HOW DID WE END UP MAKING PEOPLE BUY PRIVATE HEALTH INSURANCE? IS IT CONSTITUTIONAL? ONE LAWYER’S VIEW

The debate and the litigation over Obamacare and its “individual mandate” has been cast in traditional left/right terms. Those on the left favor requiring persons to buy health insurance so that it is possible to insure everyone, including those with pre-existing conditions. Those on the right oppose it as an unacceptable intrusion by government into the lives of Americans by requiring them to buy a product they may not want.

I consider myself a progressive, and I have serious misgivings about the individual mandate, legally and otherwise. Our country, unfortunately, has a system in which private insurance companies, operating at a profit, are the means we have to access health care. This has proved far more expensive than systems like that in Canada, where a government-run plan paid for by taxes provides free medical care to all. In addition to the expense, our privately financed and run health care system pits the provider, the insurer and the patient against each other. The provider seeks to charge as much as possible, the insurer seeks to avoid coverage, and the patient is at the mercy of both.

One response has been for people to opt out of the system altogether, and accept the risk of being uninsured in the face of serious illness. Some do so because they cannot afford private insurance (or do not want to belt-tighten when it comes to necessities like food and education) and do not qualify for Medicaid. Others do so because they consider the risk a better alternative to entering the health insurance market.

This is the context in which the government – which has failed for generations to come up with an affordable, compassionate and medically sound system -- seeks to force citizens to pay and participate. This is the “solution” they have come up with.

Now, it is true that we live in a profit-based economic system, whether we like it or not. A rationale for such a system is that people are free to participate when and how they want to. You don’t have to get cable TV or a new car if you prefer to spend your money some other way.

Obamacare and its individual mandate is the worst of both possible worlds. It is a for profit system in which you do not have the freedom of choice that free enterprise promises.

Is this constitutional?

Birth Control and Religious Freedom

The nation’s Catholic bishops and some other religious leaders are protesting the Obama administration’s determination that church operated schools, hospitals and charitable institutions that provide health insurance to their employees (most of whom are lay people) must include coverage for contraceptive pills and devices. They argue that religious institutions and those who operate them cannot be made to spend money for things that violate their religious beliefs.

Let’s be clear. Nothing in the law requires any person or institution to use or provide contraceptive services. All that is mandated is that employee health plans include coverage for them.

The principle that people cannot be made to pay for things they do not want for themselves and do not believe in could have broad ramifications. Residents of Texas must pay taxes that are used to carry out executions in capital cases. The federal government requires that we pay taxes that are used to support wars, even if we think war is morally wrong.

Now, you might argue that opposition to capital punishment or war is moral, not religious, in nature, and therefore the First Amendment protection for religious freedom doe not apply. However, conscientious objector status has been accorded to exempt persons from the draft if they oppose war on religious or deeply held moral grounds. So, if the bishops are correct, shouldn’t conscientious objectors be allowed to withhold that portion of their tax obligation that supports the military budget?

As for the death penalty, the Anglican and Episcopalian churches oppose it.

The bishops might argue that requiring persons to pay taxes is different from requiring them to buy health insurance. But don’t the bishops lobby to prevent federal tax dollars from going to support abortion?

These are some of the thorny issues that must be engaged as this fight between the bishops and their allies and the federal government plays out.

A SECOND LOOK AT AN ISSUE IN CHURCH-STATE RELATIONS

In September, 2008 the New York Court of Appeals was scheduled to hear oral argument on the issue of whether the Archdiocese of New York could demolish historic St. Brigid Church without the permission of the parishioners. The parishioners claimed that Section 5 of the Religious Corporation Law required their permission before the chief asset of a religious corporation could be used for a purpose other than the support and maintenance of the corporation.

The Archdiocese argued that the hierarchical nature of the Roman Catholic Church exempted it from that stricture. The parishioners responded that the Archdiocese waived any such special treatment when it elected to incorporate St. Brigid and many other parishes under the Religious Corporation Law; it could not claim the benefit of corporate status (such as limited liability) without abiding by its requirements.

On May 19, 2008, before the case was to be heard, the Archdiocese announced that an anonymous donor had come forward with $20 million to restore and reopen St. Brigid. The appeal became moot and this important legal issue was not decided by New York’s highest court.

On November 15, 2011, however, the Court of Appeals will hear argument on the same legal issues in a case involving Our Lady of Vilna Church in lower Manhattan, built by Lithuanian immigrants in the early twentieth century. The outcome of the case will determine the fate of this and other churches among the hundreds of incorporated parishes in New York.

I will be arguing on behalf of the parishioners. Peter Johnson, Jr. will appear for the Archdiocese.

WILL THE EDWARDS PROSECUTION UNRAVEL CAMPAIGN FINANCE REGULATION?

John Edwards has been indicted for receiving large gifts from friends that he used to cover up his affair and love child with Rielle Hunter during his presidential campaign. According to federal prosecutors, these were campaign contributions and expenditures and should have been reported as such. In addition the amounts given to Edwards exceeded the $2,500 contribution limit.

The theory of the prosecution appears to be that the gifts and expenditures were meant to benefit the campaign by avoiding disclosure of what would surely have damaged Edward’s status as presidential contender.

As a candidate in a presidential primary, Edwards received $12,882,877.42 in federal primary matching funds. These funds are available to a candidate to be used for “qualified campaign expenses.” It follows under the prosecutions’ theory that Edwards could have used federal money to conceal his sexual peccadilloes.

OK, so I am running for president and the recipient of primary matching funds. My teenage daughter gets pregnant, and I am concerned it might damage my campaign, so I arrange for an abortion, with her consent of course. Can I use matching funds for this? Or, I am accused by a masseuse of making a pass at her during a massage. She threatens to go public if I don’t give her $250,000. Can I use matching funds for this? What if a young woman threatens to expose a titillating tweet I sent her? Under the theory of the Edwards prosecution, the answer would have to be yes.

Should the government compile a list that states which such expenditures are allowed and which are not? If they don’t, and surely Edwards will contend, they have not, how is a candidate to know what is legal and illegal. And if the funds are so used and reported, how much information must be given about their purpose? Would not a filing that disclosed the purpose defeat the purpose of spending the money in the first place? What is a candidate to do?

Tune in to the John Edwards trial to find out.

TO BAIL OR NOT TO BAIL

There is certainly an issue as to whether or not Dominique Strauss-Kahn posed a sufficient flight risk to be denied bail. After all, he is a citizen of France (a country that does not have an extradition treaty with the U.S.), and he was arrested on an airplane about to take off for Paris.

On the other hand, his crime, while serious, is not murder, and he had to post one million in cash and five million in collateral to remain free pending trial. Cleary, no matter what decision the court made on the issue of bail, it was bound to cause controversy. Since his arrest, the tabloids have bombarded us with headlines like, “LePerv’s Palace, Outrage as Dom Gets Bail” and “Pepe Le Pew! East Side High Rises Slam Door on Skunk.”

Part of what is fueling the controversy is that a clean decision was not made. There appears to have been a negotiation with the court, the prosecutor and the defense team in which, in addition to bail, Strauss-Kahn and has family agreed to pay a private security firm to place him under house arrest and electronic monitoring. So was he granted bail or wasn’t he? Was he allowed to substitute arrest in more comfortable surroundings (at his expense) for being housed at Rikers Island with the regular folks who have been denied bail? According to the NY Post Strauss-Kahn has rented a Tribeca townhouse for $50,000 per month.

What appears to have been an effort to cover both sides of the controversy may have actually exacerbated it. It is the spectacle of justice negotiated that is so questionable. Who can afford such a negotiation? And who is allowed to engage in it even if they could afford it? We elect and pay our judges to make decisions and take the heat, not to avoid hard choices by compromising the values that underlie our legal system, in particular, “equality before the law.”

Independents Tie the Score

Yesterday, in the second U.S. District Court decision this month on the subject of open primaries, Judge J. Michelle Childs threw out an attempt by the Republican Party of South Carolina to close the State's primary elections. On March 2, Idaho District Court Judge B. Lynn Winmill ruled in favor of the Republicans. In both cases independent voters, IndependentVoting.org, and other supporters of open primaries intervened. A copy of the SC decision can be viewed at http://www.ballot-access.org/2011/16314846926.pdf . Independents have filed an appeal from the Idaho decision.

I am proud to be working with attorneys Gary Allen of Boise and Fletcher Smith of Greenville on these important cases.

YOU CAN’T UNDERSTAND THE CONSTITUTION WITHOUT READING ALL OF IT

There has been some controversy generated over the reading of the United States Constitution during the opening session of the new Congress, organized by the new Speaker of the House, John Boehner. It had to do with “scrubbing” the document, ostensibly to conform it to the amendments (which affected some of the original text) and, in particular, the failure to read the part of Article I, Section 2 stating that each slave shall count as 3/5 of a person in determining the number of seats in the House allotted to each state.

To understand the history of the Constitution, and of our country, the original text should not be “scrubbed.” The 3/5 compromise with the slaveholding states was integral to our nation’s founding, just as the abolitionist movement and the civil war that led to amendments ending slavery and according former slaves full citizenship are to what followed. How can you understand what the amendments mean without understanding what they are amending?

One thing the Congressional readers did not have to remove from the document is any reference to political parties. Why? Because there are none. One would hope that some Members reflected on the irony that the document which establishes the structure of Congress and the rest of our government is as nonpartisan as our government is partisan. If they did, they surely did not speak up about it, as to do so would, no doubt, hurt their chances for important committee assignments, and other perks of office, all of which are doled out on a partisan basis.