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Religious issues flock to US Supreme Court

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Linda Greenhouse has a very interesting column on what a mess the Roberts Court has created with its Hobby Lobby decision. From her column:

. . .  At issue are the options the Obama administration has made available to a category of employers deemed “religious nonprofit organizations” that object to including birth control in their employee health plans. These groups differ from “religious employers,” a category essentially limited to churches, which are deemed exempt under the Affordable Care Act regulations. Rather, these are religiously affiliated nonprofits such as colleges, seminaries and religious orders like the Little Sisters of the Poor, which runs nursing homes and describes itself as an equal-opportunity employer in its hiring practices for lay staff members. These nonprofits do have to provide contraception coverage unless they accept the administration’s offer to opt out of the requirement by passing the legal obligation on to their insurance carriers.

Under pre-existing regulations that the Obama administration fine-tuned in the aftermath of the Hobby Lobby decision, all these organizations have to do to qualify for the exemption is to ask for it, by filling out a two-page form, or even more simply by sending a letter to the Department of Health and Human Services declaring that they have a religious objection to paying for birth control. At that point, their obligation ceases and the coverage has to be provided by the organizations’ insurance carrier or, in the case of a self-insured plan, by the third-party administrator, without any financial involvement by the organization.

Dozens of these organizations promptly filed suit claiming that they couldn’t possibly fill out the form or sign the letter because to do so would make them complicit in the ultimate choice their employees might make to use birth control.

It’s important to understand the difference between these cases and the lawsuit by Hobby Lobby’s owners. As a for-profit company, Hobby Lobby had no accommodation available. It had either to provide the coverage or pay a huge fine. In fact, the court’s majority opinion, written by JusticeSamuel A. Alito Jr., strongly suggested that the problem, as the majority saw it, could be solved if only the administration would offer Hobby Lobby the same choice it was giving the religious nonprofits. Justice Alito wrote that the Department of Health and Human Services “itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.” In a footnote, he added: “The less restrictive approach we describe accommodates the religious beliefs asserted in these cases.” Justice Anthony M. Kennedy, who provided the fifth vote to the majority, wrote in a concurring opinion that the accommodation as described “does not impinge on the plaintiffs’ religious beliefs.”

The Hobby Lobby case had not been argued on this basis, and Justice Alito noted that the court was not deciding whether such an accommodation would suffice “for purposes of all religious claims.” To that extent, the statements were nonbinding “dicta,” not part of the holding. But they have had a powerful influence in the lower courts. Cases challenging the adequacy of the accommodation as applied to religious nonprofits have now made their way through six of the 12 federal appellate circuits. Remarkably, every court has rejected the religious claims.

Not all the decisions have been unanimous; there have been dissenting opinions by individual judges, a fact that may lead the Supreme Court to accept one or more of the pending appeals despite the absence of the “conflict in the circuits” that the court usually waits for. But, notably, judges across the ideological spectrum have ruled for the government. One of the country’s most conservative federal judges, Jerry E. Smith, wrote the opinion last month for a unanimous panel of one of the country’s most conservative courts, the United States Court of Appeals for the Fifth Circuit.

The Supreme Court’s Hobby Lobby decision “is of no help to the plaintiffs’ position,” Judge Smith wrote in East Texas Baptist University v. Burwell.The reason, he explained, was “not just that there are more links in the causal chain here than in Hobby Lobby.” Rather, it was that “what the regulations require of the plaintiffs here has nothing to do with providing contraceptives.”

It’s worth quoting Judge Smith at some length, including his reference to the Religious Freedom Restoration Act, the federal law under which the Hobby Lobby case and the current cases were brought:

“The plaintiffs urge that the accommodation uses their plans as vehicles for payments for contraceptives. But that is just what the regulations prohibit. Once the plaintiffs apply for the accommodation, the insurers may not include contraceptive coverage in the plans. The insurers and third-party administrators may not impose any direct or indirect costs for contraceptives on the plaintiffs; they may not send materials about contraceptives together with plan materials; in fact, they must send plan participants a notice explaining that the plaintiffs do not administer or fund contraceptives. The payments for contraceptives are completely independent of the plans. . . The acts that violate their faith are the acts of the government, insurers, and third-party administrators, but R.F.R.A. does not entitle them to block third parties from engaging in conduct with which they disagree.”

And of course, the choices and the rights of third parties, in this instance, the female employees, are the whole point. It is not only that female employees, and not their bosses, make the choice to use birth control. It is that the employers’ religious objections, if honored, would cause these third parties actual harm — harm that would be avoided if the employers simply signed the form or sent the letter. The extreme to which the plaintiffs’ refusal takes their “complicity” argument is what the appeals courts have found so alarming. The organizations don’t want to pay for birth control and they don’t want anyone else to pay for it either.

The United States Court of Appeals for the 10th Circuit had this to say in a decision last week, Little Sisters of the Poor v. Burwell: “Plaintiffs sincerely oppose contraception, but their religious objection cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled.”

The Religious Freedom Restoration Act, the court said, “does not prevent the government from reassigning obligations after an objector opts out simply because the objector strongly opposes the ultimate goal of the generally applicable law. Plaintiffs’ complicity argument therefore fails. Opting out would eliminate their complicity with the mandate and require only routine and minimal administrative paperwork, and they are not substantially burdened by the government’s subsequent efforts to deliver contraceptive coverage in their stead.”

Writing in The National Catholic Reporter last week, Michael Sean Winters, author of a blog on the publication’s website called Distinctly Catholic, praised the 10th Circuit decision, saying: “If you think the form used to object to participation is itself a form of participation, I am not sure how we, as a nation, can ever carve out religious exemptions.”

Evidently, the religious groups pressing this litigation would rather keep fighting than declare victory. . .

Read the whole thing.

Written by LeisureGuy

23 July 2015 at 9:41 am

At Breakfast to Talk El Chapo, Drug War Veterans Serve Up Cynicism

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Very interesting report by Ginger Thompson in ProPublica:

The slight man at the breakfast table seemed more like an evangelical minister than someone who once brokered deals between Mexican drug lords and state governors. He wore a meticulously pressed button-down, a gold watch, gold-rimmed glasses, and a gold cross around his neck. His dark brown hair was styled in a comb-over. And when his breakfast companions started to tuck into their bowls of oatmeal and plates of salmon benedict, he cleared his throat and asked for a moment of silence.

“Would you mind if I say grace?” he asked.

The gathering last week at Le Peep café in San Antonio would seem unusual almost anywhere except south Texas, where Mexico kind of blends into the United States — and so does the drug trade. Seated next to the cartel operative was a senior Mexican intelligence official. And next to him was a veteran American counternarcotics agent. They bowed their heads for prayer and then proceeded to talk a peculiar kind of shop.

A few days earlier, Mexico’s most powerful drug trafficker, Joaquin “El Chapo” Guzman, had escaped again from one of that country’s maximum-security prisons. No one in this deeply sourced group was surprised. Nor were they particularly interested in the logistical details of the escape, although they clearly didn’t believe the version they’d heard from the Mexican government.

They were convinced it was all a deal cut at some link in the system’s chain. Our breakfast minister even thought that Chapo had likely walked out the front door of the jail, and that the whole tunnel-and-motorcycle story had been staged to make the feat sound so ingenious that the government couldn’t have foreseen it, much less stopped it.

Such an outlandish notion may not be surprising to anyone who knows anything about Mexico. But as someone who lived there for 10 years, and reported on the country almost twice that long, what surprised me were the men’s theories on why anyone in the Mexican government would have been interested in such a deal. Perhaps, I wondered aloud, Chapo had possessed information that could have incriminated senior Mexican officials in the drug trade and, rather than try him, they had agreed to turn a blind eye to his escape?

The heads around the table shook back and forth. Chapo, they believed, had been thrown back into the drug world to — wait for it — restore order. Things have gotten that crazy.

“When I first heard the news, I thought this is either a good thing or a bad thing,” said the cartel operative. “Either this is a sign of how far things in Mexico are out of control. Or this shows that the government is willing to risk a certain amount of international embarrassment in order to restore peace for Mexican people.”

Surely I’d been out of Mexico too long, I told the table. How could anyone believe that Chapo’s escape would be good for public security? . . .

Continue reading.

They make a good case.

Written by LeisureGuy

20 July 2015 at 1:11 pm

You know that insurance companies will do anything possible to avoid paying, and here’s another example

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Roni Cari Rabin reports in the NY Times:

There’s no video of the altercation between Monroe Bird III, a 21-year-old sitting in a car with a friend, and Ricky Leroy Stone, 56, a security guard who found them one night in the parking lot of an apartment complex in Tulsa, Okla.

But the tragic culmination of their encounter is not disputed: Mr. Stone drew his gun and shot Mr. Bird, leaving him paralyzed from the neck down.

Three months later, as he lay in the hospital hooked to a ventilator, Mr. Bird’s insurance company declined to cover his medical bills. The reason? His injuries resulted from “illegal activity.”

Yet Mr. Bird was not convicted of any crime in connection with the incident. He was not even charged.

Without insurance, Mr. Bird’s family could not move him to a rehabilitation center specializing in spinal cord injuries. He was discharged from the hospital and died at home last month from a preventable complication often seen in paralyzed patients.

The incident joins a disturbing litany of cases in which black men have been shot by white men in law-enforcement capacities. But Mr. Bird’s story comes with a particularly bitter coda: The plan’s refusal to pay has left his family owing as much as $1 million in medical bills and, experts say, shines a light on a little-known loophole buried in the fine print of many health plans.

It is not clear how often insurers deny medical coverage based on allegations of illegal activity, but cases like Mr. Bird’s “are more common than people think,” said Crystal Patterson, an attorney in Minneapolis who specializes in fiduciary law.

Insurers have long relied on allegations of illegal activity to deny coverage to patients injured in a variety of contexts, from traffic infractions to gun accidents. The judicial rationale is that “we don’t want to reward illegal activity,” she said.

In one court case, . . .

Continue reading.

Businesses will do anything in order to increase profits, and evidence show that they are unrestrained in that effort by laws, morality, ethics, or anything else: if they think that they can get away it, at least to the tune of a net profit, they’ll do it.

Written by LeisureGuy

20 July 2015 at 10:58 am

Posted in Business, Daily life

The end of capitalism has begun

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Interesting article by Paul Mason in The Guardian. It makes sense: a society based on the simple idea that anything that increases profits is good has too narrow a foundation to long endure.

The red flags and marching songs of Syriza during the Greek crisis, plus the expectation that the banks would be nationalised, revived briefly a 20th-century dream: the forced destruction of the market from above. For much of the 20th century this was how the left conceived the first stage of an economy beyond capitalism. The force would be applied by the working class, either at the ballot box or on the barricades. The lever would be the state. The opportunity would come through frequent episodes of economic collapse.

Instead over the past 25 years it has been the left’s project that has collapsed. The market destroyed the plan; individualism replaced collectivism and solidarity; the hugely expanded workforce of the world looks like a “proletariat”, but no longer thinks or behaves as it once did.

If you lived through all this, and disliked capitalism, it was traumatic. But in the process technology has created a new route out, which the remnants of the old left – and all other forces influenced by it – have either to embrace or die. Capitalism, it turns out, will not be abolished by forced-march techniques. It will be abolished by creating something more dynamic that exists, at first, almost unseen within the old system, but which will break through, reshaping the economy around new values and behaviours. I call this postcapitalism.

As with the end of feudalism 500 years ago, capitalism’s replacement by postcapitalism will be accelerated by external shocks and shaped by the emergence of a new kind of human being. And it has started.

Postcapitalism is possible because of three major changes information technology has brought about in the past 25 years. First, it has reduced the need for work, blurred the edges between work and free time and loosened the relationship between work and wages. The coming wave of automation, currently stalled because our social infrastructure cannot bear the consequences, will hugely diminish the amount of work needed – not just to subsist but to provide a decent life for all.

Second, information is corroding the market’s ability to form prices correctly. That is because markets are based on scarcity while information is abundant. The system’s defence mechanism is to form monopolies – the giant tech companies – on a scale not seen in the past 200 years, yet they cannot last. By building business models and share valuations based on the capture and privatisation of all socially produced information, such firms are constructing a fragile corporate edifice at odds with the most basic need of humanity, which is to use ideas freely.

Third, we’re seeing the spontaneous rise of collaborative production: goods, services and organisations are appearing that no longer respond to the dictates of the market and the managerial hierarchy. The biggest information product in the world – Wikipedia – is made by volunteers for free, abolishing the encyclopedia business and depriving the advertising industry of an estimated $3bn a year in revenue.

Almost unnoticed, in the niches and hollows of the market system, whole swaths of economic life are beginning to move to a different rhythm. Parallel currencies, time banks, cooperatives and self-managed spaces have proliferated, barely noticed by the economics profession, and often as a direct result of the shattering of the old structures in the post-2008 crisis.

You only find this new economy if you look hard for it. In Greece, . . .

Continue reading.

Written by LeisureGuy

17 July 2015 at 1:35 pm

Hipaa’s Use as Code of Silence Often Misinterprets the Law

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Full disclosure: I’ve run into the misuse of Hipaa with regard to family members myself. Paula Span discusses how health professionals often have incorrect ideas about the law:

How do people use, misuse or abuse Hipaa (Health Insurance Portability and Accountability Act), the federal regulations protecting patients’ confidential health information? Let us count the ways:

■ Last month, in a continuing care retirement community in Ithaca, N.Y., Helen Wyvill, 72, noticed that a friend hadn’t shown up for their regular swim. She wasn’t in her apartment, either.

Had she gone to a hospital? Could friends visit or call? Was anyone taking care of the dog?

Questions to the staff brought a familiar nonresponse: Nobody could provide any information because of Hipaa.

“The administration says they have to abide by the law, blah, blah,” Ms. Wyvill said. “They won’t even tell you if somebody has died.”

■ Years ago, Patricia Gross, then 56, and a close friend had taken refuge in a cafe at Brigham and Women’s Hospital in Boston, where Ms. Gross’s husband was dying of cancer. She was lamenting his inadequately treated pain and her own distress when a woman seated at a nearby table walked over.

“She told me how very improper it was to be discussing the details of a patient’s treatment in public and that it was a Hipaa violation,” Ms. Gross recalled.

■ In 2012, Ericka Gray repeatedly phoned the emergency room at York Hospital in York, Pa., where her 85-year-old mother had gone after days of back pain, to alert the staff to her medical history. “They refused to take the information, citing Hipaa,” said Ms. Gray, who was in Chicago on a business trip.

“I’m not trying to get any information. I’m trying to give you information,” Ms. Gray told them, adding that because her mother’s memory was impaired, she couldn’t supply the crucial facts, like medication allergies.

By the time Ms. Gray found a nurse willing to listen, hours later, her mother had already been prescribed a drug she was allergic to. Fortunately, the staff hadn’t administered it yet.

Each scenario, attorneys say, involves a misinterpretation of the privacy rules created under the Health Insurance Portability and Accountability Act. “It’s become an all-purpose excuse for things people don’t want to talk about,” said Carol Levine, director of the United Hospital Fund’s Families and Health Care Project, which has published a Hipaa guide for family caregivers.

Intended to keep personal health information private, the law does not prohibit health care providers from sharing information with family, friends or caregivers unless the patient specifically objects. Even if she does object, is not present, or is incapacitated, providers may use “professional judgment” to disclose pertinent information to a relative or friend if it’s “in the best interests of the individual.”

Hipaa applies only to health care providers, health insurers, clearinghouses that manage and store health data, and their business associates. Yet when I last wrote about this topic, a California reader commented that she’d heard a minister explain that the names of ailing parishioners could no longer appear in the church bulletin because of Hipaa.

Wrong. Neither a church nor a distraught spouse is a “covered entity” under the law.

Last month, Representative Doris Matsui, Democrat of California and co-chairwoman of the Democratic Caucus Seniors Task Force, who has heard similar complaints from constituents, introduced legislation to clarify who can divulge what and under what circumstances. The proposed bill would require the Department of Health and Human Services, which last year issued new Hipaa “guidance,” to make that statement part of its regulations and to create model training programs for providers and administrators, patients and families.

“A lot of times it’s just misunderstanding what is and isn’t allowed under Hipaa,” Representative Matsui said in an interview.

So, what is and isn’t? . . .

Continue reading.

I don’t understand why the acronym is treated as a proper noun. My inclination would be to spell it in all caps: HIPAA, just as I would use “NATO” rather than “Nato.”

Written by LeisureGuy

17 July 2015 at 10:12 am

Despite decades of accepted science, California and Arizona still miscount their water supplies

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Abrahm Lustgarten reports in ProPublica:

DEEP BENEATH the bleached-out, dusty surface of the drought-stricken West is a stash of water sequestered between layers of rock and sometimes built up over centuries.

Officials in the Colorado River basin states have long treated this liquid treasure as a type of environmental retirement account — an additional supply of water they can raid to get through the driest years and make up for the chronic overuse of the rivers themselves.

In recent years, the withdrawals have taken on even more importance: At least 60 percent of California’s water now comes from underground, some researchers say. Arizona, staring down imminent rationing of Colorado River water, pumps nearly half its supply from aquifers.

But in allowing their residents to tap underground resources this way, regulators and legislators in Southwestern states have ignored an inconvenient truth about how much water is actually available for people to use: In many places, groundwater and surface water are not independent supplies at all. Rather, they are interconnected parts of the same system.

The science has been clear for the better part of a century. Drawing groundwater from near a stream can suck that stream dry. In turn, using all the water in streams and rivers lessens their ability to replenish the aquifers beneath them. Farmers who drill new wells to supplement their supplies with groundwater are often stealing water from their neighbors who hold rights to the rivers above them. This understanding has been the foundation of the U.S. Department of the Interior’s water accounting for decades, and was used by the U.S. Supreme Court to decide one of the most significant water contests in history.

Yet California and Arizona — the two states water experts say are facing the most severe water crises — continue to count and regulate groundwater and surface water as if they were entirely separate.

“States have their own take on this. Or they choose to not address it at all,” said Stanley Leake, a hydrologist with the U.S. Geological Survey and a leading expert on properly accounting for the connection between ground and surface waters in the West. “In some cases they pretend that there is no connection.”

Leaders in California and Arizona acknowledge that their states have done this, at least in part to avoid the grim reckoning that emanates from doing the math accurately. There is even less water available than residents have been led to believe.

If these states stopped effectively double-counting their resources, they would have to change laws, upend traditional water rights and likely force farmers and cities to accept even more dramatic cuts than they already face — a political third rail.

“The politics of water are more challenging than any other issue the state faces,” said Fran Pavley, a California state senator who helped draft a much-praised package of state laws passed last year regulating groundwater withdrawals for the first time.

Tucked into Pavley’s package was a little-noticed provision that explicitly prohibits California state regulators from addressing the interconnection between groundwater and surface water in local water plans until 2025, a compromise meant to give local water agencies a leisurely runway to adjust to a new way of counting.

Pavley said the prospect of more immediately acknowledging the overlap between ground and surface waters threatened to derail the legislation entirely, triggering fierce opposition from the Agricultural Council of California, the California Chamber of Commerce and other industry groups.

“Those who have unlimited water supply don’t particularly like the idea of changing that,” she said. “You can’t manage what you don’t measure.”

Arizona law, too, treats groundwater and surface water as unconnected, as does Arizona’s state water plan, which purports to account for water resources and to estimate how many years of supply remain. Its authors know better, Arizona’s top water official acknowledged, but rewriting them to be more truthful would be politically impossible and economically damaging.

“We know for a fact that pumping aquifers can dry up rivers,” said Thomas Buschatzke, the director of the Arizona Department of Water Resources, who says his policy is bound by the Legislature and court rulings. “But it is the law … it would be a huge upset to the economy to do away with that.” . . .

Continue reading. There’s a lot more to the article.

Denial is a primitive but very strong response to problems. In this situation, denial means that when states eventually have no choice but to face reality they will be in a much worse position to find solutions. The “huge upset to the economy” that truthful and accurate reporting of reserves would cause is nothing to the upset that will occur when the West truly does hit the brick wall and run out of water. But better not to think about that, yes? Just let it happen…

Written by LeisureGuy

17 July 2015 at 8:52 am

Obama takes a very relaxed approach to implementing Dodd-Frank anti-corruption rule: 5 years so far, and no hurry shown

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I continue to think that Obama is likely to reap big rewards from Wall Street once he’s out of office for the way he has protected them. Jon Schwarz reports in The Intercept:

When Barack Obama signed the Dodd-Frank financial reform bill five years ago, on July 21, 2010, he looked extremely pleased with himself. It had been a tough fight, he said: “We had to overcome the furious lobbying of an array of powerful interest groups and a partisan minority determined to block change.” But now, Obama proclaimed, the bill’s reforms “will become the law of the land.”


The reality of U.S. politics is that good ideas don’t win and take effect just because they’ve “become the law.” Yes, to get even that far, they have to have somehow threaded their way through a campaign system ruled by money instead of people; passed a House of Representatives overflowing with members from bizarrely gerrymandered districts; and made it past a filibuster in the anti-democratic Senate. But that is often just the start of the truly bloody trench warfare.

One case study is Dodd-Frank’s Section 1504. Congress, on July 21, 2010, gave the Securities and Exchange Commission 270 days to issue a rule on how exactly to implement it. Today, 1,821 days later, there still is no rule.

Section 1504 is intended to address a terrible problem, one so common it has two names: “the paradox of plenty” and “the resource curse.” Countries with lots of oil, gas and mineral wealth are, oddly enough, very frequently poor, corrupt and polluted.

What happens is that big multinational corporations have enormous incentives to bribe government officials so they can get the right to extract and sell the country’s natural resources. That, in turn, leads those government officials to spirit away vast sums of money that rightfully belong to the people to London or Zurich. Not only do ordinary citizens miss out on the looting, but they tend to suffer from the ancillary corruption, wasteful spending, military adventurism and instability.

Section 1504 requires corporations traded on U.S. stock exchanges to publicly disclose the payments they make to governments for natural resources on all of their projects around the world.

People in, say, Angola would learn exactly how much money their government has received from big oil companies, making it harder for their leaders to hide and pocket as much of it.

Meanwhile, knowing what kind of a deal Angola struck, other governments could use that information to drive harder bargains.

The SEC did finally issue a rule for Section 1504 in August 2012, after a lawsuit by Oxfam America. But then the American Petroleum Institute, the main trade group for the oil industry, challenged the rules, and they were vacated by a U.S. District Court. Now the SEC claims it will issue a “proposed rule” — only the first step in the process — in April 2016.

Meanwhile, during the past five years, . . .

Continue reading.

It’s quite obvious that stalling the rule is an Obama Administration priority.

Written by LeisureGuy

16 July 2015 at 3:45 pm


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