The Laws Of Unintended Consequences

TPM's Brian Beutler explores the Republican argument against health care reforms Medicaid expansion provision.  Conservatives argue that by declaring that states expand the coverage of Medicaid to 133% of the poverty line, adding millions of people to the program, the federal government is using its financial power to coerce the states to do what Congress wants.

The problem with that argument as Beutler points out is that basically that's what the Hyde Amendment does: a favorite federal provision of conservatives that they want to strengthen to prevent any state from using federal money, such as health care reform funding, to subsidize any insurance plan that would cover abortion or to include those plans in state insurance exchanges.

“When it has suited social conservatives, they’re all for coercion,” says Sara Rosenbaum, a law professor at George Washington University, where she’s also the chair of the Department of Health Policy.

The plaintiffs will ask the Supreme Court to rule narrowly that the Medicaid expansion is an unconstitutional use of Congress powers to tax and spend. If the court follows suit, though, it will invite a flood of challenges to other statutes, many of which conservatives adore, but all of which rely on Congress’ power to impose conditions on money they provide to states.

“It opens a tremendous Pandora’s box of other spending clause statutes that might be considered coercive with no clear limiting principles,” Rosenbaum said. “At what point does something become a coercion.”

Timothy Jost, a law professor at Washington and Lee University who has been monitoring the health care lawsuits very closely runs through some of these: “Title IX of the Civil Rights Act and national security programs and No Child Left Behind and all kinds of other programs.”

The list is long. It includes requirements that universities receiving federal funds allow the military to recruit on their campuses. And, both Jost and Rosenbaum note, if conservatives get their way, it will also include a stronger version of the so-called Hyde Amendment, which severely restricts the use of federal funds to provide abortions.

“The House of Representatives has been fashioning a very different kind of Hyde amendment … restrictions say that no federal funds go to the insurance program if that coverage offers more than the [federal] minimum for abortions,” Rosenbaum said.

What are the implications here? Several states that help provide abortion coverage with their own funds would have to pare back that funding or drop out of Medicaid. That’s a federal power conservatives are happy to exercise — but one they’d stand to lose if they get their way in the Supreme Court next year.

“If the states were to prevail on the issue of expansion, then the [abortion] mandate would presumably fall,” Rosenbaum said.

On the other hand, if winning the coercion battle meant losing on the Hyde Amendment but also the end of Title IX and the Civil Rights Act, I'm betting Republicans would be more than happy to take that outcome.  I'd have to say they're well aware of the potential tradeoff here.