Michael Hiltzik of the Los Angeles Times is an extraordinary opinion writer. I subscribe to the LA Times, and I always look forward to his cogent insights. In this one, he describes the tactics of rightwing lawyers, who shop for rightwing judges. When they wanted to invalidate a key plank in Obamacare, they knew exactly where to go to find a zealot to take away free preventive care from all Americans. If not reversed, this decision will cost hundreds of thousands of lives–by denying access to early screenings for cancer and other deadly diseases.
Hiltzik writes:
You might have thought that, more than a dozen years after its enactment, the Affordable Care Act was finally safe from interference by right-wing judges carrying water for religious fanatics and anti-government activists.
Unfortunately, a ruling from a one-horse federal courtroom in Texas reminds us that there’s almost an endless supply of those litigants and the judges who run with them. Less than two weeks ago, U.S. Judge Reed O’Connor invalidated an ACA provision mandating that a long list of preventive care services be provided to patients without co-pays or deductibles.
If O’Connor’s March 30 ruling stands (the government is certain to appeal), it would block no-fee preventive services such as breast- and cervical-cancer screenings for millions of women, smoking cessation programs, hepatitis tests, screening for diabetes, osteoporosis, depression, HIV and many other conditions and health risks.
A court oversteps its authority when an injunction does more than benefit the plaintiffs who have sued.
— Law professors Nicholas Bagley and Samuel Bray
The anti-HIV provision, as it happens, was the principal target of the plaintiffs in this case. Among them are Steven Hotze, a self-described Christian owner of a “wellness” center who complained that the Affordable Care Act mandate to provide anti-HIV drugs would “facilitate behaviors such as homosexual sodomy, prostitution, and intravenous drug use — all of which are contrary to Dr. Hotze’s sincere religious beliefs.”
Hotze also objects to other preventive-care mandates that require his business’ health plans to cover screening for and counseling about sexually transmitted diseases “for those engaged in non-marital sexual behavior.”
O’Connor’s ruling undermines one of the bedrock public-health features of the Affordable Care Act, its encouragement of services aimed at keeping Americans healthy by catching signs of developing medical issues before they require costly interventions.
Sadly, the ruling didn’t come as much of a surprise: Not only did O’Connor telegraph his decision during hearings on the lawsuit months ago, but he’s the same judge who in 2018 tried to throw a monkey wrench into Obamacare by declaring the entire law unconstitutional.
The Supreme Court slapped him down with a 7-2 ruling upholding the act’s constitutionality in 2021, but that didn’t seem to invest O’Connor with any measure of humility.
O’Connor’s latest ruling underscores a major problem with America’s federal judicial system. That’s the ability of hack judges in backwater courthouses to interfere with policy by issuing nationwide injunctions based on specious or at least shallow legal arguments.
In time, we will see whether the Trump Supreme Court agrees that Americans don’t need preventive health care.
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Diane Ravitch's blog 
Diane Lots to comment on here, however, a note on this quote:
“A court oversteps its authority when an injunction does more than benefit the plaintiffs who have sued.” (Law professors Bagley and Bray) . . .
. . . the emphasis above is on what might benefit the plaintiff RATHER than on the argument itself or the reasons offered for the injunction.
This problem of redirecting the focus on the persons involved rather than on the arguments themselves is all over the place in right-wing conversations, courts, and Congresses, and it is a major method of fascist personalities. But it is also one major method and source of the over-politicization of pretty-much everything we see today . . . it’s subtle, and so easy for most of us just follow the transition without recognizing it . . . the fallout, however, is that the truth of the argument itself is lost in the refocusing transition.
The logical fallacy is “argument to the man” variously named. If memory serves, it used to be on law school exams as a no-no. CBK
Duane My response to your last note went to moderation. CBK
Addendum to my above note: * . . .it’s subtle, and so easy for most of us just follow the transition without recognizing it . . . the fallout, however, is that the truth of the argument itself is lost in the refocusing transition.
I should have added: . . . “the truth OR FALSITY of the argument is lost in the refocus and so either one with continue to stand unchallenged. So, for instance, if truth is on the side of the plaintiff, the lawyers arguing for it (via responding with another fallacy) have already gone down the rabbit-hole of degenerate movements on the part of the court. It’s where we are already. CBK
Defense attorneys both on the left and the right judge shop, also.
Frances Kelsey Fan writes: “Defense attorneys both on the left and the right judge shop, also.”
The call of the rabbit hole is a powerful thing. It’s one method that evil uses to replicate itself. CBK
“It’s one method that evil uses to replicate itself.”
So “evil” is a living being/thing?
Don’t know and don’t feel like looking up what logical fallacy that is. Evil is a descriptive term used to describe events/actions/people that are the ultimate of heinousness. The description of something is not the thing itself but he you seem to say that “evil” is an actual entity. How can that be?
Hello Duane Okay. But about evil. What did I mean? Basically, in my usage of the term in this situation, I meant the opposite of the good, or to put oneself on a downward route to decay. Think of a spiral downward.
But as a general idea, just substitute “evil” for a worse version of “bad behavior,” attitudes, and intentions of real persons about real things and in real events. Or: the conflictive flow from one act to another is self-destructive and goes from bad to worse. Or: it’s to foster situations that condition us to fall into moral hazard (like scamming naive people, for example) . . . to respond to bad acts without thinking and with vindictiveness, and act as if there is no other way. Or, as I said in an earlier note about using a logical fallacy, the focus subtly shifts FROM the discussion and, in law, FROM the argument and its truth or falsity TO personal attack. There is no benefit for anyone in it. How’s that? CBK
Thanks for your explanation. Helps me understand what you are trying to say.
Not that I’d give the thought much credence as evil is a description and not a “living” thing that can replicate. Evil is the very human expression/term that we use to describe things, it’s not an action or entity.
As a former prosecutor, I vehemently disagree.
I’m not sure with whom you are disagreeing, CBK or me.
You, though respectfully.
I do consider evil to be a force.
Yes, we will disagree on that.
Hello Duane You write: “Not that I’d give the thought much credence as evil is a description and not a ‘living’ thing that can replicate. Evil is the very human expression/term that we use to describe things, it’s not an action or entity.”
Of course, “evil” is a descriptive term that over the centuries has accumulated many diverse meanings. That said, and insofar as I don’t think of myself or other human beings as abstractions but as fully (and so existentially) involved in history, and always as living on the cusp of the question of the good and its opposite, for me, evil is a meaningful term that we use to describe concrete choices and actions that “live” in similarly concrete situations; though as “living,” certainly not as polarized (exclusively or Absolutely good or bad alone) or necessarily limited to that description.
Perhaps you are right, then, that I should have said: “That’s how WE replicate evil.” . . . Back on point now? (BTW, have you ever read “The Screwtape Letters”?) CBK
“That’s how WE replicate evil.”
Yes, that is what I am getting at.
And, no, I haven’t read “The Screwtape Letter.”
Duane I’m glad we cleared that up (about how WE replicate evil).
For clarity, the fundamental point to my earlier note is that it’s oh-so-easy to get caught up in the logical trail of this or any of the fallacies . . . in this case, it’s about following the trail FROM a focus on the truth or falsity of what’s “on the table” for discussion, TO a focus on personal attack, and so to a focus on “the man,” or on the person speaking or writing.
If we are unaware of it, there goes the truth/falsity of the discussion/argument itself. One reason I referred to it as evil is that it’s a form of manipulation used mostly by the slimy disingenuous who often use another truth or half-truth to pave the trail, like bringing up something outrageous. And so as unaware of the manipulation tactic, we follow suit, as we join in the fallacy.
The fallacies commonly work on people who trust that the other person is speaking genuinely as the trusting person does, though naive trust is often accompanied by ignorance.
But the problem is far from “academic” and is evident in our own Congress almost daily. Trump (et al) uses this and other fallacies every time he opens his mouth. The fundamental point is to become conscious and aware of fallacies not only to avoid using them ourselves, but to be aware when someone is trying to manipulate us or others, or when we are being “gaslighted.”
The caveat is that, as with much that is human, the fallacies can also be used for the good. CBK
Thanks, excellent commentary.
FKF: Your conclusion being?
I hope so.
If one side does it and the other one doesn’t, it’s like going into battle with a sling shot and one pebble, against thousands of loaded and automatic AR-15s just like mowing down unarmed teachers and children in classrooms.
A defendant’s ability to judge-shop is extremely limited. They can’t pick the jurisdiction they’re sued in. They can remove cases, but only in the district in which the case was filed. So they have almost no control over where cases are heard, much less which judge hears those cases.
This is not true. Many litigants have established themselves in the districts of judges where there is only one judge in that district to hear the case. They file where they are based since that is where the “damage” is caused when something occurs across multiple districts like the ACA provisions.
They then get that judge, and the judge rules as they want.
“They file where [these judges] are based . . . ”
Plaintiffs file lawsuits. Defendants don’t file lawsuits. As I said, Defendants have almost no ability to judge shop.
So how did the anti-abortion happen to get the federal judge in Amarillo, Texas, who was a passionate opponent of abortion?
Because they were the plaintiffs and filed their case in the Amarillo division, and the district’s rules say that cases filed in that division are assigned to the lone judge who sits there.
The plaintiffs went judge shopping.
Correct.
In political terms, is “more than a dozen years after” of greater or lesser value than “more than 50 years after?”
GregB– Good question. I suspect it makes no difference at all. Those who have turned us back into a nearly-unfettered, laissez-faire capitalist system were working on it since the ‘30’s New Deal, & didn’t start making traction for about 50 yrs. Those who succeeded in overturning Roe had been working on it for 43+ yrs. It took civil rights activists 90+ yrs since Jim Crow started to get civil rights laws. The ACA is but a blip on the radar measuring movement from privatized to single-payer health insurance. Stay tuned, I guess…
These small town right wing federal judges are using their power to disrupt policies with which they disagree. It’s another distractive strategy that the far right uses to foment uncertainty and chaos, which they believe, will work to their political advantage. They want to make the left constantly play defensive. The left needs to up its game.
Easier said than done. Trump did grievous harm to the federal judiciary.
And he was spoon fed what to do.
Trump ended the practice of having judicial nominations rated by the American Bar Association. He appointed many totally unqualified nominees. He chose from a list compiled by the Federalist Society, run by Leonard Leo. The list was made up of judges prepared to overturn Roe and tear down the wall of separation between church and state.
8-11-2021
“Judge Reed O’Connor Blocks Enforcement Against Franciscan Alliance (Catholic hospitals)…entitled to permanent injunction under the Religious Freedom Restoration Act.” A related case involved the Religious Sisters of Mercy.”
Not much mercy for women and gay people- those who care about women and gay people should consider carefully the decision to go to a Catholic hospital.
Judge Reed O’Connor- Insurers don’t have to cover HIV prevention.
Speculating- that includes kids in homes and churches where they are repeatedly raped.
And imagine when the right wing judge shopping vote stealing zealots are IGNORED. Just long enough to focus on children and their best public school steps forward.
“In this APPALACHIAN Ohio town, school leaders grasped the depth of the crisis: More students were absent. More were involved in fights and other incidents. More quit on their class assignments. Some gave up on bricks-and-mortar school — switching to an online provider, only to return further behind. Reports of child neglect and abuse in the county jumped nearly 20 percent in 2022 from a year earlier, according to Athens County Children Services data.
At Nelsonville-York City Schools, leaders believed that if kids weren’t emotionally and psychologically stable, they wouldn’t thrive academically.
So they put off other initiatives and zeroed in on mental health.
The school’s efforts for the 2022-2023 school year were large and small, scripted and improvised — home visits, grocery donations, therapy sessions, animal encounters, curriculum change.”
https://www.washingtonpost.com/education/2023/04/28/school-mental-health-crisis-ohio/
Hate to be Captain Obvious, but this is what happens to a politically-polarized population: politically-polarized judiciary– whether elected via partisanship/ gerrymander, or appointed via dark $. Makes a mockery of terms such as “judicious.”