July 2011

by Jeremy Leaming

Right-wing policy makers have spent more than a year bemoaning, as a serious affront to liberty, the Affordable Care Act’s (ACA) provision that requires people to carry, starting in 2014, a minimum amount of health care insurance or pay a penalty. Supporters of the health care law point out, however, that without the minimum coverage provision, the landmark health care reform law would be ineffective, allowing insurance companies to discriminate against people with pre-existing conditions, thereby undercutting a main impetus of the law, which is to make sure that the vast majority of Americans are able to carry health care insurance.

Despite the hue and cry from the Right over the ACA’s minimum coverage provision, government mandates on abortion continue to proliferate in the states, especially those states with legislative bodies controlled by right-wing policy makers.

Yesterday, the North Carolina Senate successfully enacted a law that will require women seeking abortions to wait 24 hours, receive state-mandated “counseling,” and a state-mandated ultrasound before receiving the medical procedure. Both chambers of the North Carolina General Assembly overrode Gov. Bev Perdue’s veto of the measure. Twenty-five states now require government-mandated “counseling” and waiting periods before women can receive abortions.

Following the Assembly’s action, Gov. Perdue issued a brief statement saying, “The Republican’s social agenda has, with this bill, invaded a woman’s life as never before – by marching straight into her doctor’s office and dictating the medical advice and treatment she receives.”

The Center for Reproductive Rights President and CEO Nancy Northup ripped the new law as politically motivated and constitutionally suspect.

“It is extremely disheartening that the North Carolina legislature would go out of its way to enact a law that uses the doctor-patient relationship to advance a political agenda,” Northup said in a press statement. “When women go to the doctor, they don’t expect to be held hostage in an attempt to change their minds. They rightfully expect to be treated as an adult capable of making their own personal decisions. This law is an affront to a woman’s dignity and a violation of her constitutional rights.”

At the ACS 10th Anniversary National Convention, former Acting Solicitor General Walter Dellinger, a partner at O’Melveny & Meyers, blasted the Right’s rhetorical and legal attacks on the health care law’s minimum coverage provision, saying he’s had enough of the lectures about government encroachment on liberty.

“We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty,” Dellinger (pictured) said during a panel discussion on the constitutionality of the ACA. “And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about [a] government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

Louise Melling, director of the ACLU’s Center for Liberty, in an interview with ACSblog, said this year has been an especially bad one for reproductive rights. (And this interview came before the action in N.C. She talked with ACSblog following a panel at its national convention on reproductive rights.)

The bills passed are making it more and more difficult for women to find physicians who can perform abortions, and having a stigmatizing effect as well, Melling said.

“It is also a way of stigmatizing to say ‘women can’t make these decisions,’ we’re not … trusted decision-makers, and we need assistance as we make this decision,” she said.

And what is awfully “scary,” Melling said was that politicians are not paying a price for supporting the draconian laws.

“Nobody is really standing up to say this is not ok, these laws are just rolling right through,” she said.

Watch her entire interview below or download a video podcast of it here. The video is also available at this site.

By Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School.

These are heady days for administrative law. In hearing after hearing on Capitol Hill, members of Congress have examined the virtues and vices of a host of pending bills that aim to encumber regulatory decision-making. There are bills to require congressional approval before major regulations take effect, bills to subject informal agency guidance to notice-and-comment rulemaking, and bills demanding the elimination of one regulation every time another is imposed. For all their differences, however, the bills share a common purpose: to put the kibosh on what their sponsors decry as job-killing regulations.

This is all a bit surreal. Hobbling federal agencies makes sense if the burdens of regulation systematically exceed the public benefits. But they don’t. In comprehensive studies, both Republican and Democratic administrations have repeatedly found that regulation confers substantial net benefits. The notion that federal bureaucrats as a group are heedless of social costs — or worse, that they regulate just for the thrill of it — has no foundation in either fact or theory.

The truth is that some agencies grow so close to industry groups that they may not regulate diligently enough. A few examples: