, over the nearly two decades since, Mr. Gingrich’s claim has undergone something of a test — and it has largely passed it.

In that time, Medicare beneficiaries have enjoyed various levels of access to private alternatives to traditional Medicare through the Medicare Advantage program and its predecessors. These private Medicare plans must provide at least the same level of benefits as traditional Medicare, though may offer more generous benefits voluntarily. They are subsidized by the federal government, often to the degree that many beneficiaries pay no premium even when receiving more benefits than they would from the traditional program.
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what’s clear is that Medicare Advantage is a strong and growing program, despite recent moderation in government subsidies. As Medicare Advantage grows, traditional Medicare necessarily shrinks and its influence on the American health care system weakens. If the trend continues, policies, including those in the Affordable Care Act, designed to use traditional Medicare as a tool to reshape health care delivery for all Americans may become less potent. Is there a tipping point at which traditional Medicare ceases to matter?

If so, we’re probably not there yet, but we may be moving toward it. Unless things change, the data suggest Mr. Gingrich may have been right in a way: Given a choice between traditional Medicare or more benefits from more highly subsidized private plans, Medicare beneficiaries may well be willing to let the former wither on the vine.

A ONE-SIDED WHITE HOUSE REPORT ON MEDICAID EXPANSION

The new White House report on Medicaid expansion, “Missed Opportunities,” argues that states that decline to expand Medicaid through the Affordable Care Act are sacrificing important benefits.

The report is essentially an advocacy document rather than a neutral analysis of the conflicting considerations facing state governments. This slant is understandable because White House publications are written largely to advance the President’s policy agenda. However, those who are interested simply in understanding the issues in play should be aware of factors pointing many states to the opposite conclusion.

I take no position on whether states should expand Medicaid. Decision-makers in different states can reasonably reach different conclusions based on the state’s specific population needs, subjective value judgments, and budget situation. And states are making a variety of decisions with respect to expansion. One unfortunate undercurrent in the White House document is the implication that states that decline to expand Medicaid are acting against their citizens’ best interests. State government leaders who oppose Medicaid expansion, and President Obama as he supports it, should all be extended the presumption that they are pursuing what they believe to be the best policy. . . 

Casting aspersions in one of the few things the president does well. Read the whole thing.