Senator McCain’s scold

He told fellow senators, essentially, to get over themselves and get serious.

There has been so much manufactured drama in politics and political punditry for so long now, it’s refreshing when events that happen in real time for Americans to witness firsthand are naturally dramatic and actually inspiring. Sen. John McCain’s return to DC from surgery following a brain cancer diagnosis, his appearance coming just in time to cast the pivotal vote on a measure to continue debate on repealing and replacing Obamacare, restored maturity to the floor of the Senate. And much needed gravity.

Here’s what he said, in full.

“I’ve known and admired men and women in the Senate who played much more than a small role in our history, true statesmen, giants of American politics. They came from both parties, and from various backgrounds. Their ambitions were frequently in conflict. They held different views on the issues of the day. And they often had very serious disagreements about how best to serve the national interest.

 

“But they knew that however sharp and heartfelt their disputes, however keen their ambitions, they had an obligation to work collaboratively to ensure the Senate discharged its constitutional responsibilities effectively. Our responsibilities are important, vitally important, to the continued success of our Republic. And our arcane rules and customs are deliberately intended to require broad cooperation to function well at all. The most revered members of this institution accepted the necessity of compromise in order to make incremental progress on solving America’s problems and to defend her from her adversaries.

 

“That principled mindset, and the service of our predecessors who possessed it, come to mind when I hear the Senate referred to as the world’s greatest deliberative body. I’m not sure we can claim that distinction with a straight face today.

 

“I’m sure it wasn’t always deserved in previous eras either. But I’m sure there have been times when it was, and I was privileged to witness some of those occasions.

 

“Our deliberations today – not just our debates, but the exercise of all our responsibilities – authorizing government policies, appropriating the funds to implement them, exercising our advice and consent role – are often lively and interesting. They can be sincere and principled. But they are more partisan, more tribal more of the time than any other time I remember. Our deliberations can still be important and useful, but I think we’d all agree they haven’t been overburdened by greatness lately. And right now they aren’t producing much for the American people.

 

“Both sides have let this happen. Let’s leave the history of who shot first to the historians. I suspect they’ll find we all conspired in our decline – either by deliberate actions or neglect. We’ve all played some role in it. Certainly I have. Sometimes, I’ve let my passion rule my reason. Sometimes, I made it harder to find common ground because of something harsh I said to a colleague. Sometimes, I wanted to win more for the sake of winning than to achieve a contested policy.

 

“Incremental progress, compromises that each side criticize but also accept, just plain muddling through to chip away at problems and keep our enemies from doing their worst isn’t glamorous or exciting. It doesn’t feel like a political triumph. But it’s usually the most we can expect from our system of government, operating in a country as diverse and quarrelsome and free as ours.

 

“Considering the injustice and cruelties inflicted by autocratic governments, and how corruptible human nature can be, the problem solving our system does make possible, the fitful progress it produces, and the liberty and justice it preserves, is a magnificent achievement.

 

“Our system doesn’t depend on our nobility. It accounts for our imperfections, and gives an order to our individual strivings that has helped make ours the most powerful and prosperous society on earth. It is our responsibility to preserve that, even when it requires us to do something less satisfying than ‘winning.’ Even when we must give a little to get a little. Even when our efforts manage just three yards and a cloud of dust, while critics on both sides denounce us for timidity, for our failure to ‘triumph.’

 

“I hope we can again rely on humility, on our need to cooperate, on our dependence on each other to learn how to trust each other again and by so doing better serve the people who elected us. Stop listening to the bombastic loudmouths on the radio and television and the Internet. To hell with them. They don’t want anything done for the public good. Our incapacity is their livelihood.

 

“Let’s trust each other. Let’s return to regular order. We’ve been spinning our wheels on too many important issues because we keep trying to find a way to win without help from across the aisle. That’s an approach that’s been employed by both sides, mandating legislation from the top down, without any support from the other side, with all the parliamentary maneuvers that requires.

 

“We’re getting nothing done.

Right. Thank you for stating that so starkly and honestly. Each election cycle, general or mid-term, national or local, brings another round of promises to change things that never change. McCain has been in government long enough to know that and see the best and worst of it all. And he delivered a ‘come to Jesus moment’ to his colleagues, a ‘for crying out loud’ plea to return to civility and honor and statesmanship.

That was so needed, even though it didn’t seem to make a difference, in the end, since the repeal failed. McCain’s speech was ennobling, it was heard, written into the record, and noted by many people and commentators looking for leadership.

Sen. John McCain on Tuesday in the Senate gave one of the great speeches of American history. Its content was an almost perfect distillation of the career-long themes of this remarkable, infuriating, courageous, temperamental, wise, headstrong, indefatigable patriot.

 

McCain has always seemed to operate according to an internal logical consistency whose existence few could doubt but even fewer could fully fathom. The logic’s premises all seem to reside in a five-dimensional Rubik’s Cube, its colored tiles always shifting around, inside McCain’s mind and psyche.

 

What is discernible in this enigma, indeed obvious, is that the logic’s lodestar, the lodestar of McCain’s very existence, is an almost heart-breakingly deep love of his particular country – not because it is his country, but because it is a noble one…

 

But this speech, this raw but contemplative message to colleagues and countrymen, contained the clearest and most accessible exposition of McCainism imaginable.

It is a “privilege,” he said, “to play a small role in the history of the country I love.” He paid homage to senators “who played much more than a small role in our history, true statesmen, giants of American politics.”

Yes. Focus on statesmanship. This was a ‘civic homily’, says Quin Hillyer.

The final passages of McCain’s civic homily came straight from the very soul of a man who, though self-admittedly flawed, has served this nation with a steadfastness and grit beyond most imagining. He served it because, with every fiber of his being, he believes it, believes us, to be morally worthy of selfless service.

 

He is right about that, too. To wit:

 

“America has made a greater contribution than any other nation to an international order that has liberated more people from tyranny and poverty than ever before in history. We have been the greatest example, the greatest supporter and the greatest defender of that order. We aren’t afraid. We don’t covet other people’s land and wealth. We don’t hide behind walls. We breach them. We are a blessing to humanity.”

 

Yes, we Americans are a blessing to humanity, no matter how many academics and agitators mendaciously say the opposite. And for some 60 adult years of sharp-elbowed, sharp-tongued dedication to what he likes to call “a cause greater than self,” John McCain has been a sometimes cantankerous, more-often captivating, blessing to America – and thus a blessing to a whole world made better by America’s presence in it.

 

And he’s not finished serving — no, not yet.

Hopefully, he has inspired many colleagues in the Senate to start.

Little Sisters have new champions, defenders in court

And one fewer Justice on the high court.

On Thursday of last week, Women Speak for Themselves (WSFT) launched a campaign, loosely aligned with Valentine’s Day weekend and beyond, to ‘show a little love to the Little Sisters‘. It coincided with a new website for WSFT, loaded with resources and links to amicus briefs its founder filed at the Supreme Court, including this latest one on behalf of the Little Sisters in their struggle to uphold their religious freedom rights. Two days later, Supreme Court Justice Antonin Scalia, great religious freedom defender, suddenly and unexpectedly died.

Why are the Little Sisters of the Poor even in court in the first place? Especially the court system at different levels, reaching all the way to the Supreme Court, doing whatever they can to save their nearly two centuries long ministry to the poor from the threat of government overreach that threatens their services and institutions? Why would the government even do that?

Let’s review. (It’s stunning that we’re still in this situation more than four years after the federal fiat known as the HHS Mandate was issued by the administration’s Department of Health and Human Services, as a contraception delivery scheme slipped into the Affordable Care Act, known as Obamacare.)

For clarity and accessibility, this HHS Info Central has it all: graphics, charts, court challenges, case names and dates and outcomes or facts about pending hearings. It’s a ‘what’s wrong with this picture?’ snapshot of the HHS Mandate in Obamacare.

The Little Sisters of the Poor represent the most emblematic case. By far.

In November 2015…

the U.S. Supreme Court agreed to take up the case of the Little Sisters of the Poor, a group of Catholic nuns facing tens of millions of dollars in IRS fines because they cannot, according to their faith, include contraceptives in their employee health plan. This is the second time the Sisters have been forced to ask the Supreme Court for protection against the government’s HHS Mandate. The Court’s decision will finally resolve the crucial question of whether governmental agencies can, wholly without legislative oversight, needlessly force religious ministries to violate their faith.

Yes, that’s explicitly the situation.

The Little Sisters, who care for more than 13,000 of the elderly poor around the world, had no choice but to appeal to the Supreme Court due to the government’s refusal to exempt them from the HHS mandate, which is currently in its 9th unacceptable iteration. The mandate forces the Little Sisters to authorize the government to use the Sister’s employee healthcare plan to provide contraceptives and abortion-inducing drugs – a violation of their faith – or pay massive fines, which would threaten their religious mission. The Supreme Court entered a temporary order protecting the nuns in January, 2014, but the government has continued litigating, asking lower courts to remove that protection. (emphasis added)

“As Little Sisters of the Poor, we offer the neediest elderly of every race and religion a home where they are welcomed as Christ. We perform this loving ministry because of our faith and cannot possibly choose between our care for the elderly poor and our faith, and we shouldn’t have to,” said Sr. Loraine Marie Maguire, Mother Provincial of the Little Sisters of the Poor. “All we ask is that our rights not be taken away. The government exempts large corporations, small businesses, and other religious ministries from what they are imposing on us – we just want to keep serving the elderly poor as we have always done for 175 years. We look forward to the Supreme Court hearing our case, and pray for God’s protection of our ministry.”

They don’t want to be in court. They didn’t pick this fight. They’re about the last people in public service the government should be forcing to deliver contraception and morning after pills in their healthcare plans. And yet, here we are.

So with the Supreme Court taking on the case again, legal scholar Helen Alvare saw the opportunity to present a real challenge to the government’s claim or defense that it has a “compelling interest” in a mandate that burdens religious freedom, one of a two-prong test the Religious Freedom Restoration Act requires for government to enforce anything that violates so fundamental a protected liberty.

First, fleshing out the contents of the “compelling state interest” requirement will provide much-needed guidance in future religious freedom cases. Lawyers are accustomed to encountering compelling state interest analyses in due process and equal protection cases involving fundamental constitutional rights and suspect classifications. There are a significant number of cases interpreting the meaning of a “compelling state interest” in the areas of speech or racial discrimination. But there are fewer in the area of religious freedom…

Second, a “compelling state interest” analysis in the context of a mandate case would shed light on the government’s tendency – especially when contraception programs are concerned – to make extravagant claims without empirical foundation, while threatening the religious freedom of institutions providing unparalleled amounts of service to women. Governments at both the federal and state level have fallen into the habit of using contraception to “signal” their commitment to women’s rights. The facts on the ground, however, are much more complex.

Enter Women Speak for Themselves, which started as an open letter in response to high level women in government purporting to represent women’s rights and claims on services that really didn’t represent vast numbers of American women outside the Washington beltway and across the country. Helen Alvare was co-author of that letter with another lawyer, Kim Daniels. The open letter turned into a grassroots movement that has spread across the country, across demographics and age groups and backgrounds of women engaging these issues at their most local levels and on the national level, through media and initiatives that allow them to contribute to and change the conversation by sharing their lived experiences. It’s a remarkable range of stories from women speaking for women and their families and health and rights.

The Little Sisters are among those for whom they speak. These nuns don’t seek nor want the spotlight, but Pope Francis paid them a surprise visit last September while in DC during his US apostolic journey, and House Speaker Paul Ryan featured them as his guests among invited attendees – in a moment of irony – to President Obama’s final State of the Union Address in January.

Interestingly, the American Spectator noticed, and pointed out that Justice Sonia Sotomayor was the one who granted them a temporary injunction against punitive fines for not following the mandate, as they pursued permanent relief. Her vote will be needed again when the case is argued before the Supreme Court during Holy Week, in March 2016. Because if she comes down on the liberal side of reading religious freedom as applied to this case, and the court votes 4-4 in the absence of Justice Scalia, religious liberty will face a ‘calamity‘.

The Little Sisters would be forced to violate their faith by subsidizing the distribution of abortifacients, sterilization, and contraceptives to their employees or face ruinous IRS fines. The government exempts a wide variety of religious ministries from the contraception mandate. But the Obama administration insisted that this organization run by Catholic nuns, which has been providing free health care to elderly patients of every race and religion since 1839, is somehow not eligible for the usual exemption. Incredibly, the Tenth Circuit Court of Appeals ruled in favor of the government.

…Before Justice Scalia’s tragic death, there was a reasonable chance that the Little Sisters and six other organizations with which the Court consolidated their case might prevail.

Now, unless one of the four liberal justices — Breyer, Ginsburg, Kagan, and Sotomayor — casts an uncharacteristically nonpartisan vote, a 4-4 vote is all but inevitable.

For once, instead of Justice Anthony Kennedy holding the pivotal swing vote, it may rest with Sotomayor. Or Chief Justice John Roberts, who can work to sway the court in a couple of directions to avoid a calamity.

In the immediate aftermath of Justice Scalia’s untimely death, the Little Sisters of the Poor (with the help of technically proficient friends) released this new website making this whole story much pithier and easier to grasp than ever. Have a look, it’s all there.

Who they are:

The Little Sisters of the Poor have dedicated their lives to living with and caring for the elderly poor. They have been focused on service, not advocacy or policy, and, in this case, they’ve exhausted every option possible before going to court.

What this case is about:

After promising that the Little Sisters’ religious beliefs would be protected, the government created a new regulation requiring the Little Sisters to change their healthcare plan to offer services that violate Catholic teaching. But 1 in 3 Americans do not have a plan that is subject to the mandate HHS is fighting so hard to force the Little Sisters of the Poor to follow. Exxon, Chevron, and Pepsi — as well as other large corporations — are exempt from the mandate, because they never changed their plans and are grandfathered. And the government is not even requiring our own US military to provide these services through their family insurance.

The government is arguing that since it has offered to reimburse the costs of the services it wants the Little Sisters to provide, they should have no moral objection to offering them. The Little Sisters are saying this is not about money, but conscience, and whether they should be forced to change their healthcare plan to offer services they have a moral objection to when those services could be provided more effectively through the government’s healthcare exchange.

And what the solution may, or can, be.

There is an easy solution that protects the Little Sisters’ religious freedom and the right of the government to offer these services to women who want them. Rather than trying to force religious plans to offer these services, the better solution is for the government to provide these services through the ACA healthcare exchange to any employees who want them but can’t get them through employer plans.

The Little Sisters are not trying to prevent the government from providing these services, but object to the government’s insisting the Little Sisters provide them (especially since the government has already refused to ensure that those free services are provided to one in three Americans). Giving all women access to contraception through the healthcare exchange is a simpler and fairer way for the government to provide these services to more women while protecting the religious freedom of the Little Sisters, who never wanted this fight and just want to get back to caring for the elderly in need.

They can use all the help and advocacy they can get. Women Speak for Themselves is providing the vehicle, and the avenue. It’s up to people to drive it home.

 

Obamacare’s mounting problems

It’s not really news anymore that signup for healthcare as promised and touted by the president has hit another glitch. But that it did on deadline day generated at least some headlines.

Like Politico’s. The bottom line is more the story than the body of the story.

Public opinion polls have shown many Americans are still opposed to the law. A new Washington Post-ABC poll released Monday showed approval rising slightly, with 49 in favor and 48 opposed, but many other surveys have found more skepticism.

So, fair assessment is that we’re about evenly split over Obamacare. Allegedly.

The issues I have with it relate to life, true healthcare coverage and accessibility, and conscience rights, as regular readers here know. Those have been highlighted in the HHS mandate lawsuits over the past two years.

Here’s another detailed rundown of what’s wrong with the Affordable Care Act, which few people have actually read.

Once the Affordable Care Act became law in March 2010, the two chambers of Congress have held diametrically opposed views. The House, under Republican control since 2011, has voted many times to repeal the entire act; the Democratic-controlled Senate has resisted changes.

The Catholic bishops’ conference has not joined in either agenda. Supporters of national efforts to achieve universal health coverage for almost a century, the bishops have urged specific reforms in accord with the moral principles they articulated during consideration of the A.C.A. The bishops support basic, life-affirming health coverage for everyone, including immigrants; compliance with longstanding federal policies on abortion funding; and respect for rights of conscience.

The A.C.A. remains deficient in these areas. The bishops have urged Congress to pursue comprehensive immigration reform, including reform of the way our health laws treat immigrant families. On abortion issues—both federal funding and conscience rights—the implementation of the A.C.A. over four years has brought its defects into sharper focus.

One barrier to progress on the act’s problems regarding abortion is that many, including some Catholics, are confused about those problems or deny that they exist. Here, then, are the abortion-related problems the bishops’ conference finds in the A.C.A.

Click on that link.  Read the article. Rich Doerflinger counts the ways.

1) Under existing federal jurisprudence, federal funds appropriated by the A.C.A. are available for elective abortions.

He doesn’t just make the claim, he backs it up. Do read on, especially about the protections put in place and upheld for decades under the Hyde Amendment. It’s very instructive.

2) The act violates the policy of all other federal health programs by using federal funds for health plans covering elective abortions.

Here’s just a snip from that section:

The A.C.A. forbids insurers to inform consumers about their abortion coverage except as part of the long list of benefits provided to those already enrolling. It also forbids them to reveal how much of the enrollee’s premium will go into the separate account for abortions. Thus a common impression that enrollees will write a “separate check” for abortion, which pro-life dissenters might try refusing to sign, is apparently false—the funds are separated at the insurer’s end. Some states have said that every health plan on their exchange will cover elective abortions.

This is troubling in light of polling commissioned by the bishops’ conference during consideration of the A.C.A. Most survey respondents opposed measures that require Americans to support abortion with their tax dollars or their premiums; 68 percent said that if the choice were theirs they would not want abortion in their health coverage. On each question, women gave stronger pro-life responses than men. The majority of American women who oppose abortion coverage will now often face a sad dilemma: Either pay for abortions anyway or have greatly reduced options when looking for a health plan to meet their families’ needs.

Next:

3) The A.C.A. lacks important conscience protections.

Most of this is contained within the HHS mandate, a ‘birth control delivery scheme’ objected to by a great number of Americans for many reasons, most enumerated in those lawsuits linked above. But note this, which isn’t well known (along with most everything else in Doerflinger’s article):

More broadly, the final version of the A.C.A. deleted an important conscience provision from the original House-passed bill, which incorporated the Hyde/Weldon Amendment that has been part of Labor/H.H.S. appropriations bills since 2004. That law withholds Labor/H.H.S. funds from a federal agency or program or a state or local government that discriminates against health care entities that refuse to provide, refer for, pay for or provide coverage of abortion. Like the Hyde Amendment on funding, the Hyde/Weldon policy on conscience does not govern funds appropriated by the A.C.A.

And then:

4) Finally, it has been said that federal judges in Virginia and Ohio have ruled there is no abortion funding in the A.C.A. That is not quite true.

He explains. And then, the bottom line:

The great majority of American men and women do not want to support abortion with their taxes or health premiums. A recent poll of obstetrician-gynecologists showed that only 14 percent perform abortions, and the latest abortion statistics show abortion rates and the number of abortion providers at their lowest since 1973. To all but the most committed enthusiasts for abortion, that tipping point cannot arrive too soon.

HHS mandate: Supreme Court begins to hear arguments

Or put bluntly, the government mandate to violate your conscience.

It’s as simple as that. No matter how much spin has been spun, and there has been much, it comes down to this.

Do Americans enjoy religious-liberty protections when they are at church, or do Americans enjoy religious-liberty protections when they are Americans?

That’s it. The Supreme Court hears oral arguments this week on that question.

Hobby Lobby is owned by a trust controlled by the Green family, observant Christians who make a point of carrying their faith into the marketplace, stocking Christian products and closing their stores on Sundays. They refuse to comply with parts of the Affordable Care Act’s contraception mandate, specifically the provision of products that they regard as actual or potential abortifacients, including intrauterine devices and the so-called morning-after pill, both of which can function to prevent an embryo from implanting in the uterus and thus surviving. Whether these products are properly regarded as abortifacients is a matter of some controversy, but the relevant question is not a technical one about the mechanisms by which these drugs and devices prevent pregnancy. Federal law protects religious liberty with no proviso that matters of conscience must be argued to the satisfaction of the American College of Obstetricians and Gynecologists before legal protections kick in.

Now here’s the money paragraph, the important explanation of the whole thing that helps understand what’s at stake in the claims to protection against government encroachment of religious freedom and conscience rights. Those claims are grounded in the Constitution and RFRA, the Religious Freedom Restoration Act.

While the issue is at heart a constitutional one, Hobby Lobby is not in this instance appealing to the First Amendment but rather to the Religious Freedom Restoration Act, which was passed by a unanimous House, a near-unanimous Senate, signed into law by President Bill Clinton, and certified as constitutional as applied to the federal government in a 2006 Supreme Court decision. The act sets a high standard that the federal government must meet when it burdens the free exercise of religion and was enacted in response to court decisions that had narrowed First Amendment protections. It is intended to reinstate the “Sherbert test,” which holds that in a case in which the involved parties hold a sincere religious belief and the federal government places a substantial burden on the exercise of that belief, then the federal government must both prove a “compelling state interest” in burdening religious exercise and — perhaps most important in this case — demonstrate that it has sought to secure that compelling interest in the least restrictive fashion.

That’s a two-pronged test the government cannot possibly pass in imposing the HHS mandate.

While it is hardly obvious that there is a compelling state interest in subsidizing access to contraception, which is widely available and inexpensive (a woman who required an emergency dose of Plan B once a quarter would still spend more annually on toothpaste), it is entirely implausible that the least restrictive way of achieving that subsidy is a nationwide legal mandate for coverage of those products at no out-of-pocket expense by every employer in the country offering health insurance — and the federal government will penalize them if they don’t offer it.

So…

Whatever the federal government might have done differently, the express purpose of the Religious Freedom Restoration Act is to prevent it from doing what it has done in the Affordable Care Act: ride roughshod over the free exercise of religion whenever doing so proves politically convenient.

The case is about more than the Green family and Hobby Lobby. There are in fact 94 related cases involving 300 plaintiffs representing nearly half the states, from Southern Baptists such as the Greens to Catholic nonprofits and Amish cabinetmakers. The objections to the ACA mandate are neither narrow nor sectarian.

Split decisions from the appellate courts all but guaranteed a Supreme Court hearing of the issue, which will begin tomorrow. The decision will be only incidentally about what kind of health insurance we have — it will be about what kind of country we have.

So here we go.

Whatever the federal government might have done differently, the express purpose of the Religious Freedom Restoration Act is to prevent it from doing what it has done in the Affordable Care Act: ride roughshod over the free exercise of religion whenever doing so proves politically convenient.

The case is about more than the Green family and Hobby Lobby. There are in fact 94 related cases involving 300 plaintiffs representing nearly half the states, from Southern Baptists such as the Greens to Catholic nonprofits and Amish cabinetmakers. The objections to the ACA mandate are neither narrow nor sectarian.

Split decisions from the appellate courts all but guaranteed a Supreme Court hearing of the issue, which will begin tomorrow. The decision will be only incidentally about what kind of health insurance we have — it will be about what kind of country we have.

This is about that, and more.

The United States is one of the most religiously diverse nations on earth. People of a vast array of traditions of faith live here in a harmony that would have been unthinkable in most of the world for most of human history.

One of the ways America has fostered and protected this diversity is by nurturing a robust understanding of religious liberty that includes granting certain exemptions to people who need them in order to be true to their religious faith. Religious exemptions protect people in situations where legislative or executive acts might otherwise unnecessarily force them to violate their consciences…

The United States is one of the most religiously diverse nations on earth. People of a vast array of traditions of faith live here in a harmony that would have been unthinkable in most of the world for most of human history.

One of the ways America has fostered and protected this diversity is by nurturing a robust understanding of religious liberty that includes granting certain exemptions to people who need them in order to be true to their religious faith. Religious exemptions protect people in situations where legislative or executive acts might otherwise unnecessarily force them to violate their consciences.

In a free, representative republic, it’s hard to imagine why or how government acts would possibly force citizens to violate their consciences. Surely, that cannot stand.

The reason that government is likely to lose in the Hobby Lobby case, however, is that there are so many ways for the government to distribute these drugs—on its own exchanges, through the Title X family-planning program and by cooperating with willing distributors—that do not require the forced participation of conscientious objectors. That presumably is why an effort is now being made to cut back on the robust conception of religious freedom that once united Americans of all faiths and even unbelievers.

The Establishment Clause argument should also fail. That provision exists to prevent the establishment of a national religion or the granting of superior standing to a religion that happens to have the support of most citizens. It would be perverse for a court to use it to punish the laudable practice—dating all the way back to George Washington’s decision to excuse Quakers from his army—of accommodating the free exercise of religion by protecting people whose religious beliefs or practices are not shared by the majority from being compelled even in the absence of a compelling reason to violate their consciences.

The two-pronged test of proving a compelling government interest in pursuing an edict that requires citizens to violate their religious beliefs, and then proving that the means of doing so constitute the least restrictive means possible to do so, is a test the government cannot pass with the HHS mandate, without the help of an activist court.

Oral arguments begin. The court ruling will come later. Stay tuned.

Little Sisters vs. big government

As they say in politics, the optics are bad in this one.

A legal expert on my radio show this week said their firm, extensively involved in lawsuits against the administration’s HHS mandate, said they were frankly surprised that the administration continued to push forward on the unprecedented mandate after the 2012 election at all, much less pushing it vigorously and committing teams of lawyers to defending it in courts across the country in 91 different lawsuits representing institutions, corporations, small business owners and individuals. But they have.

It was always destined to go to the Supreme Court, and will in March, since the high court decided to hear two key cases involving what some call the ‘contraceptive mandate’ and others the ‘contraception delivery scheme mandate’. It’s stayed off the public radar for the most part, largely due to media ignoring it and Americans being inundated with so many other cases of big government overreach, in other areas.

That hasn’t stopped the vigorous movement to hold off, reverse, overturn, or declare unconstitutional the Obamacare HHS mandate. It’s all here.

Including the New Year’s Eve ruling by Supreme Court Justice Sonia Sotomayor in favor of the Little Sisters of the Poor, who were hesitant to even go to court, their lawyers tell me. They’d rather be doing everything they’ve done for 175 years to take care of the sick, elderly, dying, and just caring for people. They didn’t want this fight. But they won’t give up on it the way they never give up on the sick and needy.

The Wall Street Journal reports:

The Little Sisters of the Poor run a nonprofit Colorado nursing home and hospice and therefore ought to be exempt under what the White House calls its “accommodation” for religiously affiliated institutions like parochial schools, hospitals and charities.

The problem is that to qualify under the “accommodation,” religious organizations must sign a legal contract with their insurer certifying that the religious organizations refuse to subsidize contraceptive services. “This certification is an instrument under which the plan is operated,” the contract notes, then informs the insurer of its “obligations” under the rules.

Those include a command that the insurer “shall provide” contraception to all enrollees, supposedly independently and for free. The political point of the accommodation was to pretend that the costs of contraception or abortifacients are nominally carried by a third-party corporation, but the insurers are really only the middle men. The Little Sisters thus argue that signing the certification contract directs others to provide birth control in their place and makes them complicit.

Boiled down, the Justice Department’s legal response on Friday was: Shut up and sign the form.

Yes, ‘it’s just a piece of paper,’ they contended.

Within hours, dozens of news stories appeared online that put the sisters at the center of a contentious national debate on what constitutes strong-arming a religious congregation to provide contraceptives and other abortion-inducing drugs to its employees.

The sticking point for both sides is a waiver/authorization form that the Little Sisters must fill out to take advantage of a so-called accommodation for non-profit ministries. The form, however, has a dual purpose—it signals opposition to the mandate, but also authorizes a third-party to provide the services it finds morally objectionable.

“The Little Sisters and other applicants cannot execute the form because they cannot deputize a third party to sin on their behalf,” stated the Becket Fund, which represents the Little Sisters, in a brief responding to the Obama administration. The group added that the administration is “simply blind to the religious exercise at issue.”

The Obama administration minimalized the importance of the form, enticing the Little Sisters to “secure for themselves the relief they seek” …“with the stroke of their own pen.”

Mark Rienzi, senior counsel for the Becket Fund who filed the lawsuit on behalf of the nuns, said in a statement Friday that the administration was “trying to bully nuns into violating their religious beliefs.”

If the sisters don’t sign the waiver/authorization form, or if the courts don’t uphold the injunction, they could be subject to devastating IRS penalties that could add up to millions of dollars a year.

As Fr. Dwight Longenecker notes, we’ve seen this scenario before.

Where have we heard this before? Henry VIII and the Act of Supremacy. In November 1534 the English Parliament decreed that King Henry VIII was the “only supreme head on earth of the Church of England.” Everyone who held public office had to take the oath of supremacy, and most did. After all, it was “only a few words…only a pen stroke if you like…only a piece of paper.” At first the authorities even made it easier for people with tender consciences. A clause was added to the claim that the king was the head of the church: “insofar as the law of God allows.” Many of the clergy took the oath while they kept their fingers crossed with the compromise clause.

Once they got most to comply the compromise clause was removed. Those who had compromised now found that they had sworn the oath in the original form and they were held to it. When Henry’s illegitimate wicked daughter Elizabeth came to the throne the Oath of Supremacy was extended to schoolteachers, local authorities, university students–virtually anyone in any position of authority. To refuse to take the oath was treason, and the oath was demanded by the officers of Elizabeth’s police state.

The issue here is of the tactics used to suppress opposition. An oppressive government will insist that those with religious objections conform. They will say, “It is only a piece of paper. It is a mere pen stroke. What harm can there be in taking this way out we have offered you?” However, if it is a mere pen stroke or only a piece of paper, then why does the government insist on conformity of the Little Sisters of the Poor? If it is only a piece of paper or a pen stroke, why bother? Because it is most assuredly not a mere piece of paper or a pen stroke. It is the violation of the sister’s conscience by the government authorities. Why does the federal government insist on this detail? Because they know that if one group is allowed to have an exemption on religious grounds, then all groups may claim a similar exemption because of religious beliefs.

If this religious belief is honored, then every other religious belief on every other issue must also be honored. What is at stake in this argument, therefore, is not the comparatively minor issue of whether some Catholic sisters should authorize a third party to pay for contraceptive services, but whether any group, individual or business has the right to opt out of a government program which imposes on their lives and their beliefs. This government, like Henry VIII’s and Elizabeth I’s and all other tyrants, says “No. The will of the state takes precedence over religious opinions. You will conform.”

Archbishop Joseph Kurtz, newly elected head of the US bishops conference, the body which found unusual unanimity in standing against this violation of religious freedom and basic conscience rights, explains.

Pope Francis inspires Catholics and non-Catholics alike with his focus on the gospel call to serve “the least of these.”

Our faith calls us to put first the needs of our brothers and sisters who suffer in poverty, and Catholics are justly proud of our network of schools, hospitals and social service ministries that work every day to help the poor and vulnerable.

Yet the ability of these ministries to live out the fullness of our faith is in jeopardy.

The mandate from the Department of Health and Human Services forces countless Catholic schools, hospitals, and social service organizations to participate in providing employees with abortifacient drugs and devices, sterilization, and contraception in violation of Catholic teaching. The mandate went into effect on Jan. 1; ministries now are faced with the choice of violating our deeply held beliefs or paying crippling fines.

If these ministries don’t comply, the financial penalties may mean that some may have to close their doors. As that happens, the poor and those who serve them will be hurt the most. Forcing our ministries to divert funds from serving their neighbors to paying government fines will have real consequences for real people.

Archbishop Kurtz, a wise, kind, gentle and devoted shepherd, is trying to strike the right balance while serving needs justly.

We have spent significant time and effort seeking sincere dialogue with the Obama administration in hopes of preventing this impasse, and we are long-standing advocates of accessible, life-affirming health care. Yet our concerns continue to go unheard. The administration has crafted an “accommodation” that continues to compel our ministries to participate in providing drugs and services that violate our deeply held religious beliefs.

With the implementation date now upon us, we have made one more effort at dialogue, again asking President Obama to exempt nonprofit institutions caring for those in need from the harsh penalties imposed by the mandate.

The administration has shown flexibility in implementing other provisions of the Affordable Care Act, issuing numerous delays and exemptions for many employers and individuals.

We’re only asking that it offer that same consideration to those who want to live by their religious beliefs without facing government penalties for doing so…

On behalf of those served by our schools, hospitals and social service ministries, we will continue to resist the burdens imposed by the HHS mandate.

We hope and pray that the administration and Congress will protect us from those burdens, and that the courts will uphold our freedom to serve those who depend on us.

Some members of Congress are trying, relentlessly, to protect conscience rights and religious freedom. They need support and encouragement. Though everything is not political, everything is made political. In that world, the term ‘optics’ is often applied to actions that will be reported on and judged by the public.

The Little Sisters of the Poor in court seeking protection from administration lawyers is not good optics. To say the least.

Justice Sotomayor’s New Year’s Eve surprise ruling

Few knew she suddenly ruled against Obamacare’s HHS mandate. But they sure noticed her dancing in Times Square that night.

Nobody knew it was coming. So how odd it was to see the breaking news that Justice Sonia Sotomayor had just ruled to delay the Obamacare birth control mandate in th e waning hours of New Year’s Eve.

Sotomayor acted on a request from an organization of Catholic nuns in Denver, the Little Sisters of the Poor Home for the Aged. Its request for an emergency stay had been denied earlier in the day by a federal appeals court.

The government is “temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act,” Sotomayor said in the order.

Sotomayor, who was in New York Tuesday night to lead the final 60-second countdown and push the ceremonial button to signal the descent of the Times Square New Year’s Eve ball, gave government officials until 10 a.m. EST Friday to respond to her order.

I see this not three hours before that midnight ball drop in Times Square, not knowing she’s there. I’m watching Twitter and Facebook and online news sites erupt with word about the ruling. And then I see her dancing in Times Square.

What just happened?!

Becket Fund explains.

Tonight the Little Sisters of the Poor received a temporary injunction from the Supreme Court protecting them from the controversial HHS contraceptive mandate. The injunction means that the Little Sisters will not be forced to sign and deliver forms tonight authorizing and directing others to provide contraceptives, sterilizations and drugs and devices that cause abortions (see video).

”We are delighted that the Supreme Court has issued this order protecting the Little Sisters,” said Mark Rienzi, Senior Counsel for the Becket Fund. “The government has lots of ways to deliver contraceptives to people–it doesn’t need to force nuns to participate.”

The order was issued by Supreme Court Justice Sonia Sotomayor, who is the Justice assigned for emergency applications from the Tenth Circuit Court of Appeals. Justice Sotomayor also ordered the federal government to file a brief in response to the Little Sisters’ application.

Prior to the order, preliminary injunctions had been awarded in 18 of the 20 similar cases in which relief had been requested.

”Virtually every other party who asked for protection from the mandate has been given it,” said Rienzi. “It makes no sense for the Little Sisters to be singled out for fines and punishment before they can even finish their suit.”

The Little Sisters are joined in the lawsuit by religious health benefit providers, Christian Brothers Services, Christian Brothers Employee Benefits Trust. The Plaintiffs are also represented by Locke Lord, a national law firm, and by Kevin Walsh, a law professor at the University of Richmond.

To date, there are currently 91 lawsuits challenging the unconstitutional HHS mandate.

In fact, one expert told me Monday that he had expected the administration to drop the thing after winning the 2012 election, and admitted surprised that they’re as dug in as they are in pressing something so oddly ungrounded and without any merit whatsoever.

The Chicago Tribune editors published this editorial following Sotomayor’s ruling.

The administration has set out a complicated standard for whether a company or organization should be exempt from these rules. On one end stand for-profit corporations, which aren’t exempt. At the other end, churches and some other religious institutions, which are excused. In the middle are many groups that have a religious affiliation and a faith-based mission, such as Catholic-affiliated universities and hospitals, and the Little Sisters of the Poor in Colorado.

Earlier this week, Archbishop Joseph Kurtz, the head of the U.S. Conference of Catholic Bishops, complained in a letter to Obama that while the administration had “relaxed the rules” for many Americans’ health plans, “one category of Americans … has been left out in the cold: Those who, due to moral and religious conviction, cannot in good conscience comply” with the contraception mandate.

That provision, he added, “harshly and disproportionately penalizes those seeking to offer life-affirming health coverage in accord with the teachings of their faith.”

The administration has made numerous exceptions to the rules of Obamacare — including delay in the insurance mandate for employers and many individuals. About a year ago, the Department of Health and Human Services announced it would draw a distinction between religiously affiliated employers and secular employers. But it still sought a guarantee that their employees would have contraceptive coverage.

We’re not arguing against insurance coverage of contraceptives. But a government mandate that religious organizations violate the tenets of their faith is an unconstitutional reach.

Right. As they conclude, Obamacare is the law of the land. But the constitutional protection of religious freedom is more deeply and historically embedded in this country’s foundation, and there’s no defensible reason why it might be denied – or even challenged – now.

HHS mandate, the other Obamacare problem

The general public and the media are finally dealing with the reality of Obamacare. Great numbers of Americans have a nearly two year jump on that process.

To recap what many people probably forgot, the infamous HHS mandate was announced in January 2012, a throwdown to faith based institutions and employers requiring them to either violate their consciences or pay a prohibitive penalty. It signaled the government’s disregard for Constitutional and federal law protecting religious freedom rights. And it triggered an almost immediate response of legal challenges to the administrations’ audacious breach of those rights.

To date, this unconstitutional mandate in Obamacare has racked up 77 court cases with over 200 plaintiffs bringing suit against the administration. Most of which has flown under radar while the press wasn’t paying attention and Americans were going about their business. Except for the Americans who couldn’t conduct their business any longer without violating their conscience and deeply held beliefs, or paying a punitive fine for refusing to do so.

In every case, the government’s attorneys have had to defend in court the indefensible, and they’re losing in some significant cases and getting admonished by some judges. Like last week’s decision by the 7th Circuit Court

that found the Obama administration’s abortion pill mandate to be in violation of federal religious liberty protections. The court called the administration’s argument that religious freedom disappears when doing business “unsound and extraordinary.”

That’s right. The administration’s attorneys argued that when people enter into business, they check their religious freedom rights at the door. Breathtaking, really.

“All Americans, including job creators, should be free to honor God and live according to their faith,” said Senior Legal Counsel Matt Bowman, who argued before the 7th Circuit in May. “The court’s decision joins the majority of other rulings on the mandate, which have found it to excessively conflict with our nation’s guarantee of religious freedom to all Americans. The decision rightly foresees the dangers of allowing government to have this kind of power. If the government can force family business owners to act contrary to their deepest convictions under the threat of fining them out of business, it is a danger to everybody.”

Precisely. And that court said as much earlier in this case.

In January, the 7th Circuit issued an order in Grote Industries v. Sebelius that temporarily stopped enforcement of the mandate until appeals could be resolved.

“We hold that the plaintiffs–the business owners and their companies–may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religious exercise rights…,” the 7th Circuit’s decision states. “On the government’s understanding of religious liberty, a Jewish restaurant operating for profit could be denied the right to observe Kosher dietary restrictions. That cannot be right. There is nothing inherently incompatible between religious exercise and profit-seeking.”

I happened to plan Wednesday’s radio show this week as an update on the HHS mandate lawsuits, given all the news on that front lately while the rest of America has been focused on the other drastic consequences of Obamacare. Besides lead counsel Matt Bowman updating that 7th Circuit Court decision, I had Prof. Dwight Duncan on as a guest on constitutional law and the HHS mandate, the author of this article on religious freedom who most recently filed an amicus brief in the DC Circuit Gilardi decision that struck the mandate.

Prof. Duncan said it’s not up to judges and to government to decide if something violates Catholic moral teaching, it’s up to clergy and theologians to decide what’s moral, and that’s where the Religious Freedom Restoration Act kicks in. That federal, bi-partisan law passed under the presidency of Bill Clinton requires the government to prove a compelling interest in violating religious freedom rights, and that it’s going about it in the least restrictive means possible. This administration under this mandate can’t meet either of that two-pronged test.

The hour before the radio show went on the air Wednesday, the US bishops conference wrapped up their Fall meeting and released a ‘Special Message‘ on the HHS Mandate, reinforcing their commitment to defending and protecting religious freedom for institutions, employers and individuals in spite of government mandates that violate them. That statement played into discussions with both legal experts Matt Bowman and Dwight Duncan on the show that day.

But Thursday, Baltimore Archbishop William Lori, chairman of the committee on religious liberty for the US bishops, took time to come on the radio show to talk about that statement on the HHS mandate.

Here’s part of what it said:

Yet with its coercive HHS mandate, the government is refusing to uphold its obligation to respect the rights of religious believers. Beginning in March 2012, in United for Religious Freedom, we identified three basic problems with the HHS mandate: it establishes a false architecture of religious liberty that excludes our ministries and so reduces freedom of religion to freedom of worship; it compels our ministries to participate in providing employees with abortifacient drugs and devices, sterilization, and contraception, which violates our deeply-held beliefs; and it compels our faithful people in business to act against our teachings, failing to provide them any exemption at all.

Despite our repeated efforts to work and dialogue toward a solution, those problems remain. Not only does the mandate undermine our ministries’ ability to witness to our faith, which is their core mission, but the penalties it imposes also lay a great burden on those ministries, threatening their very ability to survive and to serve the many who rely on their care.

The current impasse is all the more frustrating because the Catholic Church has long been a leading provider of, and advocate for, accessible, life-affirming health care. We would have preferred to spend these recent past years working toward this shared goal instead of resisting this intrusion into our religious liberty. We have been forced to devote time and resources to a conflict we did not start nor seek.

As the government’s implementation of the mandate against us approaches, we bishops stand united in our resolve to resist this heavy burden and protect our religious freedom. Even as each bishop struggles to address the mandate, together we are striving to develop alternate avenues of response to this difficult situation. We seek to answer the Gospel call to serve our neighbors, meet our obligation to provide our people with just health insurance, protect our religious freedom, and not be coerced to violate our consciences. We remain grateful for the unity we share in this endeavor with Americans of all other faiths, and even with those of no faith at all. It is our hope that our ministries and lay faithful will be able to continue providing insurance in a manner consistent with the faith of our Church. We will continue our efforts in Congress and especially with the promising initiatives in the courts to protect the religious freedom that ensures our ability to fulfill the Gospel by serving the common good.

Here’s what Archbishop Lori said on my radio show. “We’re determined to continue our ministries according to the Gospel of our faith. This is an important message to send, and important to send it unanimously. The big problem with the HHS mandate is that it’s the government dividing up our ministries. If you’re serving the public, you have to play by rules other than your own. That’s a fundamental problem and a great burden on our religious liberty.

“I do believe we’ve raised a lot of awareness of a lot of Catholics, underneath there’s a ground shift in our ability to provide educational services, healing services. The government says we have to provide things that go against our beliefs and go against human dignity. It’s a difficult climate in Congress to get beyond the partisan labels. But we’re not coming at this from a partisan point of view, it’s fundamental.

“Since 1919, the bishops have been on this, saying accessible health care has been a really important thing for people everywhere. We have certainly have been willing and able to advance that everywhere. Our hospitals and health clinics do untold amounts of uncompensated health care every year. And in the pursuit of this very laudable goal, we find ourselves sidetracked by this mandate, absorbing our time, absorbing our resources, when in fact we would prefer to put that same time and energy into serving the poor and the needy.

“How ironic that when the government decides to do accessible health care it decides to put one of its staunchest allies in its sights. The Catholic Church is the largest provider of health care, social services and education.

“Here’s where Pope Francis is so beautiful, in many ways, but especially this. He says ‘bring the Gospel out of the four walls of the Church into the world. And that’s what we passionately believe we should be doing. We do it in health care, we do it in social services, we do it in education. But we’re being told that by doing that, we play by other rules, by government rules. We compete on contracts, but we compete on the basis of excellence. And just because we do this, doesn’t mean we have to surrender our faith.”

The bishops ended their ‘Special Message’ with this:

We seek to answer the Gospel call to serve our neighbors, meet our obligation to provide our people with just health insurance, protect our religious freedom, and not be coerced to violate our consciences. We remain grateful for the unity we share in this endeavor with Americans of all other faiths, and even with those of no faith at all. It is our hope that our ministries and lay faithful will be able to continue providing insurance in a manner consistent with the faith of our Church. We will continue our efforts in Congress and especially with the promising initiatives in the courts to protect the religious freedom that ensures our ability to fulfill the Gospel by serving the common good.

It’s just one of the fallouts of Obamacare, and the one long forgotten by some. But it has endured and will, in the effort of Americans committed to do good works informed by faith and moral principles in serving people in need, without coercion by government.

And by the way, this mandate is inevitably headed to the Supreme Court.

What Obamacare has wrought

No one knows yet just how much worse this is going to get.

But the people the healthcare overhaul was supposed to help are mostly not being helped, and the people who were supposedly safe in the system they preferred have mostly lost that safe haven. President Obama was not able to deliver what he promised, and even when he was warned to stop promising it, he persisted.

He was the one who made it sharply and divisively political from the start, giving leadership of the Republican party  no voice at the table to negotiate necessary healthcare reform. Something as major as the redesign of health care in America should have been a joint effort, but alternative plans never got a hearing.

Wall Street Journal columnist Peggy Noonan summarizes it, to this point, here. She makes very good and important points, and particularly one I’ve focused on while so much attention in the early unraveling of Obamacare centered on the stunning website failures. That was misdirected focus, though that crash definitely occurred, definitely cost a ton of money and most definitely didn’t have to happen, with technology experts able to handle something like this with far less lead time and at far less cost with vastly more ease of use. That’s all true. But Noonan focuses on what I’ve wanted to see addressed, which is the main point.

So the program debuts and it’s a resounding, famous, fantastical flop. The first weeks of the news coverage are about how the websites don’t work, can you believe we paid for this, do you believe they had more than three years and produced this public joke of a program, this embarrassment?

But now it’s much more serious. No one’s thinking about the websites. They wish you were thinking about the websites! I bet America hopes the websites never work so they never have to enroll.

The problem now is not the delivery system of the program, it’s the program itself. Not the computer screen but what’s inside the program. This is something you can’t get the IT guy in to fix.

Yes, it’s the program itself. It was always that.

They said if you liked your insurance you could keep your insurance—but that’s not true. It was never true! They said if you liked your doctor you could keep your doctor—but that’s not true. It was never true! They said they would cover everyone who needed it, and instead people who had coverage are losing it—millions of them! They said they would make insurance less expensive—but it’s more expensive! Premium shock, deductible shock. They said don’t worry, your health information will be secure, but instead the whole setup looks like a hacker’s holiday. Bad guys are apparently already going for your private information.

Many people may have missed that, but HHS Secretary Kathleen Sebelius had to admit under oath in her testimony before a Senate Finance Committee hearing that healthcare ‘navigators’ hired by the federal government to help people sign up for healthcare online and thus take sensitive personal information from them just may be felons.

Sen. John Cornyn asked if federal background checks were a prerequisite for the hiring of the individuals tasked with walking people through ObamaCare enrollment.

“The president is in Dallas, Texas today touting the navigator program, which as you know are people who are hired to navigate the [Affordable Care Act], but I would just like to ask you this question,” Cornyn said to Sebelius. “Isn’t it true that there is no federal requirement for a navigator to undergo a criminal background check, even though they will receive sensitive personal information for people they help sign up for the Affordable Care Act?”

“That is true,” Sebelius responded. “States can add an additional background check and other features, but that is not part of the federal requirement.”

“So a convicted felon could be a navigator and could acquire sensitive personal information?” Cornyn asked.

“That is possible,” Sebelius said. “We have contracts with the organizations, and they have taken the responsibility to screen their navigators and make sure that they are sufficiently trained for the job, and there’s a self attestation, but it is possible.”

Noonan has a suggestion.

Maybe [oversight committees] could even call in some people from the White House and Congress, the ones who helped write and interpret this famous law that you had to pass before you could know what was in it, and ask: “Did you ever meet a normal human? Did you understand what you were doing when you produced this thing?”

Maybe they could even ask the president: “In your entire life, from community organizer to lawyer to politician, did you ever buy an insurance policy? Were you always on your wife’s plan, or immediately put on a plush government plan? Did you ever have to do anything like what you’re telling the people of your country to do?”

What are the odds those questions will be asked? Though the media are now, finally, asking questions and turning up information about pressure politics to avoid transparency on the healthcare overhaul.

We deserve transparency, the president and all elected officials deserve scrutiny by an informed electorate, because we’re all affected by it.

The idea that “only” 3 percent of Americans will end up on the short end of a 2,700-page law remaking the nation’s health care system seems as fanciful as the President’s pledge that anyone who likes their current plan could keep it.

The facts are clear: Obamacare isn’t just unfair for a small percentage of Americans; it’s unfair for the entire country.

There were alternatives. Here are some that didn’t require policy wonks.

It didn’t have to be this way. The Affordable Care Act may have been designed to be a socialized monstrosity of health care displacement and governmental control, but it need not have been. Creating a means whereby people who wanted health insurance could purchase it (and younger people in good health could choose limited, catastrophic coverage, or none at all) needed only two things: a willingness to put common sense over politicization, and a genuine respect for the notion that people understand their individual needs better than anyone else.

Common sense, and respect for the people they have ostensibly been elected to serve, are currently in short supply in our nation’s capital. The Affordable Care Act was passed by one political party while it was in control of two branches of government and feeling disinclined toward discussing (or even acknowledging) design alternatives.

That’s a shame because creatively exploring and expanding upon just a few of these framework ideas might have solved the problems of the uninsured without severely disrupting much of anything:

A) Begin where you are: Why should all roads lead to Washington DC when local communities are best able to identify those in need and to reach out? In 2000, then-Mayor Rudy Giuliani, went to the New York City Council with the simplest of plans: Take a pro-active approach and reach out to the uninsured who are not even aware of what programs already exist, which helped to insure several hundred thousand in New York City alone. Before upending anyone, get the right people enrolled into the appropriate, existing programs.

B) Invite-in can still avoid federal intervention: Healthcare infrastructure is all about managing risk by spreading it. If the most economically efficient plan is the one covering as many people as possible, then why not create extensions that offer the uninsured the opportunity to buy into the very same insurance plans offered to any state’s government employees, which are usually excellent?

C) Open the markets: Perhaps because it is both the simplest and the most commercial of ideas, and the least political, there appears to have been no discussion of allowing insurance to be sold across state lines, which would have immediately broadened the market competition and thereby lowered costs for everyone, across the board. Rather than opening coverage availability, the ACA appears to narrow it.

Read the account there of cancer patient Edie Littlefield Sundby:

Before the Affordable Care Act, health-insurance policies could not be sold across state lines; now policies sold on the Affordable Care Act exchanges may not be offered across county lines. It would seem the ACA would have the effect of geographically trapping people, effectively keeping them from pursuing new in-state opportunities and adventures for fear of again losing insurance and having to re-start the research and purchasing process. It is another narrowing, rather than enlarging, effect of Obamacare.

The column concludes with a presumption that perhaps something may still be done, by people of common sense, before this gets much worse. Maybe that’s not possible, maybe it is. But there’s no telling right now.

As this unpopular policy we call Obamacare begins to crumble from the weight of its own incompetent over-reach and mendacity, the opportunity may soon arise for policy reform, but if other voices do not have alternative plans already designed, thought through and set for discussion when an urgent solution is called for, there will be no option left in the political imagination but a single-payer program—managed by these same incompetents—and a nation full of frightened, uninsured people willing to turn to it.

The latest political class punditry holds that there’s no turning back now from the inevitable impact of such a massive federal program already in place. We’ll see.

Ailing Obamacare

The dis-ease is getting worse.

Unlike news stories people can afford to ignore because they’re too bu
sy or removed, this is one they’re invested in, or were required to be by law. So everyone was paying attention when the day came for Obamacare to launch, and people to begin signing up. Which they were prepared to do with ample warning of the consequences for not being able to meet the requirements. And thus, everyone saw how unprepared the government was, in spite of ample opportunity to build the system it required. Now, the consequences follow.

Obamacare has a 99.6 percent rating—and not in a good way.

A paltry 36,000 people managed to enroll in the federal online health-insurance marketplace in its first, software-glitch-ridden week of operation, a grim new analysis found Wednesday.

That’s “far fewer than one percent of all visitors to HealthCare.gov” for the week ended Oct. 5, wrote Matt Pace, managing director of research firm Millward Brown Digital, on a blog post entitled “A Bleak First Week.”

In fact, the firm found 99.6 percent of HealthCare.gov’s visitors left before enrolling in coverage, a sobering statistic given the Obama administration’s goal of signing up 7 million people on new government-run health exchanges by 2014.

The Hill picked up on that non-partisan data research firm’s report, and analysis.

The Obama administration has not released enrollment figures of its own, but says healthcare.gov received 14.6 million unique visitors in its first 11 days.

In a blog post Wednesday, Millward Brown Digital Managing Director Matt Pace wrote it’s “no surprise” that federal officials have been tight-lipped about the numbers.

“Healthcare.gov was clearly unprepared to handle the huge spike in traffic on Oct. 1, the start of open enrollment, which the site was visited by 0.9% (or one in 114) of everyone online in the United States,” Pace wrote.

He added that while the site’s performance in its first week was “atrocious,” traffic figures indicate a demand for ObamaCare’s new coverage options.

The Department of Health and Human Services (HHS) initially attributed the site’s unrelenting technical issues to floods of users.

But HHS later acknowledged that there were system errors at play as well. Since then, officials have temporarily taken down parts of the site for repairs.

CNN says it needs more than repairs.

Experts say the major problems with the Obamacare website can’t reasonably be solved before the end of 2013, and the best fix would be to start over from scratch.

After assessing the website, Dave Kennedy, the CEO of information-security company Trusted Sec, estimates that about 20% of Healthcare.gov needs to be rewritten. With a whopping 500 million lines of code, according to a recent New York Times report, Kennedy believes fixing the site would probably take six months to a year.

But would-be Obamacare enrollees only have until Dec. 15 to sign up for coverage starting at the beginning of 2014. Nish Bhalla, CEO of information-security firm Security Compass, said it “does not sound realistic at all” that Healthcare.gov will be fully operational before that point.

“We don’t even know where all of the problems lie, so how can we solve them?” Bhalla said. “It’s like a drive-by shooting: You’re going fast and you might hit it, you might miss it. But you can’t fix what you can’t identify.”

This is beyond huge. It’s an immense breakdown.

The sheer size of Healthcare.gov is indicative of a major rush job. Rolling the site out too quickly likely increased the number of errors, and that makes the fixes more difficult to implement.

Too quickly? They’ve had years to work on this, “$300 million worth of work” on Healthcare.gov, with hundreds of millions of lines of code that

says right off the bat that something is egregiously wrong,” said Kennedy. “I jumped back when I read that figure. It’s just so excessive.”

Applicants might be able to at least register for Obamacare sooner than that, even if the site isn’t 100% perfect. The New York Times report said five million lines of code need to be replaced just so the site can run properly.

But the Obamacare website has bigger problems than simply getting people registered for health care. The code is also riddled with security holes, according to Kennedy, who outlined his cybersecurity concerns on Trusted Sec’s company blog.

“If someone can’t register, that’s obviously bad — but if the information gets hacked, you’re talking about one of the biggest breaches in American history,” Kennedy said. “I think security is an afterthought at this point.”

That might not be a major issue now, as people are still having trouble logging onto the site. But once it’s up and running, that code had better be made more secure.

“At this point, the car isn’t even moving,” Bhalla said. “But once we’re speeding down the road, you’re going to want that seatbelt to work.”

There is so much wrong with this, you can’t fit it into one report. News story after news story reports on different aspects of this potential crisis that are already affecting people’s jobs or health insurance or both, with employers cutting employees or hours, and people receiving letters from their health insurers saying their policies were being terminated because of changes in the law under Obamacare.

This is getting more disturbing by the day. But today, with more Democrats calling for a delay in implementation of parts or all of Obamacare, I heard a news analyst say that doing so would be good and bad for the president (without mentioning what it would be for millions of Americans). Good in that it would give his administration time to work out the problems with the system. And bad because “it would appear to give a win to the Republicans.”

Get past the politics of something so major as this. Even the Washington Post reported that Obama’s biggest detractors weren’t Senate Minority Leader Mitch McConnell or House Speaker John Boehner. It’s popular late night comedian Jon Stewart.

Stewart, the host of the wildly popular “Daily Show” on Comedy Central, has emerged as a harsh critic of HealthCare.gov and the Obama administration’s inability to fix it…

Who cares what a late night comedian/talk show host thinks? President Obama should if viewership details on Stewart’s show are right.

According to a 2012 Pew Research Center poll, “The Daily Show” has the second-largest share of young viewers — aged 18-29 — of any of the 24 media outlets tested.

And remember…

President Obama and his administration have made it quite clear that one of the big beneficiaries of the law should be young people…

But, these same young people tend to get much of their news — and therefore have their opinions shaped — not by places like The Washington Post or the CBS Evening News but rather by Stewart. He is their Tom Brokaw, their David Brinkley. So, what Stewart says matters — a lot.

This is going to get worse before it gets better. Maybe unimaginably worse. But at least everyone’s paying attention.

The US government debt deal winners and losers

Big media have spent the past several days handicapping who won and lost most in political terms. The bishops have another measure.

Their response to the debt deal reached the other day in Washington focused not at all on partisan politics but human impact.

From a USCCB press release:

The U.S. bishops welcomed the decision of federal government leaders to agree to end the partial government shutdown 16 days after closing many offices and suspending important programs and services. The bishops also were heartened that so many who had been out of work could return to their jobs.

“The shutdown has had a widespread impact on many people, especially the poor, who suffered for lack of basic services during the period,” said Bishop Stephen Blaire of Stockton, California, chairman of the Committee on Domestic Justice and Human Development. “With the government now open, beneficiaries of government services, particularly the elderly and children, can hope to resume a normal life with a safety net securely in place.”

And, take note…

The bishops also remain deeply concerned regarding the Health and Human Services mandate that will force employers to provide health coverage that entails payment for abortifacients, contraceptives, and sterilizations, even if doing so violates the employers’ deeply-held religious or moral beliefs. Catholic ministries that provide health care, educational, and social services generally are not exempt from the mandate, and enforcement against them will begin January 1, 2014, putting at risk the poor and vulnerable served by those ministries.

“The bishops have pressed for legislative relief from the HHS mandate since its inception more than two years ago,” said Archbishop William E. Lori of Baltimore, chairman of the Ad Hoc Committee on Religious Liberty. “Church efforts to protect rights of conscience will continue despite this temporary setback.”

The bishops urged the House and Senate to avoid a government shutdown. In September 30 letters to the House and Senate, Archbishop José Gomez of Los Angeles, Bishop Blaire and Bishop Richard Pates of Des Moines, Iowa, urged “wise bipartisan leadership and moral clarity in crafting a plan to ensure the government continues to operate and meet its responsibility to protect human life and dignity, care for poor and vulnerable people at home and abroad, and advance the universal common good.”

Here’s one. But many members of Congress instead were focused on partisan political expediency, or whatever they call it by shallow names.

As reported here during the showdown, one deal the House sent over to the Senate on the government spending agreement merely added H.R 940 to the continuing resolution, which addressed the particular part of Obamacare that required the absolutely unnecessary and agenda laden provision of birth control and morning after pills and elective sterilizations in healthcare coverage. Entirely reasonable and in fact, the correct response to the stunningly aggressive and hostile HHS mandate requiring that coverage.

Here’s the bishops’ latest appeal on that (which got rejected).

So now, the Washington Archdiocese has filed the understandable legal claim that the Obama administration continues to pursue a “conscious political strategy to marginalize and delegitimize” Catholic teaching.

“When the government promulgated the mandate, it was acutely aware that the gap in coverage for contraception was due primarily to the religious beliefs and practices of employers such as the Catholic Church,” the archdiocese argues in a legal memorandum supporting its complaint.

The lawsuit makes the claim that the administration’s policy is a direct challenge to religious freedom: “But instead of pursuing one of a wide variety of options for increasing access to contraception without forcing these religious groups to participate in the effort, the government deliberately chose to pick a high-profile fight by forcing religious groups to provide or facilitate access to contraception in violation of their core beliefs.”

And so it continues. Probably necessitating Supreme Court intervention into this government encroachment on settled liberties.

When President Obama first ran for that office in 2008, he promised transparency, and told Evangelical Pastor Rick Warren that he considered being a Christian meant “thinking about the least of these'”each day.

WARREN:… Now, you’ve made no doubts about your faith in Jesus Christ. What does that mean to you? What does it mean to you to trust in Christ? And what does that mean to you on a daily basis? What does that really look like?

OBAMA: As a starting point, it means I believe in — that Jesus Christ died for my sins, and that I am redeemed through him. That is a source of strength and sustenance on a daily basis. Yes, I know that I don’t walk alone. And I know that if I can get myself out of the way, that I can maybe carry out in some small way what he intends. And it means that those sins that I have on a fairly regular basis, hopefully will be washed away.

But what it also means, I think, is a sense of obligation to embrace not just words, but through deeds, the expectations, I think, that god has for us. And that means thinking about the least of these. It means acting — well, acting justly, and loving mercy, and walking humbly with our god. And that — I think trying to apply those lessons on a daily basis, knowing that you’re going to fall a little bit short each day, and then being able to kind of take note and saying, well, that didn’t quite work out the way I think it should have, but maybe I can get a little bit better.

On the HHS mandate, and on abortion in general, he has been intransigent.

And then he affirmed at that notorious commencement address at Notre Dame in 2009:

“Let’s honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded not only in sound science, but also in clear ethics, as well as respect for the equality of women,”…

But he didn’t follow through on those words and the promise they held out for people who acted on conscience in their daily practices in the professional world.

These are good to recall and important to apply to governance. God knows, most of the government and media have long forgotten.