Wonkbook: The latest legal battles over health care and abortion rights

August 5

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(Photo by Daniel Acker/Bloomberg)

Wonkbook’s Number of the Day: 887. That's the latest death toll in the Ebola crisis.

Wonkbook’s Chart of the Day: Have most economic indicators improved under Obama? Not really.

Wonkbook's Top 4 Stories: (1) Abortion rights and Obamacare in the courts; (2) another public-health problem; (3) checking in on the migrant children; and (4) what's holding back the economy?

1. Top story: Legal skirmishes over abortion rights and Obamacare

Court strikes down measure that would have forced Alabama abortion clinics to close. "The requirement...would have forced three of Alabama’s five abortion clinics to close, severely restricting access to abortions while not providing significant medical benefits, United States District Judge Myron H. Thompson wrote in a 172-page decision. The ruling adds to a swirl of contradictory court decisions on the requirement of admitting privileges, especially in the South....Major national medical associations have said that requiring admitting privileges are medically unnecessary because in the rare emergency, hospitals will accept patients and specialists will provide treatment. A similar law in Mississippi that would have shut down the state’s sole abortion clinic was overturned last week by a federal appeals court." Erik Eckholm in The New York Times.

Judge draws a gun-rights analogy. "In the conclusion of his opinion, Thompson drew an analogy between the right to abortions and the right to bear arms, both of which face staunch opposition but are typically championed by opposite ends of the political spectrum. A constitutional right cannot be regulated to the point where it becomes effectively unavailable, Thompson argued, whether that right be terminating a pregnancy or purchasing a handgun. For example, he said, if Alabama issued regulations that limited firearms sales to only Huntsville and Tuscaloosa, gun-rights advocates would not be pleased." Sophie Novack in National Journal.

Meanwhile in Texas, abortion-rights supporters are fighting a new state measure. "Abortion-rights supporters are seeking to strike down a new provision of a state law that will require abortion clinics to qualify as 'ambulatory surgical centers' starting next month, saying it will force even more of the state's facilities to close. Since Texas Gov. Rick Perry signed a hotly contested law...requiring abortion doctors to have admitting privileges at nearby hospitals, the number of licensed Texas clinics providing abortions has declined by half....Many abortion doctors have been unable to obtain admitting privileges from neighboring hospitals....Another provision requiring abortion providers to qualify as ambulatory surgical centers, which is set to take effect Sept. 1, is now met by only seven clinics." Nathan Koppel in The Wall Street Journal.

Obamacare challenges head closer to the Supreme Court. "The challenges, if they succeed, would tear apart central provisions of the Affordable Care Act. On Friday, the Justice Department asked a federal Appeals Court to overturn a ruling that said insurance subsidies should not be available in more than half the country. That ruling would 'eviscerate the ACA"s model of cooperative federalism' and 'thwart the operation of the ACA's core provisions,' the Justice Department argued. As expected, the Obama administration asked the full D.C. Circuit to hear the challenge....On the same day the D.C. Circuit panel issued its decision, another three-judge panel in another federal Appeals Court...sided with the Justice Department, saying subsidies are legal in all 50 states. The challengers in that case, King v. Burwell, appealed their case to the Supreme Court on Thursday." Sam Baker in National Journal.

States prepare workarounds should Halbig stand. "Many have more to worry about than the computer glitches that plagued them last year. Last month’s federal appeals court ruling that said language in the Affordable Care Act allows only state-run exchanges to give consumers tax credits to help pay for policy premiums is spurring several states to solidify their state-based credentials....The question is when does an exchange legally become a 'state' exchange? According to Timothy Jost, a health law professor at Washington and Lee University, it is when state lawmakers or the executive branch appoints a state entity, such as a government agency or nonprofit organization, to run its exchange." Christine Vestal in Pew Charitable Trusts.

GOP senator to appeal Obamacare lawsuit. "'To honor my solemn oath of office, I feel compelled to exhaust every legal recourse,'  [Ron] Johnson said in an op-ed in the Milwaukee Journal Sentinel over the weekend. 'I will file my appeal on Monday.' Johnson had filed suit over a rule that allows congressional staff to continue to receive federal healthcare subsidies when signing up for ObamaCare. A federal judge, though, dismissed his case last month, arguing the senator and a member of Johnson's staff did not have standing to challenge the rule, because they suffered no injury." Mario Trujillo in The Hill.

Studies: Thank the recession for the health-spending growth slowdown. "A new study finds that the recession gets most of the credit...suggesting that an improving economy could accelerate health spending once again....During those three years, the slumping economy accounted for 70 percent of the spending slowdown, according to a new peer-reviewed study....A separate working paper released Monday from the Brookings Institution also argues the slowdown is largely the result of the two previous recessions. One thing the Northwestern paper can't answer, however, is what's contributed to the slowdown since 2011, when major features of the Affordable Care Act started to kick in." Jason Millman in The Washington Post.

New ACA rules seek to dock poorly performing hospitals. "Implementation of ObamaCare’s Hospital Acquired Condition Reduction Program is among several provisions of a final rule updating the Medicare payment schedule for general acute care and long-term care hospitals in fiscal 2015. Under the rule, hospitals with the highest rates of hospital-acquired conditions would see their Medicare inpatient payments cut by one percent. The regulations also increase the maximum payment reduction from 2 percent to 3 percent for hospitals with the highest readmission rates." Benjamin Goad in The Hill.

Free clinics retool to survive Obamacare era. "While a few free health clinics have shut their doors in Arkansas and Washington, most expansion-state non-profit free clinics are reassessing their business strategies. Medicaid offers the potential to give their patients better access to specialists, diagnostic testing and hospital care, and that's created a sense of unease for operators of the clinics that for decades have played a key role in the nation's health-care safety net." Phil Galewitz in Kaiser Health News.

Other health care reads:

Two doctors weigh whether to accept Obamacare plans. Jeff Cohen in NPR.

Hospitals and health plans see the future very differently. Jay Hancock in Kaiser Health News.

HHS brings back Medicare program that caught $8B in wasteful payments. Tim Devaney in The Hill.

FLAVELLE: You qualify for Medicaid — don't sign up. "If the states that have already imposed premiums were the outliers, then this would be a frustrating story but a limited one. However, 24 states still refuse to expand their Medicaid programs, and there's a strong chance that some of those will change their minds on the condition that they can impose premiums, too. There's an equally good chance that the Centers for Medicare and Medicaid Services, which faces pressure to bring those states into the fold, will go along with it. Unquestionably, access to Medicaid for a small premium is better than no access at all. But this new research says we shouldn't mince words about the point of those premiums. They're designed to get fewer people to sign up." Christopher Flavelle in Bloomberg View.

Top opinion

PETHOKOUKIS: Why corporations should pay zero taxes. "The corporate income tax is so harmful that we should just get rid of it. That would really help America's struggling middle class. Economic modeling conducted by Boston University economist Laurence Kotlikoff finds 'a very strong, worker-based case' for swinging the ax....Now, Kotlikoff's findings are probably at the high end of estimates. But they are tantalizing nonetheless. You can imagine, too, how multinational corporations currently based in low-tax countries might suddenly see the huge advantage of headquartering themselves in the no-tax U.S. Of course, we can't depend on this tax cut paying for itself." James Pethokoukis in The Week.

KLEINBARD: No defense for today's income inequality. "Defenders of the status quo have no answer to why the U.S. is an outlier in the rate at which income inequality has grown. There is something about the U.S. that is unique, and it's not its markets, which are largely indistinguishable from those of other countries. No, it's the comparatively parsimonious investments the U.S. makes in its citizens. Americans simply do not have equal opportunities. This is more than an ethical or social issue: Underinvestment in human capital leads to lower productivity, which is to say, lower national income. Comparative data show that the U.S. offers less social and economic mobility than do many of its peer countries — a startling rebuke to the mythology of America as the land of opportunity." Edward D. Kleinbard in Bloomberg View.

TUNSTALL: America's oil-export policy is stuck in the 70s. "Lifting the export ban would bring WTI back to parity with Brent crude prices and lift the economy accordingly. It would also enable the U.S. to ship its lighter crude oil to European refiners that are better equipped to process it. At the same time, U.S. exports of lighter crudes could be substituted at home with the heavier crudes from Canada, assuming the Keystone XL pipeline is approved. This would better optimize the refining capacity along the Gulf Coast. It would also change refining practices. The export ban has an interesting twist....There has never been a similar ban on the export of refined products such as gasoline, diesel and jet fuel." Thomas Tunstall in The Wall Street Journal.

POSNER: The president can legally enforce — or not enforce — immigration law. "The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious. Thus, the IRS doesn’t audit paupers very often. The Justice Department ignores a lot of anticompetitive behavior that might raise prices a bit but not much. The DEA focuses on criminal syndicates rather than ordinary drug users....Nearly all of this non-enforcement takes place with implicit congressional acquiescence." Eric Posner in The New Republic.

KENNY: The War on Drugs created the border crisis. "The refugee crisis is now our problem, which is appropriate: The drug-linked violence that the children are fleeing is in large part our fault. Anti-drug policies in the U.S. and Europe have not succeeded in curbing drug use or in raising drug prices, but they have considerably increased crime and violence worldwide. It is time to shift the effort to focus on helping drug users at home rather than battling drugmakers and traffickers abroad. A little-considered consequence of criminalization is displacement: When a state or country makes an activity illegal, the new criminals find new haven." Charles Kenny in Bloomberg Businessweek.

Animals interlude: Playful lion cub scares the daylights out of dog.

2. Toledo's water crisis is a message to states

The warning behind Ohio's algae-bloom water crisis. "The harmful toxin found in Lake Erie that caused a water crisis in Ohio’s fourth-largest city this weekend has raised concerns nationally. That’s because no states require testing for such toxins, which are caused by algal blooms. And there are no federal or state standards for acceptable levels of the toxins, even though they can be lethal. In Toledo, Ohio...voluntary tests at a water treatment plant found elevated levels of the toxin microcystin, which is produced by blue-green algae." Neena Satija in The Texas Tribune.

Explainer: Toxins in Ohio water: Could it happen again? Jolie Lee in USA Today.

Toledo's water is safe to drink again, officials say. "An aging water treatment plant, a nasty algae in Lake Erie and weeks of dry, still weather conspired to sabotage Toledo's drinking water, experts say. Mayor D. Michael Collins lifted the ban on drinking tap water Monday, saying tests showed the water is once again clear of the toxins that had sent more than 400,000 northwestern Ohioans scrambling for drinkable water since Saturday morning....Collins said carbon and other chemicals were used to clean the water of toxic microcystin....The water ban had been complicated because boiling the water, a common tool to combat contamination, only serves to make microcystin more concentrated." John Bacon in USA Today.

Why are algal blooms making a comeback? "Algae blooms are fed by excess nutrients like phosphorus that are added to the water — fertilizer runoff from farms or effluent from sewage-treatment plants.* Those algae blooms can, in turn, kill off plant and animal life in the lake and poison the freshwater supply. But why are algae blooms making a comeback? After all, the region around Lake Erie took drastic measures in the 1970s to limit the amount of phosphorus entering the lake in order to curtail large algae blooms. That worked for a few decades. But since the late 1990s, large algae blooms have returned to Lake Erie. Possible culprits include changing farming practices, zebra mussels, and even climate change." Brad Plumer in Vox.

No need to restrict inbound flights from Ebola-stricken African nations, White House says. "The White House on Monday said U.S. officials have taken multiple precautions to prevent the spread of the Ebola virus to this country, eliminating the need to block flights from African nations stricken by an outbreak of the deadly disease....But Mr. Earnest outlined a series of steps taken to minimize the risk of the disease spreading, including steps the Centers for Disease Control has taken to train Customs and Border Patrol officers to recognize symptoms of the illness." Jeffrey Sparshott in The Wall Street Journal.

CDC: Airlines can deny boarding to passengers with Ebola-like symptoms. "The Centers for Disease Control and Prevention has told airlines they can deny boarding to passengers who are exhibiting symptoms of the Ebola virus. In guidelines issued by the CDC, the health body also says airlines should separate infected passengers who display signs of the virus during flights from other flyers....The CDC added in its warning that 'airplanes traveling to countries affected with Ebola should carry Universal Precaution Kits, as recommended by the International Civil Aviation Organization.' Keith Laing in The Hill.

Twitter is transforming how CDC gives public information on disease outbreaks. "Are we risking a stateside outbreak by bringing the doctor here? No, says the Centers for Disease Control and Prevention. While it's impossible to say that no one in the U.S. will become infected with the virus, the risk of an epidemic is extremely low, the CDC says, and the general public shouldn't be worried. To drive that point home, the public health institute launched an hour-long discussion on Twitter at 4 p.m. Monday using the hashtag #CDCchat. The questions have been pouring in every second since." Marina Koren in National Journal.

Too early to know whether experimental serum saved U.S. Ebola patients. "Leaders at Samaritan’s Purse...asked officials at the Centers for Disease Control and Prevention whether any treatment existed — tested or untested — that might help save the lives of Kent Brantly and Nancy Writebol....The CDC put the group in touch with National Institutes of Health workers in West Africa, where an employee knew about promising research the U.S. government had funded on a serum....While it is too early to say whether the treatment saved the lives of the two missionaries or slowed the disease’s progression enough...some reports have suggested that Brantly and Writebol improved after getting the serum." Brady Dennis and Lenny Bernstein in The Washington Post.

Outbreak's real cause: Letting industry drive the research agenda. "Every once in a while, these nightmarish outbreaks pop up and capture the international imagination. Worries about global spread are worsened by the fact that Ebola has no vaccine and no cure. Here's what's surprising and interesting about this state of affairs: it is not caused by a lack of human ingenuity or scientific capacity to come up with Ebola remedies. It's because this is an African disease, and our global innovation system largely ignores the health problems of the poor." Steven Hoffman and Julia Belluz in Vox.

Tiebreaker interlude: "Teen Jeopardy!" has a rare sudden-death tiebreaker.

3. An update on the migrant crisis 

Does a nice new detention center signal more deportations? "The 532-bed center opened Friday to help with the crush of unaccompanied minors and families crossing the Texas border recently....Despite the glossy amenities and cartoon murals on the walls, the facility signals a subtle shift in immigration tactics by the federal government. Instead of releasing women and children apprehended at the border and requiring them to return at a later date — which some did not do — federal officials say more space to detain them could lead to increased deportations." Rick Jervis in USA Today.

Border Patrol processing 'iceboxes' are drawing policymakers' scrutiny. "Border Patrol processing facilities are generally not designed to house people for long periods of time. Child migrants caught at the border receive medical screening and have their information recorded at the processing centers, and ideally spend no more than 12 hours there before being transferred....But with such large numbers of migrants coming across the U.S. border in recent years, hundreds of children now spend several days or weeks in makeshift processing centers. Many children have mentioned scant amenities: two sandwiches a day to eat; sleeping in large, lit rooms with hundreds of other children; and thin, nylon blankets. But none of this explains the many accounts of freezing-cold rooms." Brianna Lee in International Business Times.

The legal fight to provide lawyers for child migrants. "The plaintiffs are six children from Guatemala and El Salvador. But the legal arguments go to the heart of the border debate in Congress and seek to establish a larger class-action case with major national implications. Indeed, as thousands of unaccompanied children have crossed into Texas this year, Republicans are demanding much faster deportation proceedings while denying funding for attorneys for the children. DOJ is trying to find some middle ground while taking new steps to assist in providing counsel for the children. But officials privately admit that these initiatives are only just starting and fall far short of what is needed if the children are to have counsel." David Rogers in Politico.

No more military housing for migrants. "Hoping to save money and political angst, the Obama administration is pulling back from using military facilities to provide temporary shelter....The Department of Health and Human Services said Monday that it will suspend these operations within the next two months...The military facilities have been a crucial but often very expensive stopgap for HHS in managing the crisis, in which the department was flooded with nearly 20,000 newly arrived children in the months of May and June alone. More than 7,700 of these unaccompanied migrants were cared for at the three posts. But after the border crossings dropped off in July, HHS hopes to manage with more permanent shelters that are more efficient in terms of costs." David Rogers in Politico.

Where are the migrants posing the biggest challenge to communities? "In some towns, activists have tried to stop local facilities from being used as temporary detention centers for migrant families before their deportation. In others, local officials have invited the government to use buildings to house children temporarily, while the federal Office of Refugee Resettlement...looks for relatives or family friends who can take them in while their immigration cases work through the courts.Less attention's been paid to what happens after that: where child migrants live when they're released into relatives' custody. But that's where children will be staying for months or years, and where they'll actually be interacting with other members of the community and going to school." Dara Lind in Vox.

Does Mexico hold the key to border crisis? "Mexico is neither impoverished nor weak. It has a network of highway checkpoints to screen travelers and large detention centers to hold illegal migrants. It has tens of thousands of federal police officers and immigration agents capable of arresting and deporting them, while also providing protection from attacks by criminal gangs....But large stretches of Mexico’s rail corridors, highways and border areas are effectively under the control of cartel gangsters who have learned to squeeze handsome profits from the human trafficking business. Mexican law enforcement agents often are not much better." Nick Miroff in The Washington Post.

Many Mexican child migrants caught multiple times at border. "Out of the more than 11,000 apprehensions of unaccompanied Mexican minors during this fiscal year (October 1 through May 31), only 2,700 children (24% of all the apprehensions) reported being apprehended for the first time in their lives....The other three quarters of the apprehensions were of children who reported that they had been apprehended multiple times before — 15% were of children who had been apprehended at least six times. As a result of these multiple apprehensions, the total number of Mexican children caught at the border is lower than apprehension statistics show. However, the lack of fingerprinting by Mexican authorities makes it difficult to estimate an actual number of children crossing the border." Ana Gonzalez-Barrera, Jens Manuel Krogstad and Mark Hugo Lopez in Pew Research Center.

Other immigration reads:

Obama may find executive powers limited on resolving immigration. Roger Runningen and Lisa Lerer in Bloomberg.

Science interlude: What happens when adults attempt middle-school science experiments.

4. What's holding back the economy?

S&P says inequality is holding back economy. "The rising concentration of income among the top 1 percent of earners has contributed to S&P's cutting its growth estimates for the economy. In part because of the disparity, it estimates that the economy will grow at a 2.5 percent annual pace in the next decade, down from a forecast five years ago of a 2.8 percent rate....Part of the problem is that educational achievement has stalled in recent decades....By contrast, S&P concludes, heavy taxes that would be meant to reduce inequality could remove incentives for people to work and cause businesses to hire fewer employees." Josh Boak in the Associated Press.

Charts: Where did the Great Recession make inequality worse? Richard Florida in The Atlantic CityLab.

Why's the economy not roaring? Blame five sectors. "The following, however, are the five pieces that are the major culprits in the nation’s economic malaise, each vastly undershooting what they would look like in our model of a healthy economy: residential investment; consumption of durable goods; state and local government spending; business investment in equipment; and federal government spending. Together their deficit adds up to $845 billion — in other words, if those sectors returned to their typical share of economic potential, the economy wouldn’t just be doing well, it would be in an outright boom." Neil Irwin in The New York Times.

Charts: Have most economic indicators improved under Obama? "it’s also not that hard to find indicators that do not show the U.S. significantly better off. In the CNBC interview, Mr. Liesman rattled one off the top of his head to Mr. Obama....Adjusted for inflation, incomes declined around the turn of the century and never quite regained their previous peak under President George W. Bush....One challenge with judging the economic records of presidents, however, is that much of the economy is outside the control of the Commander in Chief....Evaluating economic indicators over the course of Mr. Obama’s presidency is especially perilous because he took office in the middle of a deep recession." Josh Zumbrun in The Wall Street Journal.

Other economic/financial reads:

Treasury hits 7-year low for borrowing thanks to economy. Ian Katz and Kasia Klimasinska in Bloomberg.

Bank lending still tight, San Francisco Fed finds. Pedro Nicolaci da Costa in The Wall Street Journal.

Great Recession cemented poor neighborhoods in the suburbs. Kriston Capps in The Atlantic CityLab.

AIG settles crisis-era suit. Leslie Scism in The Wall Street Journal.

Spoiled animal interlude: Deer fawn gets a belly rub — and won't let the belly rubber stop.

Wonkblog roundup

Studies: Thank the recession for the health spending slowdown. Jason Millman.

It’s not just San Francisco: how a shortage of housing is reshaping parts of Appalachia. Emily Badger.

Even marijuana opponents concede that pot has gone mainstream. Christopher Ingraham.

You only name that data once. Christopher Ingraham.

Et Cetera

As oysters die, climate policy goes on a slump. Coral Davenport in The New York Times.

Argentina launches investigation into holdouts' investments. Sarah Marsh and Eliana Raszewski in Reuters.

GM says DOJ seeks subprime loan records. Tim Higgins and Sarah Mulholland in Bloomberg.

Obama’s nominees are left twisting in the wind. Al Kamen and Colby Itkowitz in The Washington Post.

Why Obama saying "torture" matters. James Oliphant in National Journal.

U.S. chicken farmers latest caught in Russia sanctions crosshair. Tom Polansek and Karl Plume in Reuters.

Got tips, additions, or comments? E-mail us.

Wonkbook is produced with help from Michelle Williams and Ryan McCarthy.

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