Undue Burden

5CA holds what should be obvious – Mississippi’s most recent anti-abortion statutes violate a woman’s reproductive rights:

Mississippi’s last abortion clinic won a major victory at the conservative 5th Circuit of Appeals, which said a law intended to make the state “abortion-free” and close the clinic was unconstitutional.

“Pre-viability, a woman has the constitutional right to end her pregnancy by abortion,” wrote E. Grady Jolly, a Reagan appointee, for the panel. The law requiring that abortion providers have admitting privileges to local hospitals, which Mississippi’s Jackson Women’s Health Organization had been unable to obtain, “effectively extinguishes that right within Mississippi’s borders.”

The judges’ hands were tied by the fact that a separate 5th Circuit panel had already said an identical law in Texas, where it has closed about half of the state’s abortion clinics, was constitutional even if it had no basis in medical necessity. Today’s ruling, which is on the preliminary injunction, says the law is only unconstitutional as it has been applied to the Jackson clinic, citing a principle that states can’t violate their citizen’s rights by claiming they can go out-of-state.

The admitting privileges law was scheduled to take effect in July 2012, but was blocked by a lower court, which said if the state got its way, the result would be “a patchwork system where constitutional rights are available in some states but not in others.”

Whether Anthony Kennedy is willing to ascribe any content to the “undue burden” standard, even in such an extreme case, is unclear.

Meanwhile, America’s most trusted news source has a sneak preview of Mississippi’s next legislative session.

Unlike Its Opponents, People Who Supported the ACA Wanted it to Work

Josh Blackman offers another attempt to argue that Congress actually intended the federal exchanges the ACA established not to work. Inevitably, it’s transparently wrong because like many ideological opponents of the ACA he appears to be incapable of understanding what proponents of the ACA were actually trying to accomplish.

Any such argument, as we know, starts with the nearly insurmountable hurdle of ascribing an intent to the drafters and enacters of the ACA that (aside from some stray comments from one consultant that 1)do not suggest that a denial of subsidies would be permanent and 2)are inconsistent with what the consultant assumed in 2010 and explicitly argues in 2014) is wholly rejected by said drafters and enacters and is held only by the most fanatical opponents of the ACA. Blackman, needless to say, cannot adduce any actual supporter of the ACA who agrees with his interpretation, a rather serious problem since the bill was written and enacted by supporters, not opponents. Instead, he tries to infer an intent to create federal exchanges that wouldn’t work from the structure of the Medicaid expansion:

As further evidence of legislators’ state of mind, we could take the fact that the Affordable Care Act’s Medicaid expansion worked exactly on this theory of carrots and sticks. Uncooperative states, and their residents, would be punished.

In 2010, Arizona inquired about what would happen if it declined to expand its Medicaid coverage under Obamacare. The federal government replied that it would eliminate its contribution to the state’s Medicaid budget entirely. The Department of Health and Human Services sent Arizona Governor Jan Brewer an ominous and pointed letter: “In order to retain the current level of existing funding, the state would need to comply with the new conditions under the ACA.” This observation was followed by a stark warning: “We want you to be aware that it appears that your request…would result in a loss of [all] Medicaid funding for Arizona.”

This argument fails on multiple levels:

• It completely fails to understand the point of cooperative federalism.  The legislators who voted for the ACA were not trying to “punish” states or their citizens — they were trying to offer a good enough deal that states would agree to expand Medicaid coverage.  The didn’t think that the citizens of Arizona would be punished; they assumed Arizona would take the money, just like it takes the money to establish a state drinking age.
• The original structure of the Medicaid expansion also makes clear how nonsensical the Halbig interpretation of the ACA is.  Asserting that the ACA intended the federal exchanges not to work suggests that the legislators assumed that the vast majority of states would establish exchanges and were surprised by the scope of the opposition at the state level.  But the fact that Congress made all Medicaid funding contingent on accepting the expansion indicates that Congress fully anticipated substantial state resistance.  If Congress didn’t think that offering a huge pool of money funding more than 90% of the expansion was sufficient incentive for some states to take it, why on earth would it think that the mild disincentives inherent to not setting up state exchanges (citizens do not get subsidies…but are also therefore exempt from the mandate) would be sufficient?  The answer, of course, is that it didn’t.  It assumed that some states would be unwilling and/or unable to establish exchanges.
• Which brings is to the final crucial point: Blackman cannot explain why Congress bothered to authorize the federal government to establish the state exchanges at all.  If the federal backstop was absent, then the Blackman/Halbig interpretation would be plausible.  But Congress did create a backstop, because it assumed that some states wouldn’t establish exchanges, but wanted the exchanges to be operative in all 50 states.  Blackman is asking us to believe that Congress correctly anticipated that some states wouldn’t establish exchanges, created a mechanism that would correct this problem, but then intended for the solution not to work.  To restate this argument is to refute it; it’s an absurd reading of the statute.  Which is why (one very ambuguous and repudiated coming and going exception aside) no supporter of the statute agrees with it.

I’ve said it before and I’ll probably have to say it again: reading people who are fundamentally hostile to the ACA in principle trying to explain its objectives is like watching an elephant trying to play a toy piano.  Projection is a poor means to determine legislative intent.

…see also.  And definitely read Beutler on Halbig troofers.

Today’s Frivolous Anti-ACA Lawsuit

One of the endless series of ad hoc legal challenges to the ACA is an argument (touted by, among others, syndicated columnist William F. George) that the ACA is unconstitutional because it violated the Origination Clause (which requires “Bills for raising Revenue” to originate in the House.) A unanimous D.C. Circuit panel has properly rejected this argument:

The purposive approach embodied in Supreme Court precedent necessarily leads to the conclusion that Section 5000A of the Affordable Care Act is not a “Bill[] for raising Revenue” under the Origination Clause. The Supreme Court’s repeated focus on the statutory provision’s “object,” and “primary purpose,” makes clear, contrary to Sissel’s position, that the purpose of a bill is critical to the Origination Clause inquiry. And after the Supreme Court’s decision in NFIB, it is beyond dispute that the paramount aim of the Affordable Care Act is “to increase the number of Americans covered by health insurance and decrease the cost of health care,” not to raise revenue by means of the shared responsibility payment.

Will Executions By Torture Threaten the Death Penalty?

You’ve probably heard about the latest horribly botched execution:

Wood’s execution dragged on for so long that at the midpoint, his lawyers filed an emergency appeal to stop the procedure and called on Justice Anthony M. Kennedy to intervene. Wood died before the federal court could respond, and Kennedy turned down the lawyers’ request. After Wood was pronounced dead, the Arizona Supreme Court ordered that the state “preserve any drug labels and unused drugs pertaining to the execution of Mr. Wood.”

The two-hour execution was just the latest debacle made possible by an ever more familiar combination of state secrecy, untried protocols being tested for the first time on live human beings, and a judicial system that can’t quite make up its mind about how much gasping and coughing is reasonable in a state-sanctioned killing. The new wrinkle is that this time we must endure the spectacle of witnesses to the execution fighting over how much suffering they saw.

Another exhibit Kozinski can use in his campaign to bring back the firing squad.

The optimistic take is that given the choice between a more visibly brutal death penalty and abolition, the public will choose the latter. I’m not sure. Most states have either abolished the death penalty or almost never use it. In the relatively small minority of states that are responsible for the vast majority of executions…I’m not sure that explicit brutality or botched executions will matter. I hope I’m wrong.

Virginia Is For Lovers

Another domino falls.