O’Care: Teddy, Scott and the Blue Dog Democrats

This past Friday, true to his campaign promise, President Trump’s administration removed a key Obamacare birth control requirement. 

The Trump administration on Friday rolled back an ObamaCare requirement that employers include birth control coverage in their health insurance plans. Under highly anticipated rules published Friday, any for-profit or non-profit employer or insurer can stop following the birth control mandate on moral and religious grounds. The changes also let publicly traded companies obtain a religious exemption but not a moral one. The rules take effect immediately. The changes follow an executive order President Trump signed in April that instructed the Department of Health and Human Services to address “conscience-based objections” to the mandate, which has faced strong opposition from religious schools, charitable organizations and priests and nuns. The decision is a big win for social conservatives, a voting bloc that strongly supported Trump in the presidential election.

Within hours, liberal organizations were announcing plans to file lawsuits with the intent of obtaining an injunction barring the government from removing the birth control mandate.

The action has already drawn lawsuits. Both the American Civil Liberties Union and the National Women’s Law Center said Friday  they would challenge Trump administration’s changes in court. “Today’s outrageous rules by the Trump Administration show callous disregard for women’s rights, health, and autonomy. By taking away women’s access to no-cost birth control coverage, the rules give employers a license to discriminate against women,” said Fatima Goss Graves, president and CEO of the NWLC. “This will leave countless women without the critical birth control coverage they need to protect their health and economic security. We will take immediate legal steps to block these unfair and discriminatory rules.”

The game plan for challenging the administration’s removal of the birth control mandate is highly flawed and specious. This leaves liberals and the MSM with little choice but to attempt to control the narrative through deception and historic revisionism. This is the backstory they don’t want you know, and hope the courts won’t consider.

Along with President Obama being elected in 2008, the country also chose to give the Democrats a majority in the House of Representatives, and a 60 seat super-majority in the Senate.  The super-majority in the Senate meant the president could virtually get any legislation he wanted passed. He wanted healthcare legislation, and in the spring of 2009, both the House and Senate began work in various committees with the goal of producing a comprehensive healthcare bill.

But, along the way they hit a major roadblock. On August 25, 2009, Sen. Ted Kennedy D-MA died of brain cancer. By that time the Tea Party movement had gathered steam and had become a major voice opposing any national healthcare legislation. In January 2010, a Republican, Scott Brown won the Massachusetts special election to replace the late Sen. Kennedy.

The Senate no longer had a Democratic super-majority, putting healthcare legislation at very real risk of failure. Senate Republicans were in lockstep vowing to filibuster any healthcare legislation, and this forced the Democrats to find another avenue for passage of one of President Obama’s major campaign promises.

Enter Budget Reconciliation. This seemed to be an ideal path for Democrat success because any bill coming from the House of Representatives to the Senate through this method required only a simple majority for passage. But this path also had potholes, and those were very real threats to the party leadership.

While the Democratic Senate leadership was working to solve several objections from various Democrat senators, Rep. Bart Stupak D-MI was leading a small pro-life Democratic caucus, and their demands were centered around eliminating all federal funding for abortion, abortion counseling, and any birth control mandate. Coupled with the Republican members of the House, this small group had the leverage to kill the bill.

In order to bring these Blue Dog Democrats back into the fold, the President and Nancy Pelosi agreed to their stipulations. It was only after the bill passed, that these pro-life Democrats realized party leadership had lied to them, and had crafted a bill which  allowed the Secretary of Health and Human Services the latitude to implement a birth control mandate within Obamacare.

Back to the present. An Executive Branch mandate isn’t law, rather it’s part of the Executive Order category. Rolling it back requires nothing more than another Executive Order, which happens routinely when the next president takes office.

The MSM, liberals and the Democratic Party Leadership will begin their campaign of deceit making various claims, none of which are actually based on legal grounds. They are following a staged script, one which no doubt will end up at the Supreme Court.

First, some liberal organization will find a liberal federal judge sympathetic to their cause, and will file suit for an injunction seeking to preserve this mandate. The Executive Branch will appeal, and one way or another this will end up in the Supreme Court.

It is highly doubtful this will end up in success for Democrats. The Supreme Court gives far too much weight to the Chevron Doctrine.

In its 1984 decision, the Supreme Court said that when Congress passed a law that did not have a clear meaning, courts should defer to the federal agency applying the law unless its interpretation was unreasonable. The court reasoned that experts at agencies had been trusted by Congress to make informed decisions. This has become the doctrine. In the decades since, courts have commonly deferred to agencies not just on the environment but in areas touched by laws such as the Federal Communications Act and the Occupational Safety and Health Act.

While this will be red meat for the far left, this is just another issue which will push mainstream Americans away from their party.  Once again, the fringe is controlling the party, giving Republicans a very real Nancy Pelosi issue to run against.

The bottom line is they mishandled the entire legislative process in passing Obamacare, and now that incompetence is coming back at them with a vengeance.

About the author

Wm. P. Fitzhenry

5th generation Texan, 2nd generation reformed Presbyterian, a twin and a serial entrepreneur.

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