The Friday Morning Quarterback

So much is being written about yesterday's Supreme Court decision “upholding” the Affordable Care Act (ACA) that it's hard to gain a clear perspective on the consequences of the decision. One week for now, I may regret most of what I've written here.

Here's the Court's decision. For those interested in just the basics, check out The New York Times' annotated summary. However, I recommend that everyone read Justice Ruth Ginsberg's dissent (which starts after p. 59) in its entirety. It's a masterpiece of clarity and common sense.

In reacting to the decision, I think President Obama hit the right note by refusing to discuss its political implications and focusing on the millions of Americans who are or will become seriously ill who will benefit from the decision. Paul Krugman had a similar reaction.

Let's face it. Regardless of Chief Justice John Roberts' motives, we dodged a bullet here. Just look at the decisions—both good and bad—that were announced this week: the reaffirmation of Citizens' United by striking down Montana's campaign finance reform law, the rejection of mandatory life sentences for juveniles, the upholding of Arizona's right to stop and detain people merely because they appeared to be Hispanic. A conservative, activist Supreme Court has inserted itself into the history of the country with consequences that will be difficult or impossible to reverse. The most important issue in November's presidential election may be its implications for future Supreme Court appointments.

Roberts' denial that the ACA constituted the “regulation of interstate commerce,” when health care accounts for 18% of GDP, is not just absurd. The implications of ruling that people who refuse to buy health insurance are not engaged in interstate commerce because they haven't bought it yet are difficult to foresee. In the past, the commerce clause has been used to justify a variety of labor, public health and safety, and civil rights laws that protect people who are not directly engaged in interstate commerce, but who are indirectly affected by its consequences, i.e., people who live downwind from a source of industrial pollution. These reforms now appear endangered by this decision. Does this mean that corporations may refuse to hire or serve minority applicants because, after all, if they are excluded from participation, they are not engaged in interstate commerce? How will this decision impact Congress's ability to implement a national energy strategy by, for example, requiring people to purchase some of their energy from renewable rather than nonrenewable sources?

One important provision of the ACA that the Supremes failed to uphold was the expansion of Medicaid. Under the ACA, Medicaid was expanded to cover all folks under 65 whose incomes are 133% of the federal poverty level or less. This amounts to about half of the 30 million people who are not now insured, but would be under the ACA. Medicaid is administered by the states, but the federal government agreed to provide 100% of the money for the Medicaid expansion in 2014. This was to be gradually reduced to 90% in 2020. The incentive for states to comply was that, if they refused, the federal government would withhold all their Medicaid funds.

Chief Justice Roberts thought this was too coercive, a “gun to the head” of the states. This is the first time in our history that a state spending requirement has been rejected as too coercive. What other federal requirements will states object to? In 1987, the states were told that all federal highway funds would be withheld unless they agreed to raise the drinking age to 21. Presumably the Roberts court would consider this too coercive. Federal funds for public education are contingent on the states' meeting federal standards. Is that too coercive?  

Will the states implement the Medicaid expansion even though there is no penalty for refusing to do so? The Democrats are optimistic. How can the states justify withholding benefits from poor people that are paid for entirely by the federal government? That's like turning down free money, right? However, just within the last three years, some states have turned down federal stimulus money and even unemployment benefits for their citizens. The Jackasses may have underestimated the extent of some Americans' hostility toward the poor, especially those Americans who mistakenly think that most Medicaid recipients are African-Americans.

If not all states implement the Medicaid expansion, the states in which this coverage is most likely to be denied are those whose citizens have the greatest need for it—states like Alabama, Mississippi, Louisiana and Texas. Although experts are still working out the detailed implications of yesterday's decision, it appears that, because the ACA assumes that the states will implement the Medicaid expansion, most of the people below 133% of the poverty level in any states that refuse to expand Medicaid will also be ineligible for low income subsidies to help them purchase health insurance. What a mess! Health care is far too important to be left to the states.

Finally, let's remember that the ACA is no substitute for a single payer health care system. Even if it is completely implemented, it still leaves 27 million people living in this country uninsured. As presently written, it does little to control either the cost or the quality of our health care. Needless to say, there is still a lot more work to be done.

Mission Accomplished

It's Wednesday. Here's something to think about while we're waiting for the nine Supreme beings to come down from the mountaintop tomorrow and hand us the tablet that will mean life or death for thousands of Americans.

By now, you probably know the recent history of health care reform. The individual mandate—the requirement that everyone purchase health insurance—originally proposed by the Heritage Foundation, a conservative think tank, was the cornerstone of Republican health care plans for two decades. They preferred it because it encouraged “individual responsibility.” President Obama opposed the individual mandate during the 2008 campaign, but he and the Jackasses eventually conceded in the hope of gaining conservative support. (Flip!) Then, in 2009, in an even more remarkable turnaround, the Elephants in Congress unanimously decided that the individual mandate was unconstitutional. (Flop!)

As Ezra Klein reports, in 2010, when 14 Republican state attorneys general filed their suit challenging the constitutionality of the Affordable Care Act (ACA), “it was hard to find a law professor in the country who took them seriously.” (Here's an analysis of why the ACA is constitutional.)

How did the corporate media report on the constitutionality of the law? First of all, here's what they were reporting on. There were nine court cases related to the constitutionality of the act. Four of these courts overturned the law and five upheld it. There were also several cases in which courts dismissed complaints without ruling on the constitutionality of the law.

Media Matters looked at all the reports devoted to these courts cases on the nightly newscasts of ABC, CBS, CNN, Fox and NBC—a total of 31 segments. Of these 31 segments, 26 (84%) reported decisions that the act was unconstitutional, 3 (10%) reported rulings that it was constitutional, and the remaining 2 (6%) dealt with dismissals. If instead of counting segments, you get out your stopwatch, you find that a remarkable 97% of air time was spent discussing cases that overturned the law.

Unfortunately, the researchers do not report the number of minutes these newscasts devoted to advertisements paid for by pharmaceutical companies, insurance companies and health care providers.

Newspapers were only marginally better. There were 59 articles about these court cases in the Los Angeles Times, New York Times, USA Today, Wall Street Journal and Washington Post. Thirty-five of them (59%) dealt with rulings that the ACA was unconstitutional, 17 (29%) dealt with decisions that it was constitutional, and 8 dealt with dismissals. Rulings of unconstitutionality were far more likely to make the front page.

It's possible that, initially, the greater attention given to rulings that the ACA was unconstitutional was due to the fact that journalists were surprised by these decisions, given the near-unanimity of their legal experts. However, that does not account for the consistency and longevity of these findings.

The bottom line is that this unbalanced coverage appears to have had its intended effect. A Gallup poll released earlier this month found that 72% of Americans think the ACA is unconstitutional. Several polls have found that the majority favor repeal of the law. For example, Rasmussen reported that, as of June 23-24, 54% of likely voters favor repeal and 39% oppose it. Although, as my colleague Paul Ricci reports, a majority of those folks favor starting work on a new health care reform bill, it's hard to imagine that any new health care legislation could get through Congress in the foreseeable future.

"We Need You to Tell Us That This is What Happened"

Not surprisingly, news coverage of Tuesday's defense presentation at the Jerry Sandusky trial focused on the testimony of Dorothy Sandusky. People are understandably interested in the reactions of a woman who, if her husband is guilty, has been publicly humiliated. However, there was other testimony that day that is potentially more important, testimony about the possibility of suggestive questioning of alleged victims by the Pennsylvania state police.

First of all, it is important to remember that Victim 4 was the prosecution's star witness. He was the first alleged victim to testify, and he gave the most detailed account of his alleged molestation. He is the one who claimed that oral sex happened “almost every time I'm over there. And I'm over there two or three times a week.”

The following four paragraphs are from the inside page of Wednesday's Pittsburgh Post-Gazette, about halfway through the article.

Earlier in the day, Mr. Amendola [Mr. Sandusky's attorney] called state police Cpl. Scott Rossman and retired Cpl. Joseph Leiter in a bid to show jurors that investigators led the accusers to make up stories about the alleged abuse. He played a tape of an April 21, 2011, interview in which Cpl. Leiter tells the man who later would become known as Victim 4 that he was not the first person interviewed, that there were nine others, and that their stories were similar.

“There's a pretty well-defined progression in the way he operated and still operates I guess to some degree,” the officer said. He went on to tell the would-be accuser that in some cases, Mr. Sandusky allegedly went beyond touching or fondling children. “There have been acts of oral sex that have taken place,” and an incident “classified as rape.”

“I don't want you to feel ashamed because you're a victim in this whole thing. What happened happened. He took advantage of you. We need you to tell us that this is what happened. We need you to tell us as graphically as you can what took place,” the corporal said.

Under questioning by the lead prosecutor, Senior Deputy Attorney General Joseph McGettigan, Cpl. Leiter defended his method and said he never intended to elicit anything but the truth from the interview.

Although I only know what I read in the paper, this seems almost like a textbook illustration of how not to interview a possible victim of child abuse.

In the ' 80s and '90s, there were a number of high profile cases—such as the Little Rascals Daycare in North Carolina and the McMartin Preschool in California—in which adults were falsely convicted of molesting children on the basis of testimony elicited either by police officers or by psychologists and social workers employed by the prosecution. The existence of false memories is well documented by research. The false memory syndrome refers to cases in which people who sincerely believe they have been sexually abused, but where their recall of abuse is apparently a memory disturbance, or confabulation. Elizabeth Loftus, among others, has shown that adults can be induced by repeated suggestive interviews to have highly emotional false memories about events their childhood that actually never happened.

At the root of suggestive questioning is the fact that interviewers often exhibit confirmatory bias—the tendency to search for information that confirms their beliefs and ignore information that might disprove them. Stephen Ceci and Maggie Bruck have summarized the research literature on interviewer behaviors which encourage false accusations of child abuse. Among them are:

• Stereotyping the suspect as a bad person.
• Telling the witness that peers have reported abuse.
• Suggestive questioning. A suggestive question refers to a possible answer in the question itself, i.e., “Did he touch your privates?” rather than “What did he do next?” In the worst cases, interviewers describe an abuse scenario reported by others and ask the witnesses whether something like that happened to them.
• Repeated questioning. Interviewers ask the same questions several times until they get the desired response.
• Selective reinforcement of responses. We usually think of reinforcement as attention and praise that occurs after a response. However, reinforcement can be anticipated before the fact when interviewers state or imply that they will be pleased if the witness can make an accusation.

All of these conditions can be read into the description of yesterday's testimony except repeated questioning. The New York Times fills in that particular blank.

The interviewers acknowledged that some of the witnesses at first insisted that nothing untoward occurred and told of abuse only on a second or third police interview, but that such reluctance was not unusual.

It is important to remember that this is not just hearsay. We don't have to speculate about what was said to Victim 4. The interview is on tape. How many other interviews were tape recorded? Was the same interrogation strategy followed with other alleged victims? How many suspected victims were interviewed who did not report abuse despite repeated questioning?

The fact that the investigators knew that the tape was running makes it clear that they were not consciously attempting to falsely implicate Mr. Sandusky. It suggests instead that they were poorly trained in the technique of interviewing alleged victims of sexual abuse and were unaware of the implications of their behavior.

The existence of suggestive questioning does not directly address the question of Mr. Sandusky's guilt or innocence. In either case, this is an unfortunate situation. If he's actually guilty, the incompetence of these officers could have jeopardized the case against him. If he's innocent, it may have contributed to a false conviction.