While the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will go down in history as a 6-3 decision with only the three Democrat-appointed justices dissenting, Chief Justice John Roberts actually did not support a full reversal of Roe v. Wade and Planned Parenthood v. Casey. His concurring opinion, which argued that the Court should uphold Mississippi’s ban on abortions after 15 weeks of pregnancy without entirely abolishing a constitutional right to abortion, represented a path not taken by the other five conservative members of the Court.
When the Court held oral arguments on the Mississippi law last December, the conservative majority’s determination to redeem Donald Trump’s promise to reverse Roe v. Wade was quite clear. The only ray of hope was the clear discomfort of Chief Justice John Roberts, as New York’s Irin Carmon noted at the time:
“It seemed obvious that only Roberts, who vainly tried to focus on the 15-week line even when everyone else made clear it was all or nothing, cares for such appearances. There had been some pre-argument rumblings that Barrett and Brett Kavanaugh might defect, perhaps forming a bloc with Roberts to find some middle ground as happened the last time the Court considered overturning Roe in 1992’s Planned Parenthood v. Casey. On Wednesday, neither Barrett nor Kavanaugh seemed inclined to disappoint the movement that put them on the Court.”
Still, the Casey precedent offered a shred of hope, since in that 1992 case some hard and imaginative work by Republican-appointed justices determined not to overturn Roe eventually flipped Justice Anthony Kennedy and dealt a devastating blow to the anti-abortion movement. Just prior to the May leak of Justice Samuel Alito’s draft majority opinion (which was very similar in every important respect to the final product), the Wall Street Journal nervously speculated that Roberts might be undermining conservative resolve on the Court, or change sides as he famously did in the Obamacare case.
In the wake of the leak there was some reporting that Roberts was indeed determined not to go whole hog in Dobbs; one theory about the leak was that it had been engineered to freeze the other conservatives (especially Justice Brett Kavanaugh, who during his confirmation hearings had said many things incompatible with a decision to reverse Roe entirely) before the chief justice could lure them to his side.
Now it appears Roberts tried and failed. His concurrence was a not terribly compelling plea for “judicial restraint” that left him alone on the polarized Court he allegedly leads:
“I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further certainly not all the way to viability.”
Roberts’s proposed “reasonable opportunity” standard is apparently of his own invention, and is obviously vague enough to allow him to green-light any abortion ban short of one that outlaws abortion from the moment of fertilization, though he does seem to think arbitrarily drawing a new line at the beginning of the second trimester of pregnancy might work. Roberts’s real motivation appears to be upholding the Court’s reputation for judiciousness, which is indeed about to take a beating:
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
In his majority opinion (joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, along with Kavanaugh) Alito seems to relish in mocking the unprincipled nature of the chief justice’s temporizing position:
“There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party …
“The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “[n]o party or amicus asked the Court to adopt …
“The concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be “discarded” without disturbing any past precedent … That is simply incorrect.”
One has to wonder that if Merrick Garland had been allowed to join the Court in 2016, or if Amy Coney Barrett had not been rushed onto the Court in 2020, Robert’s split-the-differences approach eroding but not entirely abolishing the constitutional right to abortion might have carried the day in Dobbs. But that’s like speculating about where we would be had Donald Trump not become president in 2017 after promising conservatives the moon — and an end to Roe.
No doubt the American health insurance industry will oppose rigorous regulation even more fiercely than the public option. It seems almost a silly exercise to even consider the prospect. However, I do wonder whether insurance regulation such as that imposed on auto insurance by California Prop 103 might work. As a counterbalance to mandatory auto insurance, the State exerts control over premiums. When the proposition passed in 1988, the auto insurance industry forecast doom, warning that companies would abandon the California market in droves. 20 years later, there are plenty of choices of auto insurance to choose from and most Californias are pleased with the results. California premium rates have dropped from the second highest in the US to 21st (http://www.consumerwatchdog.org/insurance/articles/?storyId=18988). Note that voters, not legislators, imposed regulation in California. Can you imagine Conrad, Baucus, and Lincoln standing up for stiff regulation? I sure can’t. I’m hanging in there for a public option and wondering whether I could ever support mandated health insurance without either a public option or regulation. I think not.
We can’t even bring ourselves to regulate Wall Street immediately after the biggest meltdown in living memory. They’ve taken the bailout money, thank you very much, and jumped right back into derivatives trading. And you’re pinning your hopes on regulating the insurance and pharmaceutical industries?
aggressive government regulation of private health insurers can accomplish a lot of the same things as competition from a public option
Even mild regulation won’t last a decade, if that long; it will be bound and smothered and neglected in a thousand ways, from under-the-radar ‘relief’ for businesses to race-to-the-bottom ‘federalism’ to outright refusal to enforce said regulations,all accelerating as Republicans gain more power. And because most of the ill effects of this non-regulation will be borne by those under the radar for many years (until we reach another tipping point), people won’t care.
A public option’s big advantage is that it’s, well, public— we can see it and will know others who use it and will all have at least some interest in it not being overly corrupt. And one most likely would grow instead of decaying the way regulations inevitably will. Bottom line: American regulation is a joke, because our political system is not designed to protect the common good, no matter what the founding documents say.
Democrats know perfectly well that whenever they build anything benefiting citizens by GOP blueprints, the foundation will eventually fail, and that’s a feature, not a bug. The right can tinker with cosmetics without doing too much damage, but I will never buy anything they helped design (or even influenced) from the ground up.
My understanding of the Swiss system is not that the insurance companies cannot make any profit on policies, but that they cannot make any profit on BASIC policies. Supplemental insurances, boutique policies, the kind (I surmise) where you get a private room and a private duty nurse, etc., or access to the pricier long-term care facilities, can be sold for a profit. It might not change the willingness of the insurance lobby to fight reform, but it’s a point that perhaps should be made.
The chance of passing real insurance reform, like that in the Netherlands, or Germany or Switzerland, all of which have systems based on private insurance, is probably less than that of a public option.
In most of these countries the insurers are regulated like public utilities, and are generally by law required to be not for profit. What is the chance of current insurers going or that? Right, and slim has left town. If you think they are putting up a fight now, wait for a bill that strictly regulates their coverages, premiums and corporate policies and makes them essentially non-profits. Can you say, “Republicans (and all too many Democrats) screaming Government takeover?” I thought you could.
In this political climate the public option is our only option.