Supreme Court and the culture war -- March 28, 2013 column

By MARSHA MERCER

One January day in the mid-1970s, Supreme Court Justice Potter Stewart was riding in a car down Pennsylvania Avenue when he spotted a crowd marching up Capitol Hill toward the court.

Stewart, unaware it was the anniversary of the Roe v. Wade decision, asked what was happening. People were protesting against legalized abortion, Stewart was told.

 

“I don’t understand it,” the puzzled Stewart responded, shaking his head. “We’ve decided that.”

Longtime New York Times reporter Linda Greenhouse says the court’s chief deputy clerk, who was with Stewart that day, told her the story to illustrate how easy some court decisions seem at the time.

Stewart was one of five Republican-appointed justices who voted in the 7 to 2 majority to make abortion legal in 1973. When he retired in 1981, the decision still looked “rock solid,” Greenhouse wrote. Now, “not so much.”

The justices decided the abortion issue, but they didn’t settle it. The fight over abortion rights still rages, and, in a gigantic leap to the past, could be headed back to the courts.

North Dakota Gov. Jack Dalrymple on Tuesday signed the nation’s strictest abortion law, prohibiting nearly all abortions in the state. Dalrymple concedes the measure likely won’t survive a court challenge but insists it’s “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”

North Dakota jumped over Arkansas, which for a couple of weeks had the title of strictest abortion law.   Last year, 19 states passed 43 provisions limiting abortion services, according to the Guttmacher Institute, a reproductive rights research group.

  

Could the Supreme Court unintentionally have set the stage for the 40-year war over abortion? None other than Justice Ruth Bader Ginsburg, a staunch advocate for women’s equality, has long believed that when the court stepped ahead of the legislative process, it ignited the protest movement.

States were heading toward abortion rights, but not fast enough for advocates of complete change. Only four states had repealed their anti-abortion laws while 13 had liberalized them when the court made legal abortion the law of the land.

The sweeping ruling was hailed as a breakthrough. But Ginsburg said in a lecture in 1992 that it brought on a backlash that hurt progress in women’s rights.

     

“Around the extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction,” she said then. 

America’s story has always been one of expanding personal rights, not reining them in. No one could have imagined in 1973 that four decades later states would be chipping away at a woman’s right to choose. 

Ginsburg suggested in the 1992 lecture that the anti-abortion movement might never have gathered steam had the court taken smaller steps. We’ll never know.  

Appointed to the high court by President Bill Clinton in 1993, Ginsburg celebrated her 80^th birthday March 15. She hasn’t changed her mind about Roe.

“It’s not that the judgment was wrong, but it moved too far, too fast,” she said last year.

Much has changed in society, thankfully, since 1973. The Supreme Court heard arguments Tuesday and Wednesday on two cases involving same-sex marriage. Nine states and the District of Columbia now allow gay marriage.

Seventeen state attorneys general, including those in Alabama and Virginia, filed a legal brief, citing fallout from Roe and Ginsburg’s comments to contend that the court should butt out and let the process work its will. That’s not fast enough for many Americans who want marriage equality to be the law of the land.

In the arguments, the justices seemed reluctant to wade into a case from California, where voters banned same-sex marriage with Proposition 8. Justices seemed far more likely to strike down the Defense of Marriage Act, a 1996 federal law that allows only heterosexual married couples to receive spousal benefits.

Ginsburg gave a glimpse of her distaste for DOMA’s discriminatory effects.

The law, she said, creates “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.”

When the court rules, probably in June, we may find out whether Ginsburg thinks that same-sex marriage has reached the point where the court needs to step in.

And if, as she hopes, Ginsburg stays on the court as long as Louis Brandeis, who retired at 82, the court’s liberal leader could hear an abortion case.

©2013 Marsha Mercer. All rights reserved.

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Why House GOP is wrong on Obamacare -- March 21, 2013 column

By MARSHA MERCER

Mitt Romney promised during his presidential campaign to repeal the health law on his first day in office. 

Big mistake, he says now.  

“I think Obamacare attractiveness…was something we underestimated, particularly among lower incomes,” Romney said in an interview March 3 on “Fox News Sunday,” adding, “Obamacare was very attractive, particularly to those without health insurance.”

Leaving aside the reference to people as “lower incomes,” this is like Romney’s saying he underestimated how attractive food is to someone who’s starving.

A hungry person chooses a meal over a sermon on the virtues of eating less. Who knew?

And yet it didn’t dawn on Romney until too late that when 49 million people are uninsured, that’s a lot of votes for someone else who’s trying to make their lives better. President Barack Obama got 65 million votes last November.

If the enlightened Romney was trying to warn Republicans to back off their war on Obamacare, it didn’t work. House Republicans are in denial about the Affordable Care Act – even though the Supreme Court upheld it, Obama got four more years and the Senate stayed in Democratic hands.

House Republicans keep fighting. They may be encouraged by the tepid approval that Americans have in polls for the Affordable Care Act.

When President Obama signed the health law March 23, 2010, in a festive White House ceremony, 46 percent of people approved of the law and 40 percent disapproved, according to a Kaiser Family Foundation poll.

An optimistic Obama declared, “The bill I’m signing will set in motion reforms that generations of Americans have fought for and marched for and hungered to see.”

In fact, the signing set in motion non-stop barrage of opposition. 

House Speaker John Boehner called it a “somber” day for the American people, and House Republicans haven’t stopped bashing since.

Although Obama won the 2012 election, Republicans think they’re winning the marketing war. So, although they look foolish when they insist on voting year after year to repeal a law that has been upheld, they continue to tarnish the law. Yes, many of them support some of the law’s provisions.

Support of the health law nationally has dropped to 37 percent. Forty percent view the law unfavorably and the rest declined to answer, a poll by the Kaiser Family Foundation reported Wednesday.

The law was designed so that popular provisions went into effect first. It allows young people under 26 to stay on their parents’ insurance, abolishes lifetime caps on benefits, prohibits insurers from refusing to cover children with pre-existing conditions, provides free preventive services and begins closing the donut hole for seniors’ prescription drugs.

Health and Human Services Secretary Kathleen Sebelius says 3 million young people now have health insurance through their parents, 100,000 very sick people are receiving insurance through high-risk pools, and Medicare costs are actually dropping.

This is good news, but… Most people – 62 percent – haven’t seen any effects of the law, and only 17 percent say they’ve seen benefits like lower costs or greater access to care, according to Kaiser. A larger share, 22 percent, say they or their family have been negatively affected by higher costs or cuts in benefits.

And that’s a problem for Obama. With carrots first, people were supposed to accept sticks later. In January, mandates kick in requiring that individuals have health insurance and businesses with 50 full-time employees offer insurance -- or pay penalties.

Republicans now are trying to kill funding, just as the government is creating insurance marketplaces or exchanges where individuals and small businesses will shop for insurance.

With many details yet to be worked out, small-business owners worry. They want to help their employees, comply with the law and stay in business. Those goals should be compatible. 

Romney realized belatedly that the uninsured matter. It’s time Obama recognizes that small businesses matter. Senate Democrats need to make sure that the administration has the money to make the law a success.  

© 2013 Marsha Mercer. All rights reserved.

On sugary drinks and the right to be stupid -- March 14, 2013 column

By Marsha Mercer

Secretary of State John Kerry was right when he said, “In America you have a right to be stupid – if you want to be,” especially when it comes to drinking soda.

Kerry was talking to German students about political liberty, but we also take seriously our freedom to make bad food decisions.

Three-fourths of Americans disapprove of New York City’s ban on gigantic sodas, which a judge invalidated March 11, and about six in 10 say no to “sin” taxes on unhealthy foods and sodas, the Associated Press reported in January.

   

Downing the equivalent of 16 packets of sugar – the amount in a 20-ounce can of regular soda – is a personal choice, people say. OK, but where does personal freedom stop and public responsibility start?

Smoking was once considered a personal choice, but when the preponderance of evidence proved its health hazards, the government took action. Americans balked at first but then accepted warning labels on cigarette packages and higher taxes on cigarettes. Today, most people appreciate bans on smoking in offices, bars, restaurants, shops, movie theatres and sporting events. We’re glad not to breathe second-hand smoke or wear it in our hair and clothes.

Similarly, we’ve come to appreciate seat belts and, in all but a few states, motorcycle helmet laws that limit our freedom for the greater good of survival.

Mayor Michael Bloomberg’s soda rule has flaws, but its intent – “to address the super-size trend and reacquaint New Yorkers with smaller portion sizes, leading to a reduction in consumption of sugary drinks” – is sensible. There’s a consensus that Americans are getting fatter and sicker, and that soft drinks are partly – but not totally – to blame.

 “There is very real evidence now that soft drinks are related to weight gain and obesity and, most certainly, diabetes,” nutrition expert Dr. Walter Willett of Harvard School of Public Health told NBC News.

Diabetes is epidemic, Willett and others say. Among Americans 20 and older, 11.3 percent have diabetes, and among those 65 and older, nearly one in three have the disease, according to the American Diabetes Association, which says the cost of diabetes last year reached $245 billion, up 41 percent in just five years.

 

A 2004 Harvard study found that women who drank one or more sugary drinks per day had an 83 percent greater risk of developing Type 2 diabetes than women who rarely drank them.

Limiting consumption of sugary drinks in hopes of improving health is New York’s approach. But state Supreme Court justice Milton Tingling said it was arbitrary, capricious and full of loopholes. The rule applied to cafes and restaurants but not to convenience stores. It regulated sodas but not milkshakes or alcoholic beverages, which have more calories. It allowed unlimited soda refills, effectively gutting the restriction.

Portion control would create “an administrative Leviathan,” Tingling wrote a day before the rule was to go into effect.

Bloomberg, dubbed “Nanny B” by critics, is appealing the ruling. He says he’s confident the rule will stand and will become a model for other localities. New York was among the first to eliminate trans-fats in prepared foods and require calorie counts on menus.

The American Heart Association recommends that women have no more than six teaspoons and men nine teaspoons of added sugar a day. Americans eat about 22 ½ teaspoons a day in everything from soda and candy to cakes and sweetened yogurt.

Consumption of sugary drinks already has declined, says the American Beverage Association, which notes the average number of calories in a beverage serving has dropped 23 percent since 1998 because more people are drinking diet and low-cal drinks and bottled water.

If Bloomberg is right that sugar is the next tobacco, could a sugar tax be waiting in the wings? President Barack Obama has said a tax is worth exploring. Congress rejected a sugar tax as part of health reform because it’s so unpopular.

For now, we have the right to be stupid – without paying one penny more.

© 2013 Marsha Mercer. All rights reserved.

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Joe Biden's fun times -- March 10, 2013 column

By MARSHA MERCER

At the annual Gridiron Club dinner put on by Washington journalists Saturday night, a singer portraying Joe Biden bragged about the tough jobs he has tackled as vice president.

“I’m not Barack! I am Joe Biden,” he sang to the tune of “I am a Rock.” He’ll serve President Obama’s second term, the Biden character proclaimed. “Not gonna wait til two-thousand sixteen.”

Don’t let anyone tell you “There are no second acts in American lives.” F. Scott Fitzgerald, who wrote that puzzling line, never knew Joe Biden.

Biden is on track to be one of the most influential vice presidents in history. And, no, that’s not damning with faint praise.

It’s a great time to be Joe Biden.

While the boss’s position was still “evolving,” Biden said on NBC’s “Meet the Press” in May that he himself was “absolutely comfortable” with gay marriage. Nudged, Obama came around a few days later, electrifying gay supporters.

  

After the Newtown massacre, Obama turned to Biden to explore gun control efforts. While prospects are dim of much action on Capitol Hill, Biden has kept gun control advocates allied with the president.  

And it was Biden who rescued the nation from the fiscal cliff. Drawing on his four decades in Washington, Biden negotiated a deal with Senate Minority Leader Mitch McConnell, R-Ky., just hours before the Jan. 1 deadline.

No second acts? By proving his own worth as Obama’s right-hand man, Biden’s own star is rising as a leading presidential contender in 2016. Not bad for a guy who had to abandon his 1988 presidential quest amid charges that he had plagiarized other politicians’ speeches.

   

A video surfaced showing parts of Biden’s campaign speech and parts of a speech by British Labor Party leader Neil Kinnock. Biden insisted that he’d failed to attribute the passages to Kinnock only that once, but reporters uncovered similarities with other politicians’ speeches and an unfortunate F in law school for plagiarism. 

 

Voters had all but forgotten that unpleasantness by 2008, when Biden ran again for president. This time he made news by saying what he actually thought about another Democratic contender.

“You got the first mainstream African American who is articulate and bright and clean and a nice-looking guy,” Biden told an interviewer in January 2007. “”I mean that’s storybook, man.”

In Washington, saying what you think is a gaffe, and Biden is a gaffe machine. He’s a character – a boisterous, deal-making politician of the old school who loves to hear himself talk. Obama obviously didn’t hold a grudge, and Biden’s loose lips never seem fatal

.

Biden has known great personal tragedy. He was 29, married with three little kids when he was elected to the Senate in 1972. Weeks later, just before Christmas, his wife and one-year-old daughter were killed in a car crash in Delaware. His young sons, Beau, 4, and Hunter, 3, survived with serious injuries. Biden was on Capitol Hill that afternoon, interviewing potential staffers.

In his shock and grief, Biden planned to give up his Senate seat and return home, but he was persuaded to keep his job. He took the official oath in his sons’ hospital room and began the daily Amtrak commute from Wilmington to Washington. He continued the routine for 36 years.

No second acts? Biden married Jill Jacobs in 1977, and their daughter Ashley was born in 1981.   

After decades in public life, Biden has no shortage of critics. Fox News chief Roger Ailes is quoted in a new book calling Biden “dumb as an ashtray.”

Love him or loathe him, Biden, 70, always seems to be having more fun than most people. At the ceremonial swearing-in of new senators in the old Senate chamber in January, Biden was a jovial, joking host.

“Spread your legs,” he told a new senator’s husband. “You’re going to be frisked.”

Biden’s entertainment quotient was so high that fans petitioned for a C-SPAN reality show trailing him on his daily rounds.

No second acts? Biden perseveres. He may yet have a third.

© 2013 Marsha Mercer. All rights reserved.

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