Army Lt. Col. Terrence Lakin: Birther, Oath Keeper, Newest Astroturfer

The noble-sounding but mysterious organization Safeguard Our Constitution has sent out a noble-sounding press release today launching a fund-raising effort for a defense fund for Lt. Col. Terrence Lakin. Evidently Lt. Col. Lakin is having difficulty living with his oath to uphold the Constitution because he claims President Obama has not sufficiently proven that he is a natural-born citizen.

Safeguard Our Constitution claims to be part of the American Patriot Foundation, a non-profit organization established in 2003. Other than the initial return, no other official filings have been made.

From the press release:

"I am today compelled to make the distasteful choice to invite my own court martial, in pursuit of the truth about the president's eligibility under the constitution to hold office", said active duty Army Lt. Col. Terrence Lakin. The American Patriot Foundation, a non-profit group incorporated in 2003 to foster appreciation and respect for the U.S. Constitution, immediately announced it has set up a legal defense fund and will provide Lt. Col. Lakin with a top-flight defense team.

I'm not going to address the birther aspects of this nonsense again. It's nothing more than an effort to de-legitimize the President and keep the ignorant masses stirred in frothy stupors. Nothing I say or show would convince a dedicated birther otherwise, or even an Oath Keeper.

What Women Need to Know in Health Care (Reform) News

Some absolutely riveting and crucial news out today via the National Partnership for Women and Families in their daily Women's Health Policy Report. Using quotes from the Report, I've summarized it quickly for you below but you should absolutely go read the full articles because this will affect your health care greatly.

1. Women will no longer be charged more for health insurance simply based on their gender

Health Reform Law Prohibits Gender Rating, Offers Other Benefits for Women's Health

March 30, 2010 — Under the recently signed health reform law (HR 3590), health insurance companies will no longer be able to charge women more than men for the same insurance policies, ending a practice known as "gender rating," the New York Times reports. In the past, insurance companies "took full advantage" of the lack of restrictions on gender rating in the individual insurance market, arguing that women should pay more for health coverage because they tend to use the health system more than men, the Times reports.

2. The court ruled: lockdown on BRCA1 and BRCA2 gene patents (ovarian and breast cancer) invalidated, patents deemed improperly granted

Patents on Breast, Ovarian Cancer Genes Invalidated

March 30, 2010 — In a ruling that could have "far-reaching" implications for genetic research and the medical industry, a U.S. District Judge Robert Sweet on Monday invalidated seven patents related to the BRCA1 and BRCA2 genes, mutations of which have been linked to breast and ovarian cancer, the New York Times reports (Pollack/Schwartz, New York Times, 3/29).

The decision was the culmination of a case filed in 2009 by the American Civil Liberties Union and the Public Patent Foundation against Myriad Genetics and the University of Utah Research Foundation that claimed the patents hindered patients' ability to secure high-quality genetic breast cancer testing (Koppel/Wang, Wall Street Journal, 3/30). Sweet ruled that the patents were "improperly granted" because they involved the "law of nature," which prohibits the patenting of human DNA. According to the Times, the ruling likely will be appealed (New York Times, 3/29).

ACLU attorney Chris Hansen called the decision "a strong advance for women's health and for science," adding that "it would enormously increase women's opportunities to receive testing and diagnoses and would liberate research opportunities for researchers all over the country" (Neumeister, AP/San Diego Union-Tribune, 3/29).

3. Three states infringe on women's legal right to choose, one makes women "legal guinea pigs"

March 30, 2010 — Three states recently took action on reproductive health-related measures. Summaries appear below.

~ Idaho: Gov. Butch Otter (R) has allowed a bill (SB 1353) that expands so-called "conscience" protections for medical workers to become law without his signature, the Spokane Spokesman-Review reports (Russell, Spokane Spokesman-Review, 3/29). . . Otter said that he had some reservations about the bill's implications for patients' rights and living wills but that he was willing to let it become law to see its effect on patients (Spokane Spokesman-Review, 3/29). [emphasis mine.]

~ Louisiana: A bill (SB 528) recently introduced in the Louisiana Senate would require doctors to perform an ultrasound two hours before an abortion, except in medical emergencies, and provide women with a sealed copy of the image, the New Orleans Times-Picayune reports.

~ Oklahoma: The state House on Monday passed by significant margins three separate antiabortion bills, all of which have also passed the Senate, the AP/Oklahoman reports.

Freedom of Speech and Fred Phelps

I fielded a question about Fred Phelps recently on Facebook that led me to write this post.  I've had several questions about the First Amendment lately, so I thought I'd explain a bit more about "free speech" here on MOMocrats.

I'll try to keep this free from legalese, which also means I'm going to condense much of the factual and legal background and eliminate the use of endless citations. Normally, almost everything I write in a legal brief is followed by a citation of law or authority.  This is not a legal brief.

The Question:

On Facebook, my milfam friend Carrie asks:

So the Marine's father who sued Fred Phelps has been ordered to pay Phelps' court costs. Now maybe you know but does the constitution protect people to protest ANYWHERE they want, or just their right to protest?

Background:

Fred Phelps is that fabulous guy from the Westboro Baptist Church who claims to be a "Christian" and travels the country with Hallmark Hall of Fame placards with such lovely quotes as "God Hates Fags," "You're Going to Hell," "Thank God for Dead Soldiers," and my personal favorite, "Semper fi fags."  Classy guy, I know.

Mr. Phelps and his misguided followers decided to protest, along with their lovely signs, at the funeral of Lance Corporal Matthew Snyder, who was killed in action in Iraq in 2006.  His family was understandably displeased.  Al Snyder, Matthew's father, sued Westboro Baptist Church, Mr. Phelps and several members of his family/church (the "Defendants") in federal court in Maryland.  He argued that the members of the Westoboro church invaded his privacy and caused intentional infliction of emotional distress.  Mr. Snyder won almost $11 million at trial.  (This was later reduced to $5 million by the district court.)

Phelps appealed and the Fourth Circuit Court of Appeals reversed the decision of the trial court in September of 2009.  No, Phelps was not represented by the ACLU, but they did file an amicus (friend of the court) brief in support of Phelps, et al.

The case is in the news more recently because Phelps, et al. petitioned the court for costs and the 4th Circuit ordered Mr. Snyder to pay Phelps about $16,000 to cover the costs of the ongoing litigation. 

The Fourth Circuit summed up the two sides quite nicely in their opinion:

Defendants’ rationale was quite simple. They traveled to Matthew Snyder’s funeral in order to publicize their message of God’s hatred of America for its tolerance of homosexuality. In Plaintiff’s eyes, Defendants turned the funeral for his son into a "media circus for their benefit."

The Defendants complied with local ordinances and police directions regarding staying a certain distance from the church.  Mr. Snyder did not see the signs until he later saw a news broadcast with footage of the Phelps family at the Church.

Congress shall make no law...abridging the freedom of speech.

Let's start with something we should all recognize from the Bill of Rights, the First Amendment to the Constitution.  It states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(The First Amendment also applies at the state and local level through the Fourteenth Amendment, in case you were wondering.)  Not all speech is protected by the First Amendment.  It's a balancing act.  Speech that causes physical harm isn't OK.  You also won't be protected by the First Amendment if you decide to say something about an individual that is factually wrong.  (You can't erect a sign in front of your house that says your neighbor is a pedophile unless he actually is.)  However, just because speech is hateful or offensive does not mean that it can be suppressed.  The government can place reasonable "time, place and manner" restrictions on speech but the restrictions have to be narrowly tailored and balance the interests, and rights, of everyone involved.

Here, Mr. Snyder's tort awards could only be upheld if the award was consistent with the Defendants' First Amendment guarantees. See Food Lion v. Capital Cities/ABC, Inc., 194 F.3d 505, 522 (4th Cir. 1999).  Speech, even if hateful and offensive, can still be protected speech if it isn't physically harmful or disruptive and it doesn't involve false statements about an individual.

(This is a gross oversimplification of the law here, but I'm trying to spare you the minutiae of the law regarding general speech versus speech clearly directed at an individual. Let's just say there was some debate over whether the signs carried by Phelps et al. were general statements of opinion, such as "God hates America," or specific factual statements aimed at the Phelps family such as "You're going to hell.")

The Fourth Circuit reversed the district court on two issues:

1. The Fourth Circuit explained that the district court erred in permitting some instructions to the jury that allowed the jury to determine something that is an issue of law, mainly whether or not the Defendants' "speech" (signs, etc...) were entitled to Constitutional protection.  The scope of protection afforded under the First Amendment is a legal question, not a factual one.  Juries only decide issues of fact; courts determine issues of law.
2. The signs carried by the Defendants were entitled to Constitutional protection because they "[did] not assert provable facts about an individual, and they clearly contain[ed] imaginative and hyperbolic rhetoric intended to spark debate about issues with which the Defendants [were] concerned."

In other words, because Phelps' signs weren't like the front yard sign about your neighbor's pedophilia, something that can be proved or disproved, they were considered "hyperbolic rhetoric" protected by the First Amendment.

The Fourth Circuit closed with a quote from Judge Hall that I'll share with you:

Judges defending the Constitution "must sometimes share [their] foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people."

(citing Kopf v. Skyrm, 993 F.2d 374, 380 (4th Cir. 1993).). The First Amendment may protect some pretty nasty people and some horribly hateful words, but we have to hold our noses and uphold the Constitution.

It's Not Over

Now, lest you think that this is the end of the matter on this subject, let me assure you it's not. 

Snyder has appealed the Fourth Circuit's decision to the Supreme Court and the Court has agreed to hear it.  This generally means the law is not clear, the Circuit Courts of Appeal are not in agreement, or the Supreme Court just thinks it's time to clarify the state of the law. Here, there is no clear split in the case law of the federal circuit courts, but we have to remember that it only takes 4 of the 9 justices to grant a Writ of Certiorari (the petition to the Supreme Court to hear a case).

It could be that the Court wants to clarify the issue I alluded to regarding factual or general speech directed at individuals.  Courts have also tended to allow more restrictions on speech at funerals because the funeral goers are pretty much a "captive audience." The Supreme Court might be ready to expand protections for those who are a "captive audience."  I seriously doubt it though.  Expanding those protections would also expand protections for people arriving at abortion clinics during a protest.  Somehow I can't see the Roberts Court telling abortion protesters they have to back off.

My Two Cents

What about Carrie's question?  Does the Constitution allow people to protest wherever they want?

The answer is no, it doesn't.  Remember, the government can place "reasonable time, place and manner" restrictions on speech.  Many states have passed laws regarding protests at funerals and Congress has placed some restrictions on protests at funerals on federal property.  

In fact, Maryland, where Matthew Snyder's funeral was held, has a restriction on protests at funerals in place.  The Maryland law provides one of the most generous buffer zones in the country, requiring that protesters stay 1000 feet away from the funeral.  Phelps and his followers were complying with local ordinances and state police when they protested at Matthew Snyder's funeral. 

So, as hateful as Mr. Phelps and the members of the Westboro Baptist Church are, they do have the right to peaceably assemble and spread their message of hate.  Like the skinheads and the KKK before them, Phelps is engaging in an activity protected by the First Amendment.

We don't have to like it.  In fact, I must add that I wouldn't be at all disappointed if Mr. Phelps was struck by a meteor falling from the sky.  Or if he encountered 3 huge Marines in a dark alley while holding his "Semper fi fags" sign.  (But then I've never pretended to be a Christian, which is more than Mr. Phelps can say.) But the Bill of Rights that allows me to stand outside my Congressman's office with a sign telling him what I think about health care reform, also applies to people like Fred Phelps at public funerals.

We can only hope Phelps understands the significance of the Constitutional protections he invokes to promote his hateful speech; the Constitution that Lance Corporal Snyder and his comrades in arms have sworn to protect and defend with their lives. 

If there is a God, Mr. Phelps, she is watching you.

And now for the Lawyer Mama Disclaimer: If you think I'm offering you legal advice or that this has established an attorney-client relationship, you're an idiot and you shouldn't be reading my blog. If so, slap yourself in the forehead. Right now! Oh, and I'd like to sell you a bridge in Brooklyn.

Photo courtesy of the Source 4 Politics blog.

This post appeared in somewhat different form on Stephanie's personal blog, Lawyer Mama.

Clear & Simple Answers to "What does health insurance reform actually mean for me?"

Outside of DC, many Americans are trying to cut through the chatter and get to the substance of reform with a simple question: "What does health insurance reform actually mean for me?" To help, we've put together a list of some key benefits every American should know.

Let's start with how health insurance reform will expand and strengthen coverage:

·         This year, children with pre-existing conditions can no longer be denied health insurance coverage. Once the new health insurance exchanges begin in the coming years, pre-existing condition discrimination will become a thing of the past for everyone.

·         This year, health care plans will allow young people to remain on their parents' insurance policy up until their 26th birthday.

·         This year, insurance companies will be banned from dropping people from coverage when they get sick, and they will be banned from implementing lifetime caps on coverage. This year, restrictive annual limits on coverage will be banned for certain plans. Under health insurance reform, Americans will be ensured access to the care they need.

·         This year, adults who are uninsured because of pre-existing conditions will have access to affordable insurance through a temporary subsidized high-risk pool.

·         In the next fiscal year, the bill increases funding for community health centers, so they can treat nearly double the number of patients over the next five years.

·         This year, we'll also establish an independent commission to advise on how best to build the health care workforce and increase the number of nurses, doctors and other professionals to meet our country's needs.  Going forward, we will provide $1.5 billion in funding to support the next generation of doctors, nurses and other primary care practitioners -- on top of a $500 million investment from the American Recovery and Reinvestment Act.

Step into Karoli's HCR Complaint Department

Update: The following complaints actually come from Investors' Business Daily, the same organization that lied to everyone back in July before the disastrous town hall meetings.

While I expect wailing and gnashing of teeth from the right wingers, I do get frustrated with it from the left side of the fence, mostly because that's the side I sit on. I got a list of complaints tonight that reads like a list of right wing talking points, so I decided to open the complaint department for questions, answers and debunks. There were so many in one post it would take a small book to address them all, so I'll start with the ones that seem to be causing migraines in fellow liberals.

The Mandate

You are young and don’t want health insurance? You are starting up a small business and need to minimize expenses, and one way to do that is to forego health insurance? Tough. You have to pay $750 annually for the “privilege.” (Section 1501)

Here is a fact: The only way you have universal coverage is to require everyone to have coverage. The only reason this bill isn't universal? Republicans said undocumented workers did not have the right to purchase insurance with their own money through the exchange, and you get to opt out if you choose to pay a penalty instead.

Sorry, young 'un, but there is no such thing as health insurance, per se. There are "risk pools". Risk pools represent a group of people - healthy and unhealthy - who all throw money in the kitty and then take it out when they need it. Insurance companies turn a healthy profit by cherry-picking individual pools for the healthiest in the bunch and booting the rest out. That's how you end up with stories about people getting sick and being tossed off their policies (like I was) or simply being denied altogether.

This bill, above all else, says people in this country are equal, and deserve to have equal access to affordable health insurance. To that end, the bill has been set up so the guy just setting up his business gets a 50% tax credit in 2014 to offset the cost of buying health insurance. That's not so bad, for a number of reasons, not the least of which is this: It makes that guy's small business competitive with the bigger business down the street that offers health insurance benefits.

What exactly was it you expected from health insurance reform? Single payer? Here's a news flash: Single payer carries a mandate, too, and it would be substantially more than $750 per year to pay for it. For all the positives, a Medicare buy-in for older people was estimated to be around $600/month, as opposed to the $1200 or so a year that a low-income person will likely pay for family insurance.

So you say, the mandate sucks. I say, then don't opt out. Get something for your money. Hell, the government is covering part of the cost, and there are some serious cost controls built in. The opt-out is silly. You're betting against inevitability.

Ok, on to the next.

"Dream Big Dreams" -- President Barack Obama Signs Health Care Legislation Into Law

For a long time, it seemed like it would only stay a dream--a wish. But today, we've broadened the reach of our social safety net, adding health insurance reform to Medicare, Medicaid, SCHIP, and a host of other ways our government helps us help each other. President Obama signed this groundbreaking piece of legislation into law after more than a year of uphill battle to pass versions in the House and Senate. (As of this writing, the Senate has yet to pass its version of the reconciliation bill; it's expected to do so by the end of the week.)

The signature above was scrawled on a school wall back in June of 2009 (photo credit: Pete Souza, Official White House photographer). Our President had just led a town hall on health care in Wisconsin. The rhetoric had yet to turn ugly, the public option was still in play, public opinion was still elastic.

Senator Kirsten Gillibrand: A Step Forward In Food Safety

MOMocrats is happy to host guest writer Senator Kirsten Gillibrand (D-NY), who introduces The Consumer Recall Notification Act. In this post, she shares why she is so invested in this Act and why we should be, too. (In the photo, Senator Gillibrand teams with Chef Rachael Ray to improve childhood nutrition.)

Each year approximately 87 million Americans -- 5 million in New York alone -- are made ill by contaminated food. Of those, 371,000 are hospitalized with foodborne illness, and 5,700 die. In 2010 America, this is simply unacceptable.

The fact is, our food safety laws have not truly been overhauled in more than a century. Back in December, in my post "A New Approach To Food Safety," I wrote about the importance of developing a new comprehensive food safety agenda that brings these laws up to date and focuses on prevention and notification. 

It Passed the House. Now What?

Now that the Patient Protection and Affordable Care Act (H.R. 3590, a/k/a health reform) and the Health Care and Education Affordability Reconciliation Act of 2010 (H.R. 4872, a/k/a reconciliation) have passed the House, what next?

Well, I'd start by reading summaries of the bill. If you're like most (sane) people, the back-and-forth of parliamentary maneuvering got the best of you. You still tuned into the debate but specific provisions? You have some sort of vague impressions.

Let's fix that.  I'd recommend using the Kaiser Family Foundation's Side-by-Side comparison tool for an easy glance at the provisions across several topic areas. Trust for America's Health has a good summary of the Senate bill too.

The Majority Leader's website has a collection of information too, from ten immediate benefits to the Congressional Budget Office report. Likewise, the Democratic Policy Committee has a slew of press releases and video clips, as well as section-by-section bill analysis and all the fact sheets you ever wanted.

Why the prep work? We must be ready to speak truth to power as the Senate readies for debate on the reconciliation act.

Lessons Learned in Healthcare Reform

 On Friday, after I picked my son up from school, we quickly walked home and had a quick snack. The kids knew we were headed to the library so they ate fast and then started collecting the library books that were due. Then I changed my shirt to one with a U.S. Flag on it. The kids asked why I had changed. I told them because we were going somewhere else before the library. We were going to a rally.

I was taking the kids to their first real rally in support of health care reform. Our neighboring Congressman over in Pleasanton, Jerry McNerney, is one of the members of Congress who had yet to decide whether he would be voting for or against the health care bill. Members of both sides of the debate were coming out to let the congressman know how we felt.

My kids are certainly no strangers to politico talk. They hear it a lot around the house and are no strangers to C-span, but taking them to a rally was something I’d never done before. Passing healthcare reform is an important moment in our country’s history and I wanted my kids to be able to say they were part of it.

In the car I gave them the very simplified version of the health care debate and let them draw their own conclusions. My son instantly was confused and wanted to know why people don’t want other people to be able to go to the doctor. I didn’t have to push my own political opinions on him. Because even at 7 he gets the very basic bottom line of the debate. Which is that everyone should be able to go to the doctor when they need to.

When we joined the crowd my son quickly got into it. He held up his sign, chanted and even took a pen from my purse to write “pass the bill” and “helf cer now” on his sign.  

The following night Congressman McNerney announced that he would indeed be voting yes on the bill. My son was over the moon, “See mom,“ he said “Good guys always win.”

Then tonight Congressman McNerney, along with 218 other members of Congress, passed health care reform.

Of all the things that will come from the passing of this bill the one I will always remember most is the lesson my son learned. Because he learned that sometimes when you use your voice to speak out strong and speak out loud, people listen.

And sometimes those people who heard you will go to Washington and vote to give your family their healthcare back.

And he learned that, yea; sometimes the good guys do win.

Meghan Harvey like to talks about herself and her kids, maybe too much, over at Meg's Idle Chatter.

Health Reform: It's the Final Countdown

The greatest show on reality television today is on CPSAN. If you're near a TV today, be sure to tune in. In case you need a quick refresher on what is happening today in the House, here is a summary:

Health care reform legislation that would extend health insurance to millions of Americans who are currently uninsured, offer tax cuts to small businesses to help them insure their employees, and prevent health insurance companies from dropping coverage for patients who become seriously ill has already passed with clear majorities in the U.S. House of Representatives and the Senate. The House passed its health care reform bill in back in November; the Senate passed its own version of reform legislation on Christmas Eve.

For the past few months, the main obstacle in the way of putting a final health care reform bill on the President's desk to be officially signed into law has been the task of reconciling the not insignificant differences between those two bills.The process of combining the two versions of health care reform legislation into one bill that would be supported by majorities in both the Senate and the House has been hampered by the Democrats' loss of a seat in the Senate after the death of Massachusetts Senator Ted Kennedy, long a champion in the fight for a more affordable, more equitable health care system.

Left with 59 votes out of 100 in the Senate, Democrats have been stymied in their original plans to pass a combined bill quickly by the threat of a Republican filibuster, which would force the Democrats to garner 60 votes (a supermajority) to pass any new bill. After several failed attempts to negotiate with Senate Republicans to try to create a bipartisan version of the bill that would garner a few Republican votes, Democrats have devised a solution that gets around the filibuster problem: The House will pass the Senate version of the bill as-is, which will make the Senate bill eligible to be signed into law. But the Senate has agreed that they will immediately thereafter pass a new piece of legislation that amends their original bill in accordance with compromise proposals outlined by members of the House and the President.

The Senate will use budget reconciliation procedures to pass amendments to their bill, a process which limits what kind of legislative changes the Senate can make, but eliminates the need for 60 votes to overcome a filibuster — instead, the Senate Dems will only need a simple majority of 51.

Today, the House of Representatives will vote on whether to pass the Senate version of the health care reform bill. Speaker of the House Nancy Pelosi has indicated she believes Democrats have enough votes in support of the bill to pass it. Once it passes, the Democrats' new plan to pass health care will be set in motion and is almost certain to succeed.

So if health care reform passage is now almost guaranteed, what about today's vote could possibly be so interesting?