hunter of justice

Stupak amendment would result in massive cut in abortion access

The Stupak amendment to the House health reform bill, adopted by a 240 to 194 vote, does not explicitly bar any insurance plan from covering abortion, yet it achieves that effect by barring any plan that accepts federal subsidy dollars at all from including abortion coverage from the insurance exchange through which plans will be sold.  Few, if any, insurance plans will have a body of enrollees that does not include at least some receiving premium subsidies. The abortion access issue had been building for the last several weeks, and finally exploded as a floor vote became imminent. (See my first post from July here; additional background here, here, and here.)  Following is an analysis of the final amendment by Jessica Arons, from Wonk Room:

Here’s what the Stupak Amendment does:

1. It effectively bans coverage for most abortions from all public and private health plans in the Exchange: In addition to prohibiting direct government funding for abortion, it also prohibits public money from being spent on any plan that covers abortion even if paid for entirely with private premiums. Therefore, no plan that covers abortion services can operate in the Exchange unless its subscribers can afford to pay 100% of their premiums with no assistance from government “affordability credits.” As the vast majority of Americans in the Exchange will need to use some of these credits, it is highly unlikely any plan will want to offer abortion coverage (unless they decide to use it as a convenient proxy to discriminate against low- and moderate-income Americans who tend to have more health care needs and incur higher costs).

2. It includes only extremely narrow exceptions: Plans in the Exchange can only cover abortions in the case of rape or incest or “where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death.” Given insurance companies’ dexterity in denying claims, we can predict what they’ll do with that language. Cases that are excluded: where the health but not the life of the woman is threatened by the pregnancy, severe fetal abnormalities, mental illness or anguish that will lead to suicide or self-harm, and the numerous other reasons women need to have an abortion.

3. It allows for a useless abortion “rider”: Stupak and his allies claim his Amendment doesn’t ban abortion from the Exchange because it allows plans to offer and women to purchase extra, stand-alone insurance known as a rider to cover abortion services. Hopefully the irony of this is immediately apparent: Stupak wants women to plan for a completely unexpected event.

4. It allows for discrimination against abortion providers: Previously, the health care bill included an evenhanded provision that prohibited discrimination against any health care provider or facility “because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.” Now, it only protects those who are unwilling to provide such services.

One in three women will have an abortion in their lifetime. Eighty-seven percent of employer plans offer abortion coverage. None of that will matter if the Senate takes its cues from the House. In every other way, this bill will expand access to health care. But for millions of women, they are about to lose coverage they currently have and often need.

ENDA in the Senate: how the hearing went

Bottom line: the hearing on S. 1584, the Senate side version of ENDA, was smooth sailing. Both this and the House committee hearing were probably more theater than anything else.  Apparently, theater on this topic is not terribly appealing to members of Congress, since only three Senators (committee chair Harkin plus lead sponsor Merkley and Franken) stayed for the full hearing; only one additional Senator (Bennet) attended for part of it. On the House side, most Dems and even a couple of Republicans put in an appearance. Attendance is irrelevant to the end result, though - the hearing stage is now completed, and the committees in both chambers can move to mark-up, hopefully this month.

One difference in the dynamic of the hearing was that the attention paid to the two Republican witnesses - a management side lawyer and a religious broadcaster - was the opposite of what happened in the House hearing.  There, committee members seemed interested only in particular points of employment law that arguably could be clarified.  In the Senate, those issues were largely ignored, and instead the religious broadcaster drew a number of questions.

You can watch the hearing and read copies of the testimony here.

New proposal attempts to thread abortion needle in health reform

Anti-abortion House Dems, whose number is large enough to defeat health reform, have balked at the compromise worked out earlier to avoid the use of federal funds for abortion and are insisting on additional conditions. From the NY Times:

Under the House bill, health plans are neither required nor forbidden to cover abortions. Under [Rep. Brad] Ellsworth’s proposal, if the public plan decides to cover abortion, it would have to hire private contractors to handle money that might be used for that purpose.

Supporters of abortion rights, like the Planned Parenthood Federation of America, said the proposed restrictions went too far. Laurie Rubiner, vice president of Planned Parenthood, said Mr. Ellsworth’s proposal would “tip the balance away from women’s access to reproductive health care. Abortion should not be treated any differently from any other medical benefit or procedure,” Ms. Rubiner said. “It is our hope and expectation that the secretary would decide to include coverage of abortion in the public option.” [The bill calls for the Secretary of HHS to decide the criteria for benefits.]

On the other hand, Liz Farrar, a spokeswoman for Mr. Ellsworth, said, “We think the public option will become the pro-life option.”

The bill stipulates that in every part of the country, there must be at least one insurance plan that provides coverage of abortions and at least one that does not.

Douglas D. Johnson, legislative director of the National Right to Life Committee, said Mr. Ellsworth’s proposal was “a phony compromise. It serves no purpose except to assist Speaker Pelosi in peeling votes away from an amendment that would flatly prohibit the public plan from paying for elective abortions,” Mr. Johnson said. That amendment was offered by Representative Bart Stupak, Democrat of Michigan. Mr. Johnson said Mr. Ellsworth’s proposal authorized “a money-laundering scheme under which the health secretary would hire an agent to pay abortion providers.”

The Congressional Research Service said recently that money received by the government insurance plan, including premiums, “may be classified as federal funds or government funds.” But in a memorandum analyzing the House bill, Prof. Laurence H. Tribe of Harvard took issue with that conclusion, which he described as “an exercise in sophistry.” Under the House bill, he said, abortion services could be financed “only by special private premiums that are segregated” from other money. Thus, he concluded, the House bill, “as it currently stands, does not authorize governmental funding of abortion.”

ENDA chugging along

Both publicly and behind the scenes, things are moving on ENDA.

Tomorrow at 10 a.m., the Senate Health Education Labor and Pensions (HELP) Committee will conduct a hearing on this year's (trans inclusive) version of ENDA. You can watch it here; Beltway denizens can show up in person at the Dirksen Senate Office Building, Room 430.

The Republican witnesses in the Senate will be the same two who testified on the House side: management side lawyer Camille Olson and Religious Broadcasters Association official Craig Parshall.  Representing the Obama administration will be Tom Perez, the head of DoJ's Civil Rights Division.  Other Dem witnesses will be Illinois Attorney General Lisa Madigan, University of Colorado Law Professor Helen Norton, a Nike Corporation respresentative, and a Massachusetts police officer.

Behind the scenes, House members are hoping to schedule a mark-up (a session during which Education and Labor Committee members will offer amendments to the bill) soon. At that point, there will be a "chairman's mark" that will include any modifications that the sponsors wish to make before the bill moves to the House floor.  The chairman's mark effectively substitutes for the version of the bill as originally introduced. The floor vote on ENDA in the House will probably occur about a week after the mark-up.

Split on abortion threatens health reform

CQ reports on an abortion impasse in the House that will hit the wall when the health reform bill goes to the floor. Anti-choice Dems are insisting that there be no allowance of abortion services in any plan to be offered in insurance exchanges, a position that would effectively preclude coverage of abortion for millions of women.

A showdown is shaping up among Democrats as abortion foes press House leaders to change the health care bill to explicitly ban abortion funding, or at least permit a floor vote on the issue. The effort led by Bart Stupak of Michigan and Daniel Lipinski of Illinois could have far-reaching implications for the fate of the legislation when the House takes up the health care overhaul late next week.

Stupak, who has been at the forefront of a group of several dozen anti-abortion Democratic dissidents, said he would likely vote against a rule providing for floor action on the health care overhaul bill if party leaders do not come his way. “I’ve got to have somewhere to responsibly express my opinion and that of my district,” Stupak said.

House Majority Leader Steny H. Hoyer of Maryland points to the abortion disagreement as perhaps the most important unresolved issue as he prepares to move the measure to the floor. Stupak said he would look for ways to work with Republicans, if necessary, and moderate senators including Bob Casey of Pennsylvania to override the decision by House Speaker Nancy Pelosi , D-Calif., to omit an outright ban on abortion funding from the legislation she unveiled Thursday.

The anti-abortion Democrats want to win language that would essentially extend the existing abortion funding ban known as the “Hyde amendment” to the new and expanded programs that would be created by the health care overhaul. Mindful that abortion is a politically divisive issue within her caucus, Pelosi and her leadership team have sought to promote a compromise, but the anti-abortion Democrats consider it to be too weak.

The compromise language is similar to current restrictions on the use of federal Medicaid funds. The provision would ensure that federal dollars are kept in separate accounts when they flow into health insurance plans, and that federal accounts could not be used to fund an abortion.

UPDATE: Hate crimes bill passes Senate, heads to POTUS

The final Senate vote on the hate crimes bill is expected to occur this afternoon. The hate crimes language is a provision of the Department of Defense Authorization Conference Report. A cloture petition was filed last night, and the vote on cloture will be this morning. It is likely that debate on the bill will follow the cloture vote, and the final Senate vote on adoption of the Report will occur in the afternoon.

UPDATE: The Senate passed the bill late this afternoon, including the hate crimes provision, by a vote of 68 to 29.  It now goes to the White House for the President's signature.  It is the first federal law to explicitly prohibit discrimination based on sexual orientation or gender identity.

According to HRC's summary:

Under the legislation, federal prosecutors could step in to try violent
hate-crime cases if local authorities cannot or will not secure an
appropriate conviction. It also opens up federal funding for law enforcement
to handle the typically high cost of investigation and judicial proceedings
in such cases, and would make grants available for training and prevention
programs at the local level.

Wondering what happened to the hate crimes bill?

According to an update from HRC Backstory, it could be law as early as next week -

Earlier this evening [Oct. 6], the U.S. House defeated a Republican motion to instruct conferees seeking to strip the hate crimes provision from the Defense Authorization bill to which it is attached.  The vote was 178 to 234.  You may recall that in July, the Senate voted 63 to 28 to add the provisions of the Matthew Shepard Hate Crimes Prevention Act to the defense bill.  Nearly identical legislation passed the House earlier this year on a bipartisan vote of 249 to 175.  Conferees are expected to retain the hate crimes provisions in the final version of the conference report and today’s vote is a strong show of support for the hate crimes language.

So what’s next?  House Conferees have been appointed and a vote on the final conference report in the House is expected on Thursday.  The Senate action on the conference report should follow next week and then the bill will go to President Obama for his signature.

Abortion and health reform - state of play

The following is a chart by Jessica Arons at the Center for American Progress, published at RH reality check, which updates my earlier post describing the Capps Amendment by adding a comparison to the Senate Finance Committee bill: 

Current law	Capps Amendment to House health care reform bill	Senate health care reform bill
The Hyde Amendment
The Hyde Amendment prohibits federal Medicaid and Medicare money from being spent on most types of abortion, including pregnancies that threaten the woman’s health or involve fetal anomalies. Federal money can only be used to pay for an abortion when the pregnancy threatens the life of the woman or results from rape or incest.	The Hyde Amendment restrictions would apply to all insurance plans that participate in the health insurance exchange, whether those plans are operated by private insurers or by the government’s “public option.” In other words, no federal funding, including affordability credits or other subsidies, would be used to pay for abortions beyond what is currently allowed. Private premiums would be segregated from public funds and only the private premiums could pay for abortion services beyond those allowed by the Hyde Amendment.	The Hyde Amendment restrictions would apply to all insurance plans that participate in the health insurance exchange, whether those plans are operated by private insurers or member-run co-ops. In other words, no federal funding, including affordability credits or other subsidies, would be used to pay for abortions beyond what is currently allowed. Private premiums would be segregated from public funds and only private premiums could pay for abortion services beyond those allowed by the Hyde Amendment.
Other government programs
Laws similar to the Hyde Amendment that restrict coverage of abortion services also apply to military employees and their dependents, federal employee health plans, members of the Peace Corps, women in federal prisons and detention centers, and Native Americans who receive health care through the Indian Health Services.	Current restrictions on federal spending for abortion services would not change.	Current restrictions on federal spending for abortion services would not change.
States
States have the option to use their own money to pay for abortion services beyond what is permitted under the Hyde Amendment, and 17 states currently do so. Federal money subsidizes these state Medicaid programs even though they cover abortion.	Federal money would subsidize plans that cover abortion—just like they currently do for state Medicaid plans and employer plans—but no public money would be used to pay for abortion services not allowed by the Hyde Amendment. Government money would only be used to help pay for the other medical services covered by those plans.	Federal money would subsidize plans that cover abortion—just like they currently do for state Medicaid plans and employer plans—but no public money would be used to pay for abortion services not allowed by the Hyde Amendment. Government money would only be used to help pay for the other medical services covered by those plans.
Private insurance
Private insurance companies are allowed to decide whether to cover abortion services, and 87 percent of typical employment plans currently provide such coverage. The federal government subsidizes these plans through an employer tax credit, even if the plans include abortion.	Each plan in the exchange could decide whether to cover abortion services beyond those allowed by the Hyde Amendment, provided that at least one plan in each market area offers such services and one plan does not. This provision goes well beyond current law to guarantee that consumers have the option to purchase a plan that suits their medical needs and their values. No abortion services—even those allowed by the Hyde Amendment for cases that threaten the woman’s life or result from rape or incest—can be mandated as part of a minimum benefits package.	Each plan in the exchange could decide whether to cover abortion services beyond those allowed by the Hyde Amendment, provided that at least one plan in each market area offers such services and one plan does not. This provision goes well beyond current law to guarantee that consumers have the option to purchase a plan that suits their medical needs and their values. No abortion services—even those allowed by the Hyde Amendment for cases that threaten the woman’s life or result from rape or incest—can be mandated as part of a minimum benefits package.

The disparate impact non-issue in ENDA

By Guest Contributor Harper Jean Tobin

At last week’s House Education and Labor Committee hearing on ENDA, witness Camille Olsen, an attorney who represents employers, raised several questions about what she characterized as ambiguities in the bill. Among the points Olson raised was the question of “disparate impact” claims under ENDA. Olson’s technical arguments were potentially confusing even for an attorney like myself, so it’s worth trying to explain them in plain English.

Under existing employment discrimination laws, there are two types of unlawful discrimination claims. “Disparate treatment” cases are where there is evidence of intentional discrimination by the employer. Vandy Beth Glenn suffered a classic case of disparate treatment when her boss fired her for the stated reason that she was transitioning from male to female. The principle of “disparate impact” is different: an employer may not take actions that have the overall effect of excluding a group of people, unless there is a sufficient reason to do so.  For example, height and weight requirements have a disparate impact on women because (even though some women would meet them) they tend, on average, to exclude more women than men. Unless an employer can demonstrate a sound reason for using these requirements, they will be deemed discriminatory.

The disparate impact approach has been a powerful tool for promoting the inclusion of women and minority groups in the workplace. Some conservatives, however, oppose it because they view it as a form of “reverse discrimination.” Justice Antonin Scalia even speculated earlier this year that disparate impact laws could be unconstitutional. Because it has become something of a political football, disparate impact would be a sticking point under any new anti-discrimination law. But as Rep. Robert Andrews pointed out at the hearing, it would be hard to think of a situation where a disparate impact claim could be brought under ENDA. (No short men or tall women? No Streisand fans need apply?)  So, to avoid distracting debates on the subject, ENDA states that “Only disparate treatment claims may be brought under this Act.” That seems plenty clear to us. But Olson suggested that ENDA needs, well, added redundancy: to provide in so many words that disparate impact claims are barred, and that “disparate impact” means that same thing it does under every other law. Of course, as Acting EEOC Chair Stuart Ishimaru stated at the hearing, that’s really not needed: read in context, the bill is already crystal clear.

Like many of the other questions that have been raised about ENDA, this one is really a non-issue. We can expect to see more such non-issues raised in the weeks ahead.

-- Cross-posted at the Transgender Equality blog

ENDA - how the hearing went

To cut to the chase: yesterday's hearing before the House Education and Labor Committee probably could not have gone better for supporters of ENDA. You can watch it and access copies of all the written testimony at the Committee's website. Special cheers to witnesses Vandy Beth Glenn, Bill Eskridge and Brad Sears.

The Committee staff did a superb job of preparing the Democratic members for the discussion. There were no fireworks at the hearing, doubtless due in large part to the fact that only a handful of Republican members attended, at least one of whom is an ENDA co-sponsor.

A few comments on the two Republican witnesses:

> Virtually all of the discussion on possible problems with the bill centered on the testimony given by Camille Olson,a management side attorney with Seyfarth Shaw and a member of the policy subcommittee on equal employment opportunity of the Chamber of Commerce. In other words, she was representing employers. Her testimony was neither in support of or in opposition to ENDA, but was focused on raising potential objections to specific provisions in the bill. The main point of her testimony was that there is "ambiguity and uncertainty" in the bill at multiple points. Her issues included: whether ENDA will duplicate Title VII's cause of action for sex stereotyping, what changes employers will have to make regarding restroom use policies in order to avoid discriminating based on gender identity, whether ENDA will generate more attorneys fees awards for plaintiffs than Title VII does, and whether the explicit limitation of ENDA to disparate treatment claims really means that disparate impact claims are excluded. Acting EEOC Chair Stuart Ishimaru, testifying on behalf of the Obama administration, answered the last point by saying that, yes, there really is an exclusion, and I would direct the EEOC to not pursue any claims brought to it which fall into the category of disparate impact theories. But the other points generated a fair amount of discussion, and may show up in later phases of the legislative consideration of ENDA.

> The second witness sponsored by the R members was Craig Parshall, general counsel for the National Religious Broadcasters. He and Olson pretty much embodied the two wings of the Republican Party - the religious/social conservative wing and the business wing. By contrast to Olson, Parshall's testimony did not get much take-up or generate much discussion. This may be a result of so few Rs being there to pick up those themes. The tone of the committee and floor debates could well be very different from the tone of the hearing.  But it also struck me as perhaps auguring a new general attitude toward ENDA, of - more or less - morality, schmorality, let's keep our eyes on what's really important: insuring that this law doesn't cost employers too much.

ENDA cometh

The campaign to enact ENDA will begin anew at 10 a.m. today with a hearing before the House Committee on Education and Labor. The hearing will be in Room 2175 of the Rayburn House Office Building. If you inhabit the DC environs, get there early - there will probably be heavy demand for seats.  If that's not an option, the webcast should be available here, or check out Jillian Weiss's liveblogging. Witnesses will include Representatives Tammy Baldwin and Barney Frank; EEOC Acting Chair Stuart Ishimaru; Yale Law Professor Bill Eskridge; and Williams Institute Executive Director Brad Sears.

This year's version of ENDA is HR 3017. It prohibits gender identity as well as sexual orientation as a basis of discrimination. In other respects, it is essentially the same as the version of ENDA that passed the House two years ago (HR 3685).

No bill is perfect, and a number of problematic exceptions have been built into this legislation over the years in the effort to ensure its passage. Section 4(g) expressly limits ENDA's coverage to disparate treatment (facially discriminatory practices) and excludes disparate impact claims (claims based on facially neutral practices which have a discriminatory effect that disadvantages lgbt workers). Section 8(b) provides that ENDA shall not be construed to require any employer to give unmarried couples the same benefits offered to married couples; and Section 8(c) effectively limits the term "married" to heterosexual couples. Section 6 provides that any religious organization that is allowed to discriminate based on religion under Title VII can also discriminate based on sexual orientation or gender identity. 

With regard to dress and grooming codes, ENDA would allow employees to abide by the rules for whichever sex aligns with their gender identity [Section 8(a)5)].  In other words, a transwoman could comply with the dress or grooming code (if any) that applies to all women employees. The problems will come in cases like Jesperson v. Harrah's, 444 F.3d 1104 (9th Cir. 2006) (en banc), which upheld the firing of a (non trans-) woman who did not want to wear make-up at work. The Ninth Circuit found that the make-up requirement was reasonable, and that the requirements imposed on men and women were comparable (clean shaven rule for men, make-up rule for women). Although ENDA forbids discrimination based on "gender-related...appearance," the dress and grooming code carve-out would leave the holding of Jesperson undisturbed.  

Will ENDA finally pass? That question breaks down into two parts: will it pass the House, and will it pass the Senate?  Since essentially the same bill but for the inclusion of gender identity passed the (then more conservative) House two years ago, the outcome in the House will almost certainly turn entirely on the gender identity issue.

When it goes go to the House floor, the Republicans will probably have the opportunity to offer only one amendment (that's how the majority party runs things in the H of R). There is no way to predict whether the Rs will fashion their one shot at killing or crippling the bill around gender identity or around some other issue (like marriage or religion). If the Dems hold it together, the Rs' effort - whatever it is - will fall short. I'm betting that the good guys will win and that ENDA will pass the House intact (although don't press me for anything more than a gut instinct in support of that).

Then it's on to the Senate, where everything is iffier. No version of the bill has been put to a vote in that chamber for more than 10 years (long before gender identity language).  I doubt that there is yet a clear read on its chances of going through with gender identity protection intact. Given everything else the Senate has to deal with this fall, my main prediction is that ENDA won't come up for a full Senate vote until some time in 2010.

Whatever lies ahead, the action starts today.

Women in Congress bring home more bacon

As reported in Politico, a new study by researchers at Stanford and the University of Chicago have found that women in Congress do a better job than their male counterparts of bringing home money for their districts -

The study, which examined the performance of House members between 1984 and 2004, found that women delivered roughly 9 percent more discretionary spending for their districts than men.

For instance, during Rep. Judy Biggert’s first two-year term, Illinois’s 13th District received $382 million in federal funds, $70 million more than it received during the final term of her predecessor, Rep. Harris Fawell. Rep. Zoe Lofgren delivered around $859 million to her district, compared with $541 million brought in by her predecessor, Rep. Don Edwards, during his final term, the researchers said. And during then-Rep. Connie Morella’s first term, Maryland’s 8th District received $780 million, $183 million more than predecessor Rep. Michael Barnes brought in during his final term, they said.

While there are obviously variables beyond gender — seniority, party affiliation, majority/minority status and the differing priorities of a freshman and a veteran lawmaker — the researchers say they’ve accounted for those in making their male-to-female comparisons.

“You could easily make the argument that a politician who is on his way out, or someone who is sitting on a really powerful committee, is in a different position than someone just coming into office,” said Stanford researcher Sarah Anzia. “Not every example will cover every alternative explanation, but we control for all of those factors in the study.”

The researchers also found that women introduced more legislation than men who served in their same districts, often hitting the ground running in their first terms. “We find that, on average, women sponsor about three bills more per Congress per term than their male counterparts,” said Anzia. “They co-sponsor more bills than other members, and they also obtain more co-sponsors for their own bills.” 

...Researchers say the small number of female members may have something to do with their effectiveness. Women who run and win are likely the most politically ambitious and talented of their pool, having potentially overcome hurdles including voter bias and self-doubt about their ability to win. Female candidates also tend to attract more challengers. Politically eligible women tend to doubt their ability to get elected and raise money more than men do, multiple studies have indicated.

Once women get to Capitol Hill, those hurdles may drive them to perform better, on average, than male counterparts who have faced a less contentious road. “Research shows that even though women have similar success rates in primaries and elections as men, they are likely to face more challengers,” said Hartwick College political science department chairwoman Laurel Elder. “The results might be the same, but they might have to work harder to get those same results.”

Justice Sotomayor: The reward for suffering fools patiently

The core point in the debate over soon-to-be Justice Sotomayor's confirmation was whether she is a centrist, as virtually her entire body of opinions indicated, or a leftist, as various right-wing Republicans labored mightily to construct.  The truth, of course, (as with breath mints and candy mints) is that she is both. Why? Because this is what happens when the left wing of the Supreme Court consists of centrists.

My bet is that her career as a justice, at least in the early years but perhaps enduringly, will look a lot like that of Justice Ginsburg.  One senses that Sotomayor has clear and strong progressive beliefs, not from the kind of legal trailblazing that Justice Ginsburg did in the 1970s, but from her own personal story and affiliations.  I suspect that she, like Ginsburg, trimmed those sails during the years that she served on the Court of Appeals, given that it would have been impossible for her not to know that if a Democratic president got to appoint the first Hispanic justice, she had the inside track for the nomination. Both women had impeccable precedent-following, fact-limited approaches to appellate judging.  As a justice, Ginsburg has been less a trailblazer than a thoroughly dependable progressive vote, far beyond just women's issues, and one of this Court's anchors of humane jurisprudence, all of which is not bad as legacies go.  But I hope that Sotomayor will be more inclined to swing for the fences now and then.

Sotomayor's confirmation process produced little of any real interest or substance. It did illustrate, however, the idiocy that nominees have to endure.  In honor of her having survived it, therefore, I offer my top 10 list of moments when not laughing, crying or choking must have been tough:

(10) Sen. Coburn: Do you believe that our federal courts enable the federal government to exceed its intended boundaries by interpreting Article I's commerce clause and necessary and proper clause to delegate virtual unlimited authority to the federal government?

(9) Sen. Graham: What is identity politics? ... Do you embrace identity politics?

(8) Sen. Graham: What did September the 11th, 2001, mean to you?

(7) Sen. Coburn: Do you not consider it ironic that the majority of the debate about the 14th Amendment in this country was about the taking of guns from freed slaves? Is that not ironic that we now have some kind of conflict that we're going to say that the whole reason in the debate about the 14th Amendment originated from states taking away the rights of people's fundamental right to defend themselves? Is that not an irony to you?

(6) Sen. Sessions: Aren't you saying there that you expect your background and -- and heritage to influence your decision-making?

(5) Sen.Graham: Now, legal realism, are you familiar with that term?

(4) Sen. Grassley: Do you find it unreasonable that the EPA was willing to allow money to be spent in a cost-effective manner by not requiring billions of additional dollars to be spent to save a minimal number of additional fish?

(3) Sen. Graham: From what you read and what you understand about the enemy that this country faces, do you believe there are people out there right now plotting our destruction?

(2) Sen. Kyl: You've always been able to find a legal basis for every decision that you've rendered as a judge?

(1) Sen. Graham: Do you think you have a temperament problem?

Health reform hits abortion wall

With congressional committees having entered the phase of proposing specific legislative language for health reform, an old problem has resurfaced: health reform and abortion rights are on a collision course.  I refer to it as an old problem because it is one of the issues I dealt with when serving in the Clinton administration during the last effort to achieve universal coverage. We struggled then to devise mechanisms that would preserve choices for both sides. The threat to the overall reform effort never became visible, though, because reform crashed for other reasons before public attention focused on that level of detail.  The good news this year is that we seem to be far enough along that abortion has become a meaningful concern.

There are three contexts in which inclusion of abortion is relevant: the structure of a public option plan, the basic benefits package that all private group health insurance plans would have to include, and the use of public subsidies to defray premium costs for low-wage workers and others who need assistance. In each case, conservatives frame the question, as the NY Times article did this morning, as the use of public funds to finance programs that include access to abortion. 

That framing hides some harsh realities.  One is that if a basic benefits package barred coverage for abortion, women who now have coverage through their workplace (or other) health insurance would lose it. That would amount to a massive cutback in access to choice for tens of millions of women. Here's the way the issue should be framed, straight out of my notes from 1993:

• It is essential to maintain the existing coverage and access to services that women now have under private health insurance plans; and
• The basic benefit package design must include all pregnancy-related services that are medically necessary and/or appropriate.

You can expect that most reporting of this debate will treat it as one more example of how the crazy wild card issue of abortion screws up rational political deliberation.  It goes deeper than that, though. The abortion problem in health reform exemplifies the way that sexuality-related questions privatize our political discourse. And, like the Hyde Amendment with which it resonates, it's a morality debate that is likely to get resolved by a compromise deal cut on the backs of the poor - specifically, inscribed on the bodies of poor women. No public funds for abortion involves a tiny number of dollars (the 1993 estimate was that abortion services accounted for 0.3 per cent of the average insurance premium), but the amount looms large for the individual woman who needs it.

UPDATE - Senate adopts hate crimes language, which leads us to ... fighter jets

UPDATE July 21: The Senate voted to drop the funding for F-22s from the bill. The legislation will now go to conference committee. If the conferees strip out the F-22 funds that are part of the House version and keep the addition of the hate crimes language, as seems likely. there will be clear skies for the bill to land on POTUS's desk and be signed.

+++++++++

UPDATE: By a 63-28 vote, the Senate invoked cloture, then voted to add the text of S 909 to the Defense Authorization bill. The next series of bumps will arise if $1.75 billion in funding for F-22s is not dropped from the bill. President Obama has declared that he will veto the bill if it includes "wasteful spending," which seems to be code for no more F22s. Even if there is a veto, however, advocates remain confident that the hate crimes language will eventually make it through.  More background here.

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Senator Leahy has just introduced S 909 - the Mathew Shepard hate crimes bill - as an amendment to the Defense Authorization bill. As is customary in the Senate, sporadic debate will occur until a vote is held on the cloture petition, which - if it secures 60 votes in support - will set an end point (a maximum of 30 hours of debate) to the debate on the amendment. The cloture vote could happen as early as tomorrow. The Leadership Conference on Civil Rights is predicting that the vote on the substance will occur on Friday.

The same bill passed the House in April by a 249 to 175 vote (HR 1913).