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Gayle in MD
06-28-2012, 07:01 AM
REPORT: Media Overwhelmingly Focus On Rulings Against Health Care Reform Constitutionality
June 22, 2012 11:46 am ET — 16 Comments
A majority of federal rulings on the substance of President Obama's health care reform law have found it to be constitutional, including the law's mandate that individuals purchase health insurance. But a Media Matters review of the five largest newspapers and the flagship CNN, Fox News, ABC, CBS, and NBC evening news programs finds that the media overwhelmingly focused on rulings that struck down the law in whole or in part -- 84 percent of segments on the broadcast and cable programs reviewed and 59 percent of newspaper articles that reported on such rulings -- while largely ignoring rulings that found it constitutional or dismissed the case.

Individual Mandate A Conservative Idea, Assumed Constitutional Until Health Reform Fight
Individual Mandate Invented By Conservative Heritage Foundation, Supported By GOP In '90s. In an article for The New Yorker, Washington Post columnist Ezra Klein wrote:

The mandate made its political début in a 1989 Heritage Foundation brief titled "Assuring Affordable Health Care for All Americans," as a counterpoint to the single-payer system and the employer mandate, which were favored in Democratic circles. In the brief, Stuart Butler, the foundation's health-care expert, argued, "Many states now require passengers in automobiles to wear seat-belts for their own protection. Many others require anybody driving a car to have liability insurance. But neither the federal government nor any state requires all households to protect themselves from the potentially catastrophic costs of a serious accident or illness. Under the Heritage plan, there would be such a requirement." The mandate made its first legislative appearance in 1993, in the Health Equity and Access Reform Today Act--the Republicans' alternative to President Clinton's health-reform bill--which was sponsored by John Chafee, of Rhode Island, and co-sponsored by eighteen Republicans, including Bob Dole, who was then the Senate Minority Leader. [The New Yorker, 6/25/12]

Klein: "It Was Hard To Find A Law Professor In The Country" Who Found Health Care Law Unconstitutional When It Was Passed. Klein quoted several law professors questioning the legal standing of the argument suggesting that an individual mandate for health insurance is unconstitutional at the time legal challenges against it began:

In March 23, 2010, the day that President Obama signed the Affordable Care Act into law, fourteen state attorneys general filed suit against the law's requirement that most Americans purchase health insurance, on the ground that it was unconstitutional. It was hard to find a law professor in the country who took them seriously. "The argument about constitutionality is, if not frivolous, close to it," Sanford Levinson, a University of Texas law-school professor, told the McClatchy newspapers. Erwin Chemerinsky, the dean of the law school at the University of California at Irvine, told the Times, "There is no case law, post 1937, that would support an individual's right not to buy health care if the government wants to mandate it." Orin Kerr, a George Washington University professor who had clerked for Justice Anthony Kennedy, said, "There is a less than one-per-cent chance that the courts will invalidate the individual mandate." [The New Yorker, 6/25/12]

Law Professor Unable "To Find Even A Hint Of The Constitutional Objection Before Obama's Election." Andrew Koppelman, a John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University who is writing a book on constitutional objections to the law, wrote in Salon:

The constitutional limits that the bill supposedly disregarded could not have been anticipated because they did not exist while the bill was being written. They were invented only in the fall of 2009, quite late in the legislative process. [Salon, 5/31/12, emphasis in original]

More Courts Have Upheld The Law Than Overturned It. According to a compilation of court cases related to the Affordable Care Act by Kaiser Health News, four courts -- the Northern District of Florida, the Eastern District of Virginia, the Middle District of Pennsylvania, and the 11th Circuit Court of Appeals -- have struck down the law in whole or in part. In contrast, five courts -- the Western District of Virginia, the Eastern District of Michigan, the District of Columbia, the 6th Circuit Court of Appeals, and the D.C. Circuit Court of Appeals -- have upheld the individual mandate as constitutional. The 4th Circuit Court of Appeals later vacated the judgments of the Virginia district courts and remanded those cases for dismissal on jurisdictional grounds. In several other cases, courts dismissed the complaint without ruling on the constitutionality of the law. [Kaiser Health News, 11/14/11]

Media Overwhelmingly Focused On Rulings Against Constitutionality
84 Percent Of Broadcast And Cable Segments Reported On Rulings Striking Down The Law. Out of a total of 31 segments on ABC's World News, CBS' Evening News, NBC's Nightly News, CNN's The Situation Room, and Fox News' Special Report that reported on court rulings related to the health care law, 26 (or 84 percent) dealt with rulings that found the individual mandate unconstitutional. In contrast, only three (or 10 percent) segments reported on rulings that upheld the law. Two segments (or six percent) reported on court rulings that dismissed their cases without ruling on substance.



Charts:

http://mediamatters.org/research/201206220002