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Here Comes Commerce Clause!

Tony Perkins · Dec. 18, 2018

After 2017, most Republicans just wanted to forget about Obamacare. Thanks to one court, that’ll be impossible to do now. More than a year after the GOP watched Senator John McCain kill their best shot at repealing the law, a judge in Texas just did what Congress could not.

For the GOP, who’d put aside any hope of toppling the law after the midterm, District Judge Reed O'Connor guaranteed that the issue isn’t just back — it’s front and center. “As I predicted all along,” President Trump tweeted, “Obamacare has been struck down as an unconstitutional disaster! Now Congress must help Trump pass a strong law that provides great healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!”

O'Connor, who was appointed by George W. Bush, heard the case at the request of 20 states that have been trying to get out from under this disaster of a health care exchange since 2010. Led by Texas Attorney General Ken Paxton, the states argued that since Congress got rid of the penalty for not having health care insurance in the tax bill, Supreme Court Justice John Roberts’s rationale for upholding Obamacare no longer applied. Remember, back in 2012 Roberts cast the deciding vote to save the law by claiming that the individual mandate fell under the Commerce Clause.

“The Federal Government does not have the power to order people to buy health insurance,” Roberts wrote. But it does, he went on, have the power to tax. So, in one of the most shocking and controversial defenses of Obamacare ever, the law — and all of its freedom-crushing, conscience-violating, abortion-funding schemes — survived. Now, thanks to the GOP’s decision to do away with the individual mandate, Roberts’s “tax” has been zeroed out. That means his argument — and the court’s entire justification for keeping Obamacare — no longer applies. If the government isn’t “taxing” people, then the Affordable Care Act can’t be upheld under Congress’s taxing power.

Of course, no reasonable person ever fell for Roberts’s logic anyway. At the time, even Democrats — including President Obama — insisted the mandate wasn’t a tax. Even ordinary Americans, writes the Federalist’s John Daniel Davidson, didn’t fall for the line. To them, “it was exactly what it appeared to be: a punishment for not following orders” So six years later, it’s no surprise that a lot of people — the Wall Street Journal included – are “admit[ting] to a certain satisfaction in seeing the Chief Justice hoist on his own logic.”

But as gratifying as Friday’s ruling was, there’s a little trepidation on both sides about where the debate goes from here. For Republicans, the sting of last August doesn’t exactly make them eager to pick up the issue and run with it. Not to mention that having lost the House, repealing the law (which was difficult enough under GOP control) will be next to impossible now. And the last thing anyone wants after eight years is for Republicans to negotiate a replacement from a weaker position. “The risk,” the editors of the WSJ write, “is that the lawsuit will cause Republicans in Congress to panic politically and strike a deal with Democrats that reinforces Obamacare.”

As usual, Democrats are content rolling the dice in the courts — which is where they make most of their policies anyway. On Sunday, Sen. Chuck Schumer (D-N.Y.) urged his party to fall back on old faithful: the judiciary. “We have a divided House and Senate,” he said. “I think the courts have to be the first and best way to go.”

But if there’s one thing Roberts’s 2012 decision taught us, it’s that Congress can’t rely on the courts to clean up its messes. It’s time for both parties to stop surrendering their power to the other branches, Senator Ben Sasse (R-Nebr.) chided, as “a convenient way to avoid responsibility for controversial and unpopular decisions.” The House and Senate, he writes in a blistering op-ed to his colleagues, keep “look[ing] to the nine justices to be super-legislators, to right the wrongs from other places in the process… We need a Congress,” Sasse insisted, “that writes laws, then stands before the people and faces the consequences… This is the elegant, fair process the Founders created.”

And it’s the elegant and fair process voters deserve. There are plenty of viable alternatives to Obamacare that would give states back their authority, taxpayers back their consciences, and patients back their choices. “Politicians have long promised to replace Obamacare with solutions that help everyone,” Heritage’s Marie Fishpaw and John Malcolm point out. “It’s time to deliver — no matter which way the courts go.”

Originally published here.

NIH Chief: Re(search) and Destroy

When the Trump administration decided to keep President Obama’s NIH director, most pro-lifers were worried. Now we know why.

Francis Collins, the longtime head of the National Institutes of Health, has a distinguished resumé. But, as most people in the movement know, it’s missing something important: a commitment to bioethics. Unfortunately, that’s been a problem long before this administration. As Obama’s NIH chief, Collins insisted that America keep funding projects that create human beings to kill them. He insisted embryonic stem cell research was “life-saving,” he insisted — despite the fact that it’s never produced a single treatment.

Now, he seems to be clinging to another grisly form of human experimentation — fetal tissue research. Most Americans probably didn’t even know they were paying for such a thing until 2015, when David Daleiden broke the story about Planned Parenthood’s baby body part ring. As shocked as they were that there was a market for this sort of thing, they were probably even more stunned to find out the name of one of the most prominent buyers: the U.S. government.

The story turned out to be true, and Republicans — like taxpayers — were outraged. Dozens of them called on HHS to stop using the tissue of aborted babies in more than $100 million worth of projects. Secretary Alex Azar took the news to heart and ordered a review of every fetal tissue grant. One in particular, over at the FDA, he canceled right away. The others, under Collins’s supervision at NIH, are still ongoing. And it sounds like, from the latest soundbites, that he’ll fight to keep it that way.

At a meeting of NIH’s Advisory Committee to the Director, the Obama holdover confirmed that the agency is looking for alternatives to fetal tissue research — so much so that Azar is committing $20 million to alternatives. Collins seemed to agree with the idea, calling it “scientifically, highly justified.” But, he told the group, he wasn’t backing away from fetal tissue one bit, not even under the president’s pro-life mandate. Experimenting on these tiny bodies “will continue to be the mainstay,” he insisted. “There is strong evidence,” he went on, “that scientific benefits can come from fetal tissue research, which can be done with an ethical framework.”

That’s certainly not the impression most people got last week, when experts testified before the House Government Oversight Committee. There, scientists and bioethicists couldn’t point to a single reason that the U.S. government would keep this controversial research afloat. “There is no scientific necessity for the continued taxpayer funding of fresh fetal tissue, organs, and body parts from induced abortion,” Dr. David Prentice told House members. “Ample scientific alternatives exist, and modern alternatives have overtaken any need for fresh fetal tissue.” Others, like Tara Sander Lee, a scientist who is also an associate scholar at the Lozier Institute, argued, “We never needed fetal tissue to begin with.”

Still, Collins seems more than ready to buck the president’s position on the issue, arguing that helping someone now is worth the gruesome tradeoff. “Even for somebody who is very supportive of the pro-life position, you can make a strong case for this being an ethical stance,” Collins told reporters. “That’s if something can be done with these tissues that might save somebody’s life downstream, perhaps that’s a better choice than discarding them.”

That rationalization might have flown under the Obama administration, but it doesn’t work now. Collins’s views aren’t pro-life, and they aren’t pro-science.

Originally published here.

The Birds and the Plan Bs

At some new college vending machines, you can get a lot more than snacks! On a growing number of campuses, food is just one thing you can buy. Emergency contraception is the other.

They call it “wellness to go,” but Yale’s unconventional pharmacy is a lot less about wellness than you’d think. Like Columbia, Stanford, Dartmouth, the University of California, Miami of Ohio, and so many others, a vending machine full of drugs is supposed to make the pills like Plan B more accessible. “Hopefully this will set a precedent for more machines to show up around campus that contain other things so Yale students don’t have to go out of their way to go to CVS, especially students from the new colleges,” Ileana Valdez, the student representative who led the campaign said.

This way, she argues, buying the morning-after pill is a less “humiliating process.” But it’s also a riskier one. Back when the FDA made Plan B available over-the-counter, people on both sides of the aisle were surprised. Even now, women need a prescription for birth control. But a drug with double the hormones, they can buy from a nearby snack machine. That’s government logic for you. Even President Obama seemed concerned that stores would stock it next to the “bubble gum and batteries.” “As the father of two daughters,” he said back in 2011, “I think it is important for us to make sure that we apply some common sense to various rules when it comes to over-the-counter medicine.”

Fast-forward seven years, and we’re selling a drug with twice the potency of regular birth control like a bag of Cheetos! For $15, students can slip into a campus building without ever talking to a doctor. And it’s not just the side effects that parents should be worried about. These machines make it possible for girls to bypass the health screening they should get as sexually active students. That means they aren’t under a doctor’s supervision, they aren’t being tested for STDs, and they can’t get basic guidance about what’s healthy and what isn’t.

And unfortunately, this argument of “convenience” is leading to a much bigger problem where other drugs like RU-486 are concerned. In some states, women are even aborting their children by a remote-type vending machine. This same mentality is leading to a rise in telemed abortions, where pregnant moms can video-conference with doctors instead of meeting them face-to-face. After talking to the patient, the doctor can tap a button on the computer to open a special drawer at the other location that’ll dispense the chemical abortion drug, RU-486. Unlike Plan B, which has its own set of issues, these drugs are extremely dangerous. There’s no clinic visit, no monitoring, or follow-up. If a woman has complications — and many do — they’re on their own.

The last thing we should be encouraging as a culture is even less accountability when it comes to sex. As the National Coalition of STD Directors will tell you, “We are in the midst of an absolute STD public health crisis in this country.” Some school officials will say that if a girl has access to these pills then she’s less likely to get pregnant. Well, maybe. But she’ll also be more likely to have unprotected sex. And the last time anyone checked, there wasn’t a retroactive cure for that.

“Although… no prescription is needed, we would always prefer that students talk with medical or counseling practitioners about preventing unwanted pregnancy,” said an official from George Mason University. She’s right. It’s time for more colleges to look at the bigger picture and do what they can to keep Plan B from becoming plan A.

Originally published here.

This is a publication of the Family Research Council. Tony Perkins’ Washington Update is written with the aid of FRC Action senior writers.

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