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Put Yourself in the Jury Box: Did These 8 Men Deserve to Die?

by WmTullydlamzr Posted on May 4, 2015

Mother Jones

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In the sentencing phase of a death penalty trial, a good defense lawyer presents mitigating evidence. That’s information that may show that the defendant lacks the “extreme culpability” the courts require for execution—in theory, at least. He may be intellectually disabled (a.k.a. mentally retarded), a circumstance for which the Supreme Court has issued a blanket exception (although it is not always heeded). He may be insane, a harder-to-prove designation that applies only to certain defendants with severe mental illness. He may (and many do) have a history of severe trauma. Or he may simply be young. The Supreme Court has banned the execution of anyone under 18 at the time of his crime, although that, of course, is arbitrary. Lawyers for Dzhokhar Tsarnaev, who was 19 when he helped his older brother carry out the Boston Marathon bombings, have spent the past couple of weeks arguing that he should be spared, essentially because he was a kid in the thrall of his brother, the alleged ringleader.

After scrutinizing all of the mitigating factors in 100 recent execution cases, legal researchers Robert Smith, Sophie Cull, and Zoë Robinson published their results in Hastings Law Journal last year. They concluded that only 13 of the 100 prisoners executed had actually met the legal criteria for extreme culpability. (To see why that didn’t save them, read my accompanying story: “87 Reasons to Rethink the Death Penalty.“) Below you’ll find brief summaries from eight of the cases they examined. Let’s assume that you believe the death penalty is warranted in some circumstances. Put yourself in the jury box, read these case details and ask: How would I have voted?

Name: Roy Willard Blankenship
Executed: Georgia, 2011
Mitigating factors: Trauma

Blankenship’s family had a history of mental illness. His uncle spent most of his life in an institution and his twin sisters had paranoid schizophrenia. Blankenship was raised by an abusive alcoholic father who regularly beat his mother, including when she was pregnant. The family was so poor they couldn’t afford a crib, so he slept in a dresser drawer. Days after his birth, Blankenship’s father came home drunk and slammed the drawer closed; the dresser fell over, nearly killing the infant.

In the years after his father and aunt died of carbon monoxide poisoning in a hotel room, Blankenship’s mother remarried three times. One of the stepfathers beat Blankenship frequently and tortured and killed his pets in front of him. A neighbor sodomized Blankenship when he was eight or nine, and when a witness reported these assaults to his mother, she beat her son. She later abandoned her children entirely. Blankenship was convicted and sentenced to death in 1978 for the murder of an elderly woman, whom he also raped.

Name: Elmer Carroll
Executed: Florida, 2013
Mitigating factors: Intellectual disability, trauma

Carroll started out at a disadvantage thanks to fetal alcohol syndrome. His parents were abusive alcoholics who found it amusing to feed their toddler booze until he got sick or fell down. His father once chopped up a live puppy in front of his kids. His mother was mentally ill and would beat her head against walls. According to court documents, she at one point threw Carroll’s brother, six at the time, “into” a woodstove, leaving him permanently scarred. She also would beat Carroll with a hickory stick until she passed out or grew too exhausted. She would also claim he was possessed by demons, and perform exorcisms on him.

By age six, Carroll himself was an alcoholic. When he was 12, a neighbor began forcing him to perform oral sex, and occasionally urinated on the boy’s face—the abuse lasted a year before the man was arrested. Carroll dropped out of middle school. As a teen, he was a serious drunk who experienced blackouts and hallucinations from binge drinking. He was later tested and determined to have brain damage as the result of the fetal alcohol syndrome, the beatings, and trauma from barroom fights—one of which caused a “significant head injury.” He also was diagnosed with borderline mental retardation that left him the intellectual equivalent of an 11-year-old.

Name: Elroy Chester
Execution place and year: Texas, 2013
Mitigating factors: Intellectual disability

From the age of seven up through his stint on death row for rape and murder, Chester was given five IQ tests. On four of them, he tested below 70, a score the Supreme Court has identified as strong evidence of intellectual disability. Chester spent most of his school years in special education, and never advanced beyond a third-grade level. When he was in prison, Texas enrolled him in its Mentally Retarded Offenders Program. Far from disputing his intellectual disability, the state argued that it was a compelling reason the jury should vote for death.

Name: Richard Cobb
Executed: Texas, 2013
Mitigating factors: Youth, trauma

Had Richard Cobb been born five months earlier, it would have been illegal to execute him. As is, he was born with brain damage due to alcohol exposure in the womb, which his lawyers argued made him effectively intellectually disabled. His mother would pick him up from daycare drunk—when she bothered to pick him up at all. It was mandatory daycare, ordered by child welfare authorities, and Richard and his brothers arrived there bruised, hungry, and underweight, according to the staff. One day after his mother left him there, a worker took Cobb home to find his baby brother home alone in a crib, covered in roaches.

Mental illness ran in the family; one brother was diagnosed with bipolar disorder, another with paranoid schizophrenia. Richard and his younger brother were taken from their mother when he was three and adopted to another family. When he was 16, his mother informed him that the man he knew as his father was not. Five months past his 18th birthday, Cobb was arrested with an accomplice for killing a man and shooting two others they’d taken as hostages in a convenience store robbery. He was executed at 29. After the drugs were administered, his final words were: “Wow! That is great. That is awesome! Thank you, warden! Thank you fucking warden!”

Name: Daniel Cook
Executed: Arizona, 2012
Mitigating factors: Trauma

The abuse Daniel Cook experienced was almost beyond comprehension. He started out with brain damage thanks in part to his manic-depressive mother’s substance abuse during pregnancy. He was sexually abused by his mother, father, and grandparents. His grandmother’s husband forced him to have sex with his sister, according to court documents, and his biological father burned his son’s penis with a lit cigarette—a crime Cook would eventually replicate in the rape and murder of a roommate that led to his death sentence.

Placed in foster care and group homes, he continued to endure horrific abuse: In one home, the adults would handcuff him to a bed in a “peek-a-boo room” with a one-way mirror, allowing others to watch while a foster parent raped him. The same foster parent forcibly circumcised him at age 15 and coerced other boys in the home to gang-rape him. Cook, not surprisingly, developed drug and alcohol problems and was hospitalized several times for trying to kill himself. His case was so extreme that the prosecutor who’d put him on death row tried to save him once his past came to light—which it never did at trial, since Cook had initially represented himself and asked for the death penalty. Arizona obliged.

Name: Cleve Foster
Executed: Texas, 2012
Mitigating factors: Trauma

Foster, who said he was routinely beaten with belts and tree branches as a child, saw his alcoholic father sexually abuse his brother repeatedly and later learned that his father had molested his sisters as well. He joined the Army and served in Operation Desert Storm. He was later diagnosed with PTSD and became a meth addict. When Foster was around 30, his brother was murdered. When he visited the crime scene with his mother after the burial, he discovered decomposing body parts missed by the people who had removed the rest of his brother’s corpse. He and another man were tried and convicted for the 2002 rape and murder of a woman they’d met in a Fort Worth bar.

Name: George Ochoa
Executed: Oklahoma, 2012
Mitigating factors: Mental illness, mental disability, youth

Ochoa was 18 when he was accused of murdering two people during a home invasion. After his arrest, he was sent to a mental hospital for evaluation for psychosis, and his competency for trial was questioned. His lawyers argued that he was borderline mentally retarded. He also suffered from a neurological disorder, had abused inhalants and booze from an early age—which interfered with his mental development, his lawyers argued—and had brain trauma from a fall.

Before he was executed, his lawyers appealed to the federal courts for a stay because his mental state had deteriorated further in prison. They reported being unable to communicate with Ochoa because he’d become delusional and fixated on the voices he was hearing and his belief that he was being shocked all over his body all day long. Death row staff reported that Ochoa repeatedly kicked the toilet in his cell because he thought it was electrocuting him and that voices were coming out of it. He was so delusional that a defense psychiatrist couldn’t even evaluate him. The courts still deemed him sane enough to execute.

Name: Edwin Hart Turner
Executed: Mississippi, 2012
Mitigating factors: Mental illness, trauma, youth

Turner spent most of his life wearing a towel around his face to hide his disfigurement after he tried to kill himself with a rifle at age 18. His parents were abusive drunks, and his mother twice attempted suicide. His father died when Turner was 12 after shooting at a shed full of dynamite in what family members assumed was a suicide. (A friend from school called to say he’d seen police on TV putting pieces of Turner’s dad into garbage bags.) His mother hit the skids after that, drinking even more heavily. She married another abusive drunk, who beat her kids black and blue.

Turner’s grandmother and great-grandmother were both committed to mental institutions due to schizophrenia. By 15, Turner was showing symptoms of mental illness, too, and his mother twice took him to mental hospital for treatment. Two weeks after the second hospital visit he shot himself in the face. His parents eventually threw him out of the house, so he began living in a tent in the woods. He was repeatedly hospitalized for his mental illness in the four years after the first suicide attempt. Then, in 1995, he slit his wrists and was hospitalized for several weeks. He was released and then promptly sent back to the hospital for an involuntary commitment. After his subsequent release, with a prescription for Prozac, his behavior grew even more manic and bizarre. Doctors later confirmed he had bipolar disorder, a disease whose manic symptoms are exacerbated by Prozac. Six weeks later, at the age of 22, he murdered two people in a string of random convenience store robberies.

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Put Yourself in the Jury Box: Did These 8 Men Deserve to Die?

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87 Reasons To Rethink the Death Penalty

by CaseyYZQswynlze Posted on May 4, 2015

Mother Jones

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Stanley Griffin was deemed intellectually disabled when he was 16. He scored an abysmal 65 on an IQ test, which put him among the lowest 1 percent of Americans in terms of his intellectual capacity. (An average score is 100.) He was spelling and doing math on a third-grade level. His school designated him mentally retarded and put him in special ed. He even competed in the Special Olympics.

As Griffin grew older, he had trouble finding and holding any job. It took him seven tries to finally pass the test required to drive a semi truck, and when no one would hire him even then, he resorted to manual labor. But his contractor brother wouldn’t let Griffin use power tools because he couldn’t manage them properly; Griffin was oblivious to danger, too, and would walk dangerously close to the backhoe. He tried, and failed, to master simple plumbing—even a Denny’s application proved overwhelming. His mental deficiencies left him unable to live alone, pay bills, or even purchase his own clothing because he would get so flummoxed by the math.

Somewhere along the way, Griffin began getting into trouble and having run-ins with the law. In 1990, at age 25, he was tried and convicted for burglary and aggravated assault with a deadly weapon, and sentenced to 20 years in prison. He served 12, but things only went downhill after his release. He ended up homeless, and finally, in 2012, Griffin was convicted of strangling to death 29-year-old Jennifer Hailey in College Station, Texas, and violently assaulting her 9-year-old son, who had witnessed her murder. He was tried and found guilty. The prosecutor asked for the death penalty and the jury obliged.

There is little question Griffin should have been locked away. At the same time, he should never have been a candidate for the death penalty. The Supreme Court has twice ruled that it is unconstitutional to execute people who are intellectually disabled—a polite alternative to “mentally retarded”—regardless of the nature of their crimes. Their “diminished capacities,” the court further noted, made such defendants far less likely to be deterred by the threat of death, which is one of the few remaining justifications for capital punishment.

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87 Reasons To Rethink the Death Penalty

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Supreme Court Rules That Judges Can’t Hit You Up For Donations

by NorbertoXPF Posted on April 29, 2015

Mother Jones

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In a ruling that might surprise those who’ve watched recent Supreme Court’s rulings on campaign finance issues, the high court ruled today that states can ban judges from directly soliciting campaign donations.

The case, Williams-Yulee v. The Florida Bar, was a First Amendment challenge to a Florida rule that barred judicial candidates from personally asking donors for money. Lanelle Williams-Yulee unsuccessfully ran to become a county judge in 2009. During her campaign, she signed a letter asking for campaign contributions. The Florida Supreme Court later found that she had violated state rules on judicial campaigns. Williams-Yulee challenged that decision but lost.

Among the 39 states hold judicial elections, 30 have bans on judges personally asking for campaign money. As Mother Jones reported last year, judicial elections have quietly become a major battleground in American politics over the last decade. State judicial candidates raised a combined $83 million in the 1990s, a total that was surpassed by roughly $30 million in the 2011-12 election cycle. More than $200 million has been donated to state supreme court candidates since 2000, and independent (and often unaccountable) spending on state judicial races has increased nearly sevenfold in that same time. Sue Bell Cobb, the retired chief justice of the Alabama Supreme Court, recently likened judicial elections to “legalized extortion.”

Justice At Stake, a nonpartisan watchdog group that often speaks out against big money in judicial elections, applauded the Supreme Court’s decision. “Today’s decision helps judges, by saving them from the compromising job of raising cash from people whose cases they will decide,” the group’s executive director, Bert Brandenberg said in a statement. ” It helps our court system, by shoring up its ability to be fair and impartial. And it helps the public, by reassuring them that they will not find themselves in court before a judge who has received a check directly from the opposing party in their case.”

Chief Justice John Roberts joined the court’s four liberal justices in the 5-4 decision. “Judges are not politicians, even when they come to the bench by way of the ballot,” he wrote. “And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.”

Justice Antonin Scalia, writing for the minority, called the court’s decision a “wildly disproportionate restriction upon speech.”

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Supreme Court Rules That Judges Can’t Hit You Up For Donations

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In Anti-Obamacare Case, Ruth Bader Ginsburg Questions the Foundation of the Lawsuit

by ImogeneEnright Posted on March 4, 2015

Mother Jones

During the Supreme Court oral arguments Wednesday morning in King v. Burwell, the case that threatens to destroy Obamacare, Justice Ruth Bader Ginsberg wasted no time in grilling the attorney seeking to eviscerate the Affordable Care Act about a significant technical matter that could blow up his case. As soon as Michael Carvin, the Jones Day partner representing the four plaintiffs named in the anti-Obamacare suit, started his opening statement, Ginsburg interrupted him with a slew of questions about whether his plaintiffs had a recognizable injury that would allow the case to proceed. A plaintiff, she declared, “has to have a concrete stake in the question…you would have to prove the standing if this gets beyond the opening door.”

With these queries, Ginsburg was picking up on a critical issue highlighted last month when Mother Jones broke the news that the four plaintiffs may have dubious claims of standing in this case. According to legal filings in the case, two of the plaintiffs were likely not adversely affected by Obamacare because they could claim an exemption from the law’s requirement to purchase health insurance due to their low income levels and high health care costs. The other two plaintiffs, Doug Hurst and Brenda Levy, would have benefited substantially from the Affordable Care Act had they obtained insurance through an Obamacare health exchange. (Levy said she was paying $1,500 a month for non-Obamacare insurance, which she could have bought on the federal health care exchange for $148 a month. Hurst, according to bankruptcy filings, had been paying more than $600 a month for his insurance in 2010. The ACA would have provided him insurance for $62 a month.)

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In Anti-Obamacare Case, Ruth Bader Ginsburg Questions the Foundation of the Lawsuit

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Tea Party Darling Ben Carson Says Prisoners Prove That Homosexuality Is A Choice

by AnjaBnrzjdb Posted on March 4, 2015

Mother Jones

Ben Carson, the prospective 2016 presidential hopeful beloved by Tea Partiers, told CNN host Chris Cuomo on Wednesday that he believes homosexuality is “absolutely” a choice—because “a lot of people who go into prison, go into prison straight, and when they come out, they’re gay.”

The former neurosurgeon went on, “So did something happen while they were in there? Ask yourself that question.”

Carson, who has previously compared homosexuality to murder and bestiality, also said that states should decide the legality of gay marriage, not the Supreme Court. Watch below:

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Tea Party Darling Ben Carson Says Prisoners Prove That Homosexuality Is A Choice

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Ruth Bader Ginsburg: "I Wasn’t 100 Percent Sober" During SOTU Address

by ArnetteSoderste Posted on February 13, 2015

Mother Jones

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Contrary to earlier speculation that she had power-napped through last month’s State of the Union Address because it was just so damn dull, Supreme Court Justice Ruth Bader Ginsburg revealed on Thursday it was actually due to the fact she wasn’t exactly “100 percent sober.”

The 81-year-old justice told a crowd of George Washington University students:

The audience for the most part is awake, because they’re bobbing up and down, and we sit there, stone-faced, sober judges. But we’re not, at least I wasn’t, 100 percent sober. Because before we went to the State of the Union, we had dinner together… Justice Kennedy brought in… it was an Opus something or other, very fine California wine, and I vowed this year, just sparkling water, stay away from the wine, but in the end, the dinner was so delicious, it needed wine.

According to Ginsburg, she was thankfully flanked by colleagues, who, like any good friends, casually nudged her awake when they noticed her dozing off. Watch below:

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Ruth Bader Ginsburg: "I Wasn’t 100 Percent Sober" During SOTU Address

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Ruth Bader Ginsburg: America Is Ready to Accept a Pro-Gay-Marriage SCOTUS Ruling

by ManuelMaurer Posted on February 12, 2015

Mother Jones

In a new interview with Bloomberg on Wednesday, Supreme Court Justice Ruth Bader Ginsburg said she believes Americans are set to accept a constitutional decision legalizing gay marriage in the country, saying it would “not take a large adjustment” for people to eventually come around on the issue.

“I think it’s doubtful that it wouldn’t be accepted,” Ginsburg said. “The change in people’s attitudes on that issue has been enormous.”

The justice’s comments are yet another indication the Supreme Court will rule in favor of gay marriage this June, when justices will hear a monumental case deciding if the Constitution provides the right for same-sex marriages.

“In recent years, people have said, ‘This is the way I am,'” Ginsburg added. “And others looked around, and we discovered it’s our next-door neighbor–we’re very fond of them or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”

Earlier this week, President Obama said he thinks the court will make a historic “shift” in this summer’s ruling and that it’s time to recognize “same-sex couples should have the same rights as anybody else.”

In the court’s decision not to block gay marriage in Alabama on Monday, Justice Clarence Thomas wrote in his dissent that the ruling offered another “signal” that gay rights advocates will be similarly successful this summer. Despite the decision, however, several Alabama counties still refused to issue marriage licenses to same-sex couples. Even with such defiant opposition, Ginsburg maintained a positive outlook.

“One way or another it will be decided before we leave town in June.”

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Ruth Bader Ginsburg: America Is Ready to Accept a Pro-Gay-Marriage SCOTUS Ruling

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America’s Largest Health Care Company Tells Supreme Court That Anti-Obamacare Argument Is "Absurd"

by KatheriPohlman Posted on February 10, 2015

Mother Jones

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If getting rid of Obamacare is such a good idea, why isn’t corporate America getting behind King v. Burwell, the Supreme Court case designed to demolish the Affordable Care Act? More than 52 different parties have weighed in with briefs in advance of oral arguments on March 4. Of those, 21 have been filed on behalf of the plaintiffs, who claim millions of Obamacare consumers are receiving illegal health insurance subsidies. The groups filing these briefs include libertarian think tanks, pro-life organizations, Christian legal shops, and some conservative Republican legislators. But not a single business group—not the US Chamber of Commerce, not any of the health industry companies and trade groups that opposed the law when it was being drafted—has presented a brief endorsing this lawsuit.

Meet the Unusual Plaintiffs Behind the Supreme Court Case That Could Destroy Obamacare

These outfits are either backing the Obama administration’s attempt to defeat the suit or sitting out this case. Briefs in the case help explain why: Obamacare is working. There’s no better evidence of this than a brief filed on behalf of the government in King by the Hospital Corporation of America, better known as HCA, the largest health care provider in the country (once run by Obamacare foe Florida Gov. Rick Scott). HCA argues that the legal theory advanced by the plaintiffs is “absurd,” but, more importantly, it presents detailed data drawn from its own operations that demonstrate that the health care law is helping patients and the company itself.

One of Congress’ goals in passing the Affordable Care Act (ACA) was to cut down on the number of uninsured people using expensive emergency rooms for medical care that would be better delivered in an ordinary doctor’s office. HCA notes in its brief that its data from 15 states that use the federal Obamacare exchange show this is exactly what’s happening. The company says that in 2014, uninsured patients visited the ER in its facilities 10 times for every one admission to the hospital—a sign that most of those ER visits weren’t emergencies. People insured through the exchange are visiting the ER three times for every one admission. HCA estimates that “uninsured patients are 300% more likely than Exchange patients to rely on ER care.”

Moreover, the data shows that a person who has obtained insurance through the federal Obamacare exchange is nearly twice as likely to use outpatient care—an indication that they are taking better care of themselves and obtaining care in a much less expensive fashion than those without insurance. “Thus, at the same time that Exchange patients are relying less on the ER, they are receiving more outpatient care than the uninsured, including care (such as chemotherapy) that is typically unavailable in the ER,” HCA says in its brief. “That care is being provided in more appropriate and cost-effective settings.”

DV.load(“//www.documentcloud.org/documents/1658126-hca-amicus-aca.js”, width: 630, height: 500, sidebar: false, container: “#DV-viewer-1658126-hca-amicus-aca” ); HCA Amicus Brief Filed in Supreme Court (PDF)
HCA Amicus Brief Filed in Supreme Court (Text)

HCA’s data also note that women are benefiting immensely from the Obamacare exchanges. The company reports that 53 percent of its uninsured patients are female. But 65 percent of its patients receiving exchange insurance are women. And many of them are using this insurance coverage to obtain cancer treatment.

Seventy-seven percent of the oncology treatments HCA provided to its exchange-based patients went to women. The ACA has, according to HCA, made breast cancer treatment vastly more available to women. Its federal exchange patients are more than three times more likely than uninsured women to get an ultrasound for a breast lump or abnormal mammogram.

HCA has an obvious interest in this case, for the plaintiffs in King are threatening the company’s sizable bottom line, as well as the grand bargain promised by the Obama administration and the law’s drafters in the effort to get it passed. In its brief, HCA says that Obamacare has already cost it more than $600 million in revenues between 2010 and 2014—and that’s just in the 15 states that haven’t created their own exchanges and where HCA has at least one facility. The decreases were part of the deal forged by the drafters of the ACA. The plan was for hospitals to agree to cuts in federal reimbursement for treating the uninsured, but in exchange they would benefit from an influx of newly insured patients.

HCA says that it has only recently begun to see new revenue come in. (Of the roughly 134,000 patients with federal exchange-based insurance who visited an HCA facility last year, 62 percent had never been there before. This suggests that the new insurance program was definitely driving business to HCA’s hospitals and clinics.) If the Supreme Court kills off the Obamacare subsidies, HCA says it will have to absorb about $350 million in initial losses and far more in the future.

In effect, HCA is telling the court that Obamacare is good for both corporate America and individual Americans getting insured through it.

An HCA lawyer didn’t return a call for comment, but that argument—emphasized by HCA in its brief, which mentions the lack of business community support for the King plaintiffs—may be aimed squarely at Chief Justice John Roberts Jr. Lawyers for the King plaintiffs have publicly opined that the conservative justices on the court will relish this opportunity to kill the ACA. But these attorneys may be miscalculating when it comes to Roberts, who provided the fifth critical vote to save Obamacare the last time the ACA faced a major challenge in the Supreme Court.

Roberts is a conservative, but he’s also a former corporate lawyer. During his tenure, he has consistently sided with corporate America and the Chamber of Commerce in all sorts of cases. An ideologically driven case like King might provide good fare for the court’s conservatives—but Roberts may draw the line at ruling in these plaintiffs’ favor when they are threatening the profits of big business. At least, that’s what one of the nation’s biggest health care companies is now hoping for.

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America’s Largest Health Care Company Tells Supreme Court That Anti-Obamacare Argument Is "Absurd"

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No, Congress Never Intended to Limit Obamacare Subsidies to State Exchanges

by BennyBoyes Posted on January 16, 2015

Mother Jones

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The Supreme Court will soon hear oral arguments in King v. Burwell, in which conservatives will argue that the text of Obamacare limits federal subsidies only to people who buy insurance from state-run exchanges, not from the federal exchange. Roughly speaking, there are two prongs of the conservative argument:

  1. The law contains text that explicitly limits subsidies to state-run exchanges. Democrats may not have intended this, but they screwed up in the rush to get the bill passed. That’s too bad for them, but the law is the law.
  2. Democrats actually did intend to limit subsidies to state-run exchanges. This was meant as an incentive for states to run their own exchanges rather than punting the job to the feds.

The argument over #1 revolves around textual interpretation of the statute as a whole, as well as previous Supreme Court precedent that provides federal agencies with broad latitude in how they implement regulations. The argument over #2 relies on trying to find evidence that limiting subsidies really was a topic of discussion at some point during the debate over the bill. That’s been tough: virtually no one who covered the debate (including me) remembers so much as a hint of anything like this popping up. The subsidies were always meant to be universal.

But the recollections of journalists aren’t really very germane to a Supreme Court case. The real-time analyses of the Congressional Budget Office, however, might be. This is an agency of Congress, after all, that responds to questions and requests from all members, both Democrats and Republicans. So did CBO ever model any of its cost or budget projections based on the idea that subsidies might not be available in certain states? Today Sarah Kliff points us to Theda Skocpol, who took a look at every single CBO analysis of Obamacare done in 2009 and early 2010. Here’s what she found:

CBO mostly dealt with overall budgetary issues of spending, costs, and deficits — or looked at the specific impact of health reform proposals on Medicare beneficiaries, health care providers, and citizens at various income levels. The record shows that no one from either party asked CBO to analyze or project subsidies available to people in some states but not others. In a June 2009 analysis of a draft proposal from Democrats in the Senate Health, Education, and Labor Committee, CBO treated subsidies as phased in. But even that proposal, which did not survive in further deliberations, stipulated that subsidies would be available in all states from 2014 — and CBO calculated costs accordingly.

After the Affordable Care Act became law in March 2010, members of Congress, especially Republican critics, continued to raise issues. In its responses, CBO continued to model exchange subsidies as available nationwide. No one in either party objected or asked for alternative estimations assuming partial subsidies at any point in the 111th Congress.

It’s unclear whether this is something the Supreme Court will find germane, but it’s certainly closer to being germane than the recollections of a bunch of reporters.

It’s also possible, of course, that the court will focus solely on argument #1 and never even get to questions about the intent of Congress. Nonetheless, this is an interesting review of the CBO record. The conservative case that Democrats actively intended subsidies to be limited to state exchanges has always been remarkably flimsy. Skocpol’s review exposes it as all but nonexistent.

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No, Congress Never Intended to Limit Obamacare Subsidies to State Exchanges

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The Group Behind America’s Biggest Anti-Abortion March Now Says Birth Control Causes Abortions

by CarmineGraebner Posted on January 13, 2015

Mother Jones

Each year on January 22—the anniversary of the Supreme Court’s ruling in Roe v. Wade—the March for Life draws thousands of protesters to Washington, DC, for what organizers bill as “world’s largest anti-abortion event.” But this year, there’s an added wrinkle: Organizers of the march have spent the past six months arguing that birth control pills are a form of abortion.

March for Life Education and Defense Fund, the nonprofit that organizes the annual protest, identified oral birth control as a form of abortion in a lawsuit filed in July. With the suit, which is ongoing, March for Life is fighting for an exemption from the Affordable Care Act mandate that all private employers provide contraception coverage.

March for Life argues that covering drugs or medical devices that cause abortions would violate its founding principles. And it places hormonal birth control, which includes things like oral contraception and vaginal rings, squarely within that category. In its lawsuit, the group refers to these as “abortifacients,” a characterization with which most physicians strongly disagree.

Polls consistently find that a majority of Americans who oppose abortion have no moral objections to birth control. Most of those planning to attend the march probably have no idea that March for Life views birth control as immoral: March for Life doesn’t advertise its opinions on birth control in its promotional material for the protest, and the group’s website simply bills the march as a mass demonstration against “legalized abortion on demand.”

The group’s lawsuit seems to have been inspired by the Supreme Court’s June 2014 decision in Burwell v. Hobby Lobby. In that case, Hobby Lobby’s owners sued to avoid covering intrauterine devices and emergency contraception pills. A 5-4 conservative majority on the high court ruled in favor of the craft chain’s owners, saying that certain privately owned businesses don’t have to cover emergency contraceptives if the owners object on religious grounds.

The next month, the Supreme Court went even further: It allowed organizations with objections to paying for any kind of contraception—not just the types of emergency contraception that the court dealt with in Hobby Lobby—to bring lawsuits against the contraception mandate. March for Life Education and Defense Fund filed its lawsuit five days after that expanded ruling.

Writing for the majority in Hobby Lobby, Justice Samuel Alito agreed with the argument, made by Hobby Lobby’s owners, that some types of emergency contraception may cause abortions. March for Life makes a similar contention about hormonal birth control. Doctors and medical researchers, however, almost uniformly disagree with these assertions.

Birth control primarily works by preventing ovulation, making it impossible for a woman to conceive. But the pill also causes thinning of the uterine lining. This makes it more difficult for a fertilized egg to implant in the womb. Mainstream medical organizations argue that pregnancy begins when a fertilized egg is implanted in the womb. But in the view of some abortion foes, including March for Life, preventing implantation is tantamount to an abortion. March for Life’s attorneys go so far as to call the lawsuit a legal challenge to the “abortion-pill mandate.” (In fact, the abortion pill, a drug that can be used to terminate a pregnancy in its early stages, is not included under Obamacare’s contraception mandate.)

Jeanne Monahan-Mancini, the president of March for Life Education and Defense Fund, declined to comment on the ongoing lawsuit or its implications for the message of the group’s annual march. “The March for Life Education and Defense Fund believes that life begins at conception/fertilization,” she wrote in an email. “The organization is opposed to any drug or device that has a mechanism of action that can be life-destructive.”

Joerg Dreweke, a policy researcher with the Guttmacher Institute, a pro-abortion-rights think tank, says the March for Life lawsuit is part of a pattern of anti-abortion groups conflating contraception with abortion in a quiet effort to roll back both.

“Birth control is very much in the movement’s cross-hairs, and antiabortion advocates are working to stigmatize contraception by blurring the lines between contraception and abortion,” he wrote in a recent analysis. “Yet, the movement is doing this in a strategic and deceptive way…Antiabortion groups ignore and often contradict their positions when it might hurt them politically.”

As evidence of this, Dreweke pointed to the fact that the March for Life, in promoting its upcoming events, wasn’t also touting the radical claims in its lawsuit: “If you take their lawsuit at face value, it turns the March for Life into the March to Ban Birth Control.”

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The Group Behind America’s Biggest Anti-Abortion March Now Says Birth Control Causes Abortions

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