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“Wright” and Wrong According to Justice Alito.

Posted on | November 21, 2022 | 2 Comments

Mike Magee

Justice Samuel Alito surfaced this past week once again around issues of judicial independence and his network of friends. Late last week, Rev. Rob Schenck, who for years led a shadowy anti-abortion movement in Washington, DC, “Faith and Action,” had a serious change of heart. He reported that the leakage of this year’s Dobb’s decision (which Alito wrote) was part of a pattern of transgressions dating back more than a decade.

Now an all-in whistle-blower, Schenck reported that “Sam” (as he referred to the Justice) and wife Martha-Ann, were “besties” with his major donor, Ohio real estate moguls Donald and Gayle Wright. (Also on the private social list in Wright e-mails were “CT” and wife Ginny). Their friendship had been cemented at weekend hunting visits to the Wright’s Jackson Hole, WY, retreat. At a private dinner with the Alito’s in June, 2014, Schenck said that the Justice tipped the Wrights off regarding the future decision (not yet announced) of the Hobby Lobby case. This allowed conservatives to fully prepare for the public backlash certain to follow a decision in their favor.

One response to the decision came from the 55,000 gynecologists strong American Congress of Obstetricians and Gynecologists(ACOG) which rang the now current themes of women’s autonomy and enfranchised citizenship, stating, “a woman’s boss has no role to play in her personal health care decisions…The value of family planning, including contraception, is clear. It allows women to time and space their pregnancies, leading to more optimal health outcomes for mother and for baby. And it helps to prevent unintended pregnancy; in America, nearly one half of all pregnancies are unintended.”

In that 5-4 decision in favor of Evangelical Christian purveyor of all things crafty, Hobby Lobby, corporate entities “gained a conscience”, just like individuals, and the right to pick and choose from the menu of 20 forms of contraception required under the Affordable Care Act. Hobby Lobby chose to delete 2 morning after pills and 2 intra-uterine devices (IUD’d) they considered to be abortion inducers.

As important, that early success provided “proof of concept” that intense socialization with Justices and their spouses, through non-profit intermediaries like Pat Robertson’s American Center for Law & Justice, the Supreme Court Historical Society, and “Faith and Action”, could move decisions in conservatives favor, and provide early intelligence to manage political and public repercussions of controversial opinions.

The coalitions built around the “Hobby Lobby” victory also reinforced efforts to develop and advance conservative Catholic justices, and (with Obama nominations blocked and Trump in office) ultimately reverse Roe v. Wade.

Justice Alito’s reliability has been an anchor during this transition. His May 3, 2022 leak of the future Dobbs decision should be viewed through the lens of the testimony provided by Justices Kavanaugh, Barrett, and Gorsuch, under oath, on the topic during their confirmation hearings. Alito and these co-signers on his recent draft assured that Roe v. Wade and Planned Parenthood v. Casey were different since “[a]bortion destroys . . . potential life” and “none of the other decisions cited by Roe and Casey “involve the critical moral question posed by abortion.” 

Justice Clarence Thomas wasted no time making the unvarnished conservative view at the Court perfectly clear in a concurrence statement , “…in future cases, we should reconsider all of this Court’s substantive due process precedents, including GriswoldLawrence, and Obergefell.” These cases respectively deal with legal contraception, anti-sodomy laws, and same-sex marriage.

The history and performance of these five Justices, their original and current supporters, their documented religious orthodoxy, and the web of conservative schools and think tanks that nurtured their well-entrenched biases all suggest “buyer beware.”

The AMA vs. Dobbs: “Advocacy” or “Action” in a MAGAGA World. Part 2.

Posted on | November 16, 2022 | 2 Comments

Mike Magee

(If you haven’t, read Part 1.)

On November 8, 2022, five days after the 2022 Midterm elections, the AMA raised its voice in opposition to Republican efforts to promote second class citizenship for women by exerting public control over them and their doctors intensely private reproductive decisions. At the same time they sprinkled candidates on both sides of the aisle with AMA PAC money, raising questions whether their love of women includes active engagement or just passive advocacy.

Trump and his now MAGAGA (“Make America Great and Glorious Again”) movement has now returned to center stage. With the help of Senate Majority leader McConnell, Christian Conservatives had packed the Supreme Court with Justices committed to over-turning Roe v. Wade. And they did just that.

On June 24, 2022, a Supreme Court, dominated by five conservative Catholic-born Justices, in what experts declared “a historic and far-reaching decision,” Dobbs v. Jackson Women’s Health Organization, scuttled the half-century old right to abortion law, Roe v. Wade, writing that it had been “egregiously wrong,” “exceptionally weak” and “an abuse of judicial authority.”

Not content to allow the decision to stand alone, in a consenting opinion, Justice Clarence Thomas, a modern day version of Anthony Comstock, suggested that this was just the beginning. The decision, he said, was part of a the “legal rationale” that could allow new challenges to legalized gay marriage, consensual homosexual conduct, and access to contraception.

It only took a few days for these true believers to realize that they had lit a political flame under the Republican party that would be difficult to extinguish. The September, 2021 amicus briefs and Congressional testimony of the AMA were easy enough to ignore. But when Kansans defeated an anti-abortion proposition on August 3, 2022, leading the Kansas For Constitutional Freedom, to call the 59%/41% victory “huge and decisive”, the path toward crushing Republican’s self-declared coming “Red Wave” was clear. Similar state abortion propositions were already cued up in Michigan, Kentucky, and Vermont, and now the successful messaging had been fleshed out ready to be applied to 30 and 60 second Ads.

In the Kansas Ad, the voice over stated “Kansans don’t want another government mandate that puts our personal rights at risk.” In Michigan, a burly, working class, white male declares “Let’s keep the government away from our doctors.” The Kentucky campaign put it this way, “The rights of people to control their own personal, private medical decisions are under attack across the country — it’s no different in Kentucky. … Don’t let politicians restrict your freedom.” And Vermont successfully went after its’ entire electorate with carefully constructed and poll tested messaging that emphasized preservation of enshrined Constitutional rights in a state with an historic commitment to personal freedoms.

But arguably the clearest messaging was constructed by successful Congressional candidate, Marie Gluesenhamp Perez (WA-3) who was running against incumbent Trump election denier, Joe Kent. Owner of a small auto-repair shop in rural Washington, she leaned into abortion when her opponent declared “I 100% support Roe v. Wade being overturned. I would move to have a national ban on abortion.” 

Congresswomen Gluesenkamp Perez’s response, enshrined in a 60-second tour-de-force:

“This is an extremist. Yeah, you know until you’ve been pregnant, you’re just not going to understand how complex pregnancies are, and how much can go wrong. And even if you have been pregnant, you know your sample size is pretty small. I miscarried. And you know what I needed? You know what the treatment for miscarriage is? It’s abortion. You know without treatment I might have not been able to have my son.. We deserve respect and autonomy in making those decisions, and privacy. I mean this is not about the minutia of constitutional law. This is about respecting people’s choices.”

The U.S. Constitution may be a living document, but as we recently witnessed, its capacity for movement is bi-directional. The Dobbs v. Jackson decision shifted our nation into reverse. But in over-reaching, MAGA (now MAGAGA) Republicans triggered and activated the Body Politic – Democracy’s corrective super-power.

From Michigan to Kansas, from Kentucky to Washington and Vermont, outraged citizens found their voices and uncovered messages that worked.

In the process, it proved three important points:

  1. Rights should never be taken for granted. They must be protected at every turn.
  2. Health rights are central to human rights. Autonomy and self-determination are determinative of life, liberty, and the pursuit of happiness.
  3. We are mutually inter-dependent. As FDR said, “Necessitous men are not free men.”  If we wish to reject the “tyranny of the minority,” and rebuild a culture of compassion, understanding and partnership, we must redress the current injustices and begin anew with an equitable, just, and effective national health plan.

The reality is that decisions related to women’s reproductive rights are highly individualized, and remarkably complex. This is why we entrusted them to women themselves and their physicians in secure and confidential settings. Intrusion into this space by government fundamentally compromises women’s overall rights and autonomy, and triggers a broad range of Constitutional health concerns for the general public.

If the goal of the Theocratic Conservative Justices and their political allies was to turn back the clock of time, probe the weaknesses of our checks and balances, and stimulate a deep dive into Constitutional law, Dobbs v. Jackson was an enormous success. On the other hand, if the intent was to ignite a “Red Wave” in the 2022 Midterm Election, it proved a giant negative that will be difficult to escape.

Citizens in every state in the union need to feel the heat of the AMA and its Federation in this ongoing battle. This is the moment to fully engage your power and reach, the time to send messages that are clear and definitive. If you leave your patients in the lurch now, they will neither forgive nor forget in the future.

(Return to Part 1.)

AMA and Dobbs: “Advocacy” vs. “Action” in a MAGAGA World. – Part 1.

Posted on | November 15, 2022 | No Comments

Mike Magee

Should anyone present know of any reason that this couple should not be joined in holy matrimony, speak now or forever hold your peace.”     Book of Common Prayer, Church of England, 1549

Last evening Trump rose from the ashes and declared it was time to “Make America Great and Glorious Again” (MAGAGA).

This past week, five days after the Midterm elections, AMA President, Jack Resnick, Jr., MD, raised his voice from the podium at the AMA Interim Meeting in Hawaii with the AMA’s own version of a call to action: 

“But make no mistake, when politicians insert themselves in our exam rooms to interfere with the patient-physician relationship, when they politicize deeply personal health decisions, or criminalize evidence-based care, we will not back down…I never imagined colleagues would find themselves tracking down hospital attorneys before performing urgent abortions, when minutes count … asking if a 30% chance of maternal death, or impending renal failure, meet the criteria for the state’s exemptions … or whether they must wait a while longer, until their pregnant patient gets even sicker…Enough is enough. We cannot allow physicians or our patients to become pawns in these lies.”

Over a year ago, they had signaled awareness that attacks on Roe v. Wade might fundamentally challenge patient autonomy and the sanctity of the patient-physician relationship. On September 21, 2021, the AMA with 25 other medical organizations filed an amicus brief in opposition to the restrictive Mississippi abortion law, Dobbs v. Jackson Women’s Health Organization.  And on  October 12, 2021, 19 medical societies, with the AMA in the lead, filed  an amicus brief in U.S. v. Texas, the abortion vigilante law signed by Gov. Greg Abbott.

Over the past year, the AMA had ample warning that the situation was spinning out of control. On June 27, 2022, I wrote: “My concern today, despite the strong messaging from Chicago, is that the AMA and its membership have not fully absorbed that this is a ‘mission-critical’ moment in the organization’s history… The strong words, without actions to back them up will permanently seal the AMA’s fate, and challenge Medicine’s status as a ‘profession.’”

I was reacting to the AMA’s statement three days earlier, on release of the Dobbs decision, which labeled the decision “an egregious allowance of government intrusion into the medical examination room, a direct attack on the practice of medicine and the patient-physician relationship…the AMA condemns the high court’s interpretation in this case. We will always have physicians’ backs and defend the practice of medicine, we will fight to protect the patient-physician relationship.”

At the time, I recommended that the AMA mobilize and orchestrate their Federation state and specialty societies to pursue acts of “physician ‘civil disobedience’ where appropriate to protect the health and well being of all women, regardless of age, race, sexual identity, religion, or economic status.”

This warning came six months after I highlighted Charles Dickens words in a “Tale of Two Cities” – “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, …” – as a way to dramatize that we too are a “tale of two cities”  as this map of the United States, color coded for regressive legislation and tactics to disenfranchise women and children, people of color, the poor and the vulnerable, well illustrates.

On November 8, 2022, the AMA site posted a section titled “Advocacy in action: Protecting reproductive health.” But a constructive critic would be justified in suggesting that the plan is tall on “advocacy”, but short on “action.”

What does “action” look like? In Part 2 of this piece tomorrow, I’ll provide examples from Michigan, Kansas, Kentucky, and Washington.

Covid, The Plague, and Smart Students.

Posted on | November 10, 2022 | Comments Off on Covid, The Plague, and Smart Students.

Mike Magee

This semester at the President’s College at the University of Hartford I’ve been teaching a course on “The History of Epidemics in America.” Of course, epidemic disease knows no geographic bounds, and so we have been addressing how microbes have changed the world we live in over many hundreds of years and across all of our continents.

One of the many benefits of teaching is exposure to brilliant students. One of them approached me this week with the August 10, 2022 copy of the BBC’s History Magazine with the intriguing cover titled “The Big Questions of the Black Death.”  This was clearly “on-topic” since we had begun the course with a session on “The Plague” and Yale historian Frank Snowden’s memorable quote, “The word ‘plague’ will always be synonymous with ‘terror’.”

As you might imagine, a course on epidemics in 2022 never wanders far beyond Covid-19 and our continued struggles to gain an upper hand on this rapidly mutating virus. But history does instruct, and Stanford University medievalist historian of medicine, Monica H. Green, does just that in an interview published in this issue titled, “When the black death arrived in Europe, it was like striking a match in tinder.”

At the close of the interview, in a turn of the tables, Professor Green  is asked whether the present has changed her view of the past. Here’s what she says:

“One debate that is very current about Covid is how pandemics end. I’ve come to accept that pandemics last as long as the pathogen is still around in a way that can threaten human populations. That’s something that’s important to remember about the plague – that it didn’t just disappear in Europe after the 1340s. It came back between the 1350s and 1360s, and then in subsequent waves all the way through the 17th century. It hit one town and then it hit another. It was terrifying. It was still incredibly lethal, and no one knew when it was going to strike again.

“Plague and Covid are different diseases, but what defines a pandemic isn’t just the pathogen but also the human involvement in the transmission. Every pandemic – from cholera to HIV to flu – starts as a local disease. The question is, how does  a local disease become a global disease? That can only happen if humans are involved. The successful pandemic pathogen will be the one that can most effectively exploit our mechanisms of travel, migration and exchange, transportation, connection and communication.

“What has Covid done? It’s exploited aviation. What did plague exploit? The fact that so many different societies were majorly invested in the grain trade. So that’s the thing that we need to look at – the way that we as humans are creating the mechanisms to allow the pathogens to spread.”

 

The “Comstockery” of Justice Clarence Thomas

Posted on | November 3, 2022 | 2 Comments

Mike Magee

“When we think about the past, we think about history. When we think about the future, we think about science. Science builds upon the past, but also simultaneously denies it.” These are the words of Jim Secord, a Professor of History and Philosophy of Science at the University of Cambridge. His research and teaching are on the history of science from the late eighteenth century to the present, with a special focus on Darwinian evolution. 

His perspective is especially relevant when it comes to the recent Dobbs decision. The history of this contemporary struggle is as clear as is the science disputed by modern day left and right. It began on March 7, 1844, with the birth of this man, Anthony Comstock, in New Canaan, Connecticut. Raised in a strict Christian home, his religiosity intensified during a two-year stint in the Union Army during the Civil War.

A member of the 17th Connecticut Infantry, he took great offense to the profanity and debauchery he witnessed in and among his fellow soldiers. With the strong support of church-based groups of the day, and as the self-proclaimed “weeder in God’s garden”, he sought out a purpose and found a political vehicle in New York City’s Young Men’s Christian Association, and parlayed that to a post as the United States Postal Inspector.

His overarching goal was to advance Victorian morality by stamping out smut, which by his definition included obscene literature, abortion, contraception, gambling, prostitution, and more. The political arm he created in 1873, The New York Society for the Suppression of Vice, was chartered by the New York state legislature, and included the twin mottos of “Morals, not Art and Literature” and “Books are feeders for brothels.” 

Using local postal agents, his searches and seizures, whose subsequent sales were shared 50/50 with his own organization, bank rolled the lobbying of Congress necessary to pass the “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use”, otherwise known as the Comstock Laws. 

Pornography, contraceptive equipment, reproductive health literature, and books deemed risque’ or suggestive all fell into his crosshairs.

By his own account, prior to his untimely death on September 21, 1915, he had prosecuted 3600 defendants, seized 160 tons of obscene literature, enjoyed the active support of industry, the AMA, and the Catholic Church among others, and sparked equally restrictive and intrusive legislation in 24 states – one of those being Connecticut.

Along the way, he made powerful enemies. For example, in 1905 George Bernard Shaw, on hearing in London that his new play, “Man and Superman” had been removed from the New York Public Library, had this to say in a public letter published in the New York Times, “Dear Sir – Nobody outside of America is likely to be in the least surprised. Comstockery is the world’s standing joke at the expense of the United States. Europe likes to hear of such things. It confirms the deep-seated conviction of the Old World that America is a provincial place, a second-rate country-town civilization after all.”

It was not power but time that overtook Comstock. He died at age 71 in 1915, but his supporters fought on in an increasingly loosing battle throughout “the Roaring 20’s” and into the economic collapse of the nation, the Great Depression, and a looming war in Europe.

With World War II fast approaching, FDR and Justice Hughes weighed priorities and decided indecency was less of a threat to the country than venereal disease among the troops. The AMA lent its support as well, and drugstores responded to the laissez faire by stocking over 600 different “feminine hygiene” products.

But the final nail in the Comstock coffin was fittingly delivered in the crusader’s home state. The protagonist was Estelle Griswold, Executive Director of the Planned Parenthood League. Their first state office had opened in Hartford in 1935. In 1961, Griswold was arrested and fined $100 for providing contraceptives and birth control advice in their New Haven office. 

That arrest led to a landmark suit in the Supreme Court with effects far beyond Comstock. On June 7, 1965, in a 7 to 2 decision, authored by Justice William O. Douglas, the Supreme Court issued a 7–2 decision and struck down Connecticut’s state law against contraceptives. 

In the Majority Opinion, Douglas wrote: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system.”

In justifying the decision, he introduced an astronomical term, penumbra – the partially shaded outer region of the shadow cast by an opaque object such as the Earth.

In Justice Douglas’s words, “The provisions of the Bill of Rights created ‘emanations’ of protection that created ‘penumbras’ within which rights could still be covered even if not explicitly enumerated in the Constitution.”

When the Dobbs decision that effectively reversed Roe v. Wade was handed down, Justice Clarence Thomas in a concurrence statement wrote, “…in future cases, we should reconsider all of this Court’s substantive due process precedents, including GriswoldLawrence, and Obergefell.” These cases respectively deal with legal contraception, anti-sodomy laws, and same-sex marriage.

Of course, the elephant in the room, is self-evident. If “privacy” at the intersection of health and intimacy resided in the protective shield of “penumbra”, how about health itself? But in a Clarence Thomas world, historic precedent and scientific progress be damned. Bodily autonomy is a product of the state. Health is a luxury, doled out in small measure only to those who toe the party line. Justice Thomas is George Bernard Shaw’s modern day embodiment of “Comstockery.”

As Darwin himself wrote in On the Origin of the Species and Jim Secord recounted,  “Nature, like a careful gardener, thus takes her seeds from a bed of a particular nature, and drops them in another equally fitted for them.” But for Donald Trump and his followers, the dropping in and dropping out involves legal gymnastics that provide cover, as they borrow from science and reverse the course of history, through sleight of hand and purposeful slip of phrase. And as they reverse science and distort history, what is unnatural becomes natural, and rights become privileges.

If You Survived The Plague, Are You Destined For An Auto-Immune Disease?

Posted on | October 22, 2022 | Comments Off on If You Survived The Plague, Are You Destined For An Auto-Immune Disease?

Mike Magee

This Fall, I am teaching a 4-week course on “How Epidemics Have Shaped Our World” at the President’s College at the University of Hartford. It is, of course a timely topic, but also personally unnerving as we complete a third year under the shadow of Covid-19.

Where does one begin on a topic such as this? Yale historian, Frank M. Snowden, in his book “Epidemics and Society: From the Black Death to the Present”, made his intentions obvious. He would begin with the plaque. Why? His answer, “The word ‘plague’ will always be synonymous with ‘terror’”, and especially references:

Virulence: “It strikes rapidly, causing excruciating and degrading symptoms, and, if untreated, achieves a high case fatality rate (CFR)…of at least 50%.”

Speed: “Its progress through the body was terrifyingly swift. As a rule, the plague killed within days of the onset of symptoms, and sometimes more swiftly.”

Target: “It preferentially targeted men and women in the prime of life (and)…left in its wake vast numbers of orphans, widows and destitute families.”

Reaction: “…communities afflicted with plague responded with mass hysteria, violence, and religious revivals… people sought to assuage an angry god.”

Scapegoating: “Frequently, vigilantes hunted down foreigners and Jews and sought out witches and poisoners.”

One might also argue, as Snowden does, that the plague also launched the field of Public Health which included quarantines, penthouses, masking, and sanitary cordons. But knowledge of causality (Yesinia pests, passed along by common flea from ship rat to humans) and treatment (modern sanitary movement and modern antibiotics) was slow to reveal itself.

But that’s “ancient history.” Not so fast. Last week, Nature  published a paper authored by Jennifer Klunk PhD and her associates from McMaster University’s Ancient DNA Centre focused on modern genes that they now believe owe their existence to the Black Plague’s human rampage nine centuries ago.

The Black Death is estimated to have killed 30% to 50% of Europeans between 1347 -1351. But DNA anthropologist, Hendrik Poinar, a colleague of Klunk’s, focused on one nearly forgotten graveyard in London, the East Smithfield graveyard. It was purchased by King Edward III as a plague pit for mass burials, accepting “guests” for a small moment in time between 1348-1349. Later survivors of the plague, who died of other causes, were buried on top of plague victims in 1350 and beyond. The dated samples of DNA included cadavers from before, during, and shortly after the plague event.

The hypothesis: “…this concentrated mass death event could have caused hugely selective pressure on the genetics of the individuals who survived, who would likely have passed down genes that allowed them to survive the plague.”

The findings: 

  1. DNA samples were obtained from 318 cadavers in London and 198 cadavers in a Danish cohort. Burial position allowed investigators to pin time of death relative to the plague event. By comparing pre- and post-plague samples, the investigators were able to isolate 35 genes that were more prevalent in those that survived the plague. Cross-referencing with the Danish sampling, they whittled the list down to 4 genetic targets. 
  2. One of the four variations was associated with the endoplasmic reticulum aminopeptidase 2 (ERAP2) gene which codes a protein whose purpose is to slice and dice invading viral and bacterial proteins, and post or display them on the surface of macrophages. These “warning flags” allow the protective macrophages to identify what invaders next to gobble up and destroy. The presence of the gene appears to have offered a 40% increased chance of surviving the plague.
  3. Modern day humans can have one, two, or no working copies of the ERAP2 gene. Investigators armed with human blood samples from all three varieties then tested them against the Yersinia pests bacteria. As expected, samples with immune cells having two working copies of the ERAP2 gene were most effective in killing Y. pestis.

The hitch:

But possessing this survival gene comes with one important downside. Modern day humans who have the two working copies of ERAP2 are also more likely to inappropriately attack their own living cells. Specifically, rates of Crohn’s Disease, Rheumatoid Arthritis, and Lupus are higher in this cohort than in those without the survival gene variant. The implications are obvious to all, and enough to bring Darwin back from the grave. As University of Arizona population geneticist said, “This is a truly impressive paper. The implications of the potential speed and power of natural selection in immune genes are wild.”

The protective, and potentially autoimmune causing variant, lives on in 45% of modern day Brits. Thus epidemics will continue to shape our world, raising difficult risk/benefit questions along the continuum of infectious disease, immunity, chronic inflammation, and modern day vaccine policy.

Promises Made – Promises Kept. Biden on “Obamacare.”

Posted on | October 17, 2022 | Comments Off on Promises Made – Promises Kept. Biden on “Obamacare.”

Mike Magee

As the saying goes, “History repeats!” This is especially true where politics are involved. 

Consider for example the past three decades in health care. It is striking how many of the players in our nation’s health policy drama remain front and center. And that includes President Biden who recently commented on the 12th anniversary of the passage of the Affordable Care Act (Obamacare): 

“The ACA delivered quality, affordable health coverage to more than 30 million Americans — giving families the freedom and confidence to pursue their dreams without the fear that one accident or illness would bankrupt them. This law is the reason we have protections for pre-existing conditions in America. It is why women can no longer be charged more simply because they are women. It reduced prescription drug costs for nearly 12 million seniors. It allows millions of Americans to get free preventive screenings, so they can catch cancer or heart disease early — saving countless lives. And it is the reason why parents can keep children on their insurance plans until they turn 26.”

The seeds for the ACA were planted when President Clinton assumed office in 1992, and put his wife Hillary Rodham Clinton, in charge of creating a government driven plan. Efforts to find a complex middle ground showed promise but ultimately failed. Seeing an opening,  conservative Republicans declared in 1994 that it was “Dead on Arrival’ – and it was. Though there were some incremental expansions of coverage for vulnerable populations, like the Children’s Health Insurance Plan (CHIP) guided thru the Senate by Ted Kennedy as part of the 1997 Balanced Budget Act, the first signs of significant innovation and progress came later from Kennedy’s home state of Massachusetts.

Leading the charge in 2006 was the state’s Mormon, uber-capitalist, Republican Mitt Romney. With an eye toward a Presidential run, that would come six years later, he adopted the Heritage Foundation plan, complete with an “individual mandate”, and worked with the state’s Democratic legislature to enact the law. The mandate required all to be insured or pay the greater of $695 per adult and $347.50 per child per year or 2.5% of household income annually to the state.

When Barack Obama assumed the Presidency in 2008, the annual per capita health bill in the U.S. had reached nearly $8000 per year, twice the amount of any comparator developed nation in the world. Coming in, President Obama knew health care would be his signature legislation, and that he’d pay a steep price for it.

From the outset, three things were clear. First, a second run of the famous “Harry and Louise” ads that collapsed the Clinton health care effort in 1992 had to be headed off. So Obama met with each of the four health sectors – the AMA, the American Hospital Association (AHA), PhRMA, and the insurers – and made significant early concessions. No Medicare price negotiations or importation from Canada for PhRMA; lucrative Medicare Advantage plans for insurers; protected non-profit status and continued subsidies for hospitals for medical education and serving the underserved; and no changes in reimbursement for doctors.

Second, the template for what became the Affordable Care Act would be the Massachusetts universal health care initiative, a product of a Republican think tank and a Republican governor. Third, Republican Majority Leader Mitch McConnell would do everything within his power to block and destroy the legislation since he had already pledged that his single objective as Leader was to assure that Obama would be a single term President.

On March 23, 2010, President Obama signed the Affordable Care Act into law initiating a decade long war with Republicans on two fronts. First, in Congress, Republicans voted to repeal the law more than 60 times, all unsuccessfully. The most dramatic attempt came on July 28, 2017 when John McCain teamed up with fellow Republicans Lisa Murkowski and Susan Collins, and managed to appear in the chamber near death from brain cancer to provide a camera ready “thumbs down” to the Trump/McConnell effort.

Over this same decade, Republican-led states in parallel had attacked the law on Constitutional terms, chipping away at the statutes, without offering an alternative. Opponents termed the act “Obamacare” as if it were a pejorative label. The President turned that on his critics stating,  “I have no problem with people saying Obama cares. I do care.”

“Repeal and Replace” became the rallying cry of Republicans. They didn’t succeed. But numerous challenges to the constitutionality of the legislation continue to this day. 

In 2012, 26 Republican led states Attorney Generals joined in a suit to challenge the individual mandate which worked its way up to the Supreme Court. This was a component of the Massachusetts law designed to insure that all citizens and organizations would participate and contribute to even risk-sharing essential for insurance viability. Romney had tried to remove the clause from the Massachusetts bill but his veto was overridden by the Massachusetts legislature. In the federal bill the mandate was the  “stick” to counterbalance the various “carrots” of premium subsidies. 

The petition against the ACA mandate became the landmark case – National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). The argument for repeal of the mandate was based on the fact that the administration had justified the mandate as constitutional based on the Article 1 Section 8 Commerce Clause or Necessary and Proper Clause. On June 28, 2012, Chief Justice Roberts disappointed fellow Republicans with a complex decision that split the difference.

As he stated in his closing: “The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.  Such legislation is within Congress’s power to tax.”

Roberts did support Republicans on a separate issue. The ACA had mandated that all states expand eligibility to Medicaid and agreed to subsidize 90% of the added expense. Republican states challenged the right of the federal government to impose those changes. 

The Court’s ruling stated, “As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer.”

President Obama and Vice President Biden declared victory, praising the decision, and House Speaker Nancy Pelosi honored the lifelong campaign for universal health care by Ted Kennedy, who had died of brain cancer 10 months earlier, stating that he could now “rest.” Despite Republican pledges to fight on, as the New York Times wrote that day this ruling “may secure Obama’s place in history.”

President Biden echoed these same sentiments recently stating, “When I ran for President, I promised I would protect and build on Obamacare — and that’s exactly what my Administration has done. Thanks to the American Rescue Plan, ACA premiums are at an all-time low, while enrollment is at an all-time high…We’ve made tremendous progress, but our work is far from over.”

Need more specifics?

  1. “Thanks to the American Rescue Plan, ACA premiums are at an all-time low, while enrollment is at an all-time high.”
  2. “Four out of five Americans can find quality coverage for under $10 a month, and families are saving an average of $2,400 on their annual premiums.”
  3. “… increased enrollment to a record high 14.5 million Americans … including nearly 6 million who enrolled for the first time…”
  4. “…an additional 18.7 million low-income Americans now covered by Medicaid expansion.”
  5. “…the HealthCare.gov enrollment rate increasing by 26 percent for Hispanic Americans and 35 percent for Black Americans.”
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