Eliminating Pre-existing Conditions Protections Will Have Disastrous Consequences for Older Americans
Currently the Affordable Care Act (ACA) protects people with pre-existing conditions by outlawing health insurance companies from refusing to sell plans to individuals because of existing health issues. These protections are particularly important for older Americans who obviously are more likely to have a pre-existing condition. Unfortunately, these protections could be compromised by Department of Justice’s (DOJ) decision not to defend the ACA’s in a lawsuit brought by Texas and 19 other states. The basic premise behind the litigation is that because of last year’s tax reform legislation, the individual mandate has been effectively eliminated because people will no longer be taxed for not carrying health insurance. Taken one step further, these 20 states argue that because the individual mandate is so integral to the ACA, that the rest of the legislation should be found unconstitutional (it should be noted the administration is only arguing pre-existing protections and community ratings should be found invalid). Currently around 25 million older Americans (50 to 64) could be denied insurance in the individual market if the protections for people with pre-existing health conditions are eliminated.
First the DOJ’s decision is concerning because it runs contrary to its own long standing tradition of generally defending federal law in litigation, even if the current administration is ideologically opposed to the policy. Law professor Nicholas Bagley from the University of Michigan who used to work at the DOJ said, “I am at a loss for words to explain how big of a deal this is. The Justice Department has a durable, long-standing, bipartisan commitment to defending the law when non-frivolous arguments can be made in its defense. This brief torches that commitment.”
In addition, in a letter from Attorney General Jeff Sessions to House Speaker Paul Ryan regarding this litigation, Sessions argues that without the individual mandate, “individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else.” Meaning people could go without insurance until they become sick, and because of pre-existing conditions protections insurance companies would be forced to sell sick people policies, thus driving up the costs for everyone else. If I understand this correctly, Congress and the White House repeal the individual mandate, which will likely drive up health insurance premiums, and their solution to this problem is to deny protections for people with pre-existing conditions.
While a final resolution regarding this litigation is a ways off, currently the ACA has been instrumental in providing improved health care protection and coverage for older Americans. For example, according to the Commonwealth Fund in 2010, 43 percent of individuals between the ages of 50 to 64 who attempted to purchase health care coverage where either rejected, charged higher premiums or had certain health conditions omitted from policies. The ACA combats these problems by not allowing people to be denied for pre-existing conditions, limiting what insurance companies can charge older Americans compared to younger people and regulating individual’s insurance premiums through tax credits. The Commonwealth Fund reports between 2012 to 2016 older Americans between 50 and 64 saw the uninsured rate drop from 13 to 8 percent. Clearly older Americans have seen substantial improvements in health insurance access since the ACA was enacted; eliminating protections for pre-existing conditions will inevitably cause older adults health care costs to increase.
Furthermore, as I have reported in my previous blog, Repealing and Replacing The Affordable Care Act And Its Impact on Medicare, older Americans who don’t have health insurance prior to turning 65 are more likely to require more expensive health care once they enroll in Medicare. The Justice Department’s decision not to defend pre-existing conditions in litigation will only make older adults less healthy before they enroll in Medicare by potentially limiting access to health insurance.
Lastly, this litigation flies in the face of public opinion. According to a Kaiser Family Foundation poll, support for pre-existing protections is solid across the political spectrum with support amongst 84 percent of Democrats, 68 percent of Independents and 59 percent of Republicans.
Thankfully, the ACA is still standing and our elected officials in Washington, D.C. have been unable to repeal and replace the ACA. Realizing that a legislative repeal of the ACA might be unworkable, everything has been done to weaken this legislation. The administration has drastically reduced the ACA’s advertising budget, eliminated the cost-sharing subsidies and expanded short-term health plans which don’t offer key ACA protections.
Sadly, the current lawsuit’s end result could potentially strip away basic health care protections for older Americans. What happens if the court sides with the plaintiffs and gets rid of pre-existing conditions protections? Are older Americans expected to go back to a health care system where their plans are more expensive and protections are less stringent? Let’s hope for the sake of all Americans our court system protects safeguards put in place by the ACA for people with pre-existing protections.
Evan Carmen, Esq. is the Assistant Director for Aging Policy at the B’nai B’rith International Center for Senior Services. He holds a B.A. from American University in political science and a J.D. from New York Law School. Prior to joining B’nai B’rith International he worked in the Office of Presidential Correspondence for the Obama White House, practiced as an attorney at Covington and Burling, LLP, worked as an aide for New York City Council Member Tony Avella and interned for Congressman Gary Ackerman’s office. Click here to read more from Evan Carmen.
As candidates campaign for Congressional seats across the United States this summer, anti-Israel and in some cases overtly anti-Semitic views have manifested themselves among outliers in both parties.
These candidacies showcase familiar tropes on the left and right, respectively. Though right-wing groups are generally anti-immigrant and anti-Muslim as well, their opposition to integration and their ongoing embrace of Holocaust denial and anti-Semitic conspiracy theories are intensely threatening to Jews. On the left, the demonization of Israel and the double standards applied to it have increased the stigmatization and marginalization of the Jewish state. This trend has fueled momentum for the Boycott, Divestment and Sanctions (BDS) movement and for harassment of Jewish students on university campuses.
Not all of these candidates, or others who share their views, will prevail in November. But the lesson for now is that anti-Israel and anti-Semitic exponents continue to find a voice in the public discourse and landing spaces in our political system. How mainstream officials and institutions in both parties react to these outliers and their ideas will shape the future of U.S. policy with respect to pluralism and Middle East policy.
Eric Fusfield, Esq. has been B’nai B’rith International’s director of legislative affairs since 2003 and deputy director of the B’nai B’rith International Center for Human Rights and Public Policy since 2007. He holds a B.A. from Columbia University in history; an M.St. in modern Jewish studies from Oxford University; and a J.D./M.A. from American University in law and international affairs. Click here to read more from Eric Fusfield.
Declaration of the Establishment of the State of Israel (People's Council –May 14, 1948)
"… We, members of the People's Council … hereby declare the establishment of the Jewish State in Eretz-Israel, to be known as the State of Israel … The State of Israel will be open for Jewish immigration and for ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice, and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience and culture."
British Mandate for Palestine (Council of the League of Nations – July 24, 1922)
"Where as the Principal Allied Powers have already agreed that the Mandatory shall be responsible for putting into effect the [Balfour Declaration] … and whereas recognition has thereby been given to the historical connection for the Jewish people with Palestine and to the grounds for reconstituting their national home in that country… the Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home … and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion… The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudice, shall facilitate Jewish immigration under suitable conditions and shall encourage …. close settlements by Jews, on the land, including state lands and waste lands not required for public purposes."
Sam Remo Resolution (Four Principal Allied Powers of World War I – April 25, 1920)
"… The Mandatory will be responsible for putting into effect the declaration originally made on Nov. 2, 1917, by the British government and adapted by the Allied Powers in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of the non-Jewish communities in Palestine…"
Balfour Declaration (His Majesties Government – Nov. 2, 1947)
"… His Majesty's Government view with favor the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine…"
United Nations Special Committee on Palestine Report, adapted as UN Partition Plan for Palestine (UN General Assembly, Nov. 29 1947)
"Palestine within its present borders… shall be constituted into an independent Arab State, an independent Jewish State, and the city of Jerusalem…"
Basic Law: Human Dignity and Liberty (Knesset, March 17, 1992)
"Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state".
Basic Law: Israel – the Nation State of the Jewish People (Knesset, July 19, 2018)
"The Land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established. The State of Israel is the nation state of the Jewish People in which it realizes its national, cultural, religious and historical right to self-determination. The exercise of the right to national self-determination in the State of Israel is unique to the Jewish People … The State shall be open for Jewish immigration and for the ingathering of the Exiles… The State views the development of Jewish settlements as a national value, and shall act to encourage and promote its establishment and strengthening…"
I chose to open this article with quotes from the instruments of the international community that set the foundation for the creation of the State of Israel and the Declaration of Independence, in order to re-establish the obvious — that Israel was always conceived as the nation-state of the Jewish people; not a bi-national or multicultural state devoid of any controlling identity and purpose and whose failure across Western Europe is now clear. In such a state, affirmative action for a small, persecuted minority — in the region — the Jews, should not raise such hackles.
Yet, the Basic Law: Israel – The Nation State of the Jewish People (the Law), has engendered more vociferous debate and demonstrations than any legislation passed by the Knesset in recent memory, surpassing by far the recent surrogacy and IDF draft laws that also tackle significant moral and national issues. Not only has it galvanized Diaspora Jewish sentiment — on both sides of the isle — but it has raised from relative slumber Israel's most loyal minority — the Druze, whose religious and political leaders have very publicly declared war on the Law, in addition to leaders of the Bedouin minority, many of whose members serve in the IDF. Nearly a month after being passed, even massive Hamas rockets attacks and the specter of another retaliatory Israeli ground offensive have not changed the level of discourse about the Law.
Last Wednesday's special Knesset debate, called despite the summer recess, offered another opportunity for both sides to restate their positions. Newly-elected Opposition leader Tzipi Livni (Zionist Union) who sees opposition to the Law as a strong rallying point in the next election, whenever they are held, excoriated Prime Minster Netanyahu for the "damage [the Law] is causing to the values of equality and democracy."
Arguing that it runs counter to the Declaration of Independence and causes undue strife, she challenged him to immediately call elections that would serve as a referendum for the Law. Ahmad Tibi (Joint [Arab] List), who has accused Israel of being an Apartheid state, slammed the Law for anchoring a classification of citizens. Citizens who have everything are raised above other groups, a collective with high status, and below that is everyone who isn't Jewish and has no rights. Yesh Atid head Yair Lapid accused the prime minister of "eroding one value after another" — this time the value of friendship with regard to the Druze.
Offering a rebuttal on behalf of the government, Minister Zeev Elkin explained that just like the Basic Law: Human Dignity and Liberty took principals from the Declaration of Independence, and anchored them as Basic Law, so too does the Jewish Nation State Law. "Just as the rights of the individual were entrenched [in the Basic Law: Human Dignity and Liberty], we are making sure that the picture is in balance … When you go over the law article by article, there is nothing here that someone who still has a grain of Zionism in him could disagree with … [The] vast majority of the Israeli public is Zionist and is not ashamed of the fact that we are the nation state of the Jewish people."
The Law was first proposed nine years ago to fill a legal void left by the passage of a series of Basic Laws (that make up Israel's piecemeal constitution) that determined the powers of the three branches of government, assured the freedom of occupation, human dignity and liberty but did not establish the identity and purpose of the state — a cornerstone of any constitution.
Already back in 1948 the High Court of Justice found that the Declaration of Independence — that eloquently established Israel as the nation state of the Jewish people while assuring personal and religious freedoms and rights to all its citizens — has no constitutional or legal consequence. Furthermore, iconic and long-serving Supreme Court President Aharon Barak declared in 1995 that the two Basic Laws passed in 1992 — Freedom of Occupation and Human Dignity and Liberty — laid the foundation for a "constitutional revolution," appropriating the right of judicial review of all Knesset legislation in the light of these two Basic Laws.
Furthermore, when Jewish and democratic values collide — both of which appear as foundations of the Human Dignity and Liberty Basic Law — Barak ruled that the court would interpret the Jewish value with the highest level of abstraction, meaning — according to Tel Aviv University lecturer Emmanuel Navon — that it shall be ignored. This judicial revolution had very practical impact, as Barak's court and those that followed in his image, decided in favor of an Arab petitioner who sought to purchase a home in a village established by the Jewish Agency for Jews, but that a Jew could not purchase land in a Bedouin village, and has struck down dozens of other laws and amendments, some of which were showcase legislation for the government dealing with the illegal migrants and Haredi draft.
This judicial activism by the court irked many legal and political conservatives who accuse the court of being an unelected bastion of the Left that has won only two general elections since 1977 and is therefore out of touch with the majority of Israel society today. The Basic Law now gives the court — which is evolving into a more ideologically balanced bench under the hand of Minister of Justice Ayelet Shaked — the tool to rule that the Jewish character of the state can rightfully take precedent over demands that the Jewish flag, anthem, calendar, immigration, settlement and Jerusalem should be replaced with an all-inclusive alternative.
On the issue of Arabic as an official language, this dates to an archaic Mandatory law dating back to 1922 which actually established English as the predominant of three official languages, alongside Arabic and Hebrew. When the official status of English was abolished as part of the first act of the provisional Knesset in 1948 immediately after Independence, Hebrew and Arabic remained as equal official languages. The Basic Law recognizes the fact that Hebrew is the leading language in Israel but assures Arabic a "special status." Furthermore, the law states that setting Hebrew as the state's sole "official" language "does not harm the status given to the Arabic language before this law came into effect."
Also, as David Hazony points out in a recent Forward article, the Jewish State Law communicates favorably with constitutions and laws of ethnically and historically based democracies across Europe where the nation of nation and state are well understood and entrenched, as opposed to the United States where it understandably is not, even among many Jews in relation to Israel.
So in light of all this, why the outcry now that the principle of a Jewish state has been codified in actionable legislation? Demonstrators at Saturday night's anti-law rally at Tel Aviv's Rabin Square may have provided the answer. Chanting the Palestinian rallying call for violence against the State of Israel ("with spirit, with blood, we shall redeem you, Palestine") while waving the Palestinian flag (which, according to professor Eli Carmon, is a version of the rejectionist pan-Arab flag that symbolizes rejection of everything but Islam, these Israeli citizens showed that like many across the Arab world they are yet to come to terms with Israel as a Jewish state and still seek to "redeem" it — all of it — even 70 years later, through violence.
Speakers at the rally — organized by the "High Monitoring Committee for Arab Citizens of Israel" all supported the notion that Israel become “a state of all its citizens” — a specter that the leadership of the Arab minority and some in the Radical Jewish Left have actively promoted over the past decades, as reflected in the four "Arab vision" papers published in 2006 and 2007 by Arab civil society organizations, alongside support for the "Right to Return" by millions of Palestinian refugees and their decedents that together would put a quick end to the Jewish state. Many Israelis fear that these are the true sentiments held by many Israeli Muslim citizens, and has had a numbing effect on genuine efforts at civic co-existence and integration.
Two major questions remain: First, how to placate the loyal minorities who — looking at the plight of minorities across the Middle East — recognizes that their personal and collective future is inexorably linked to continued Jewish control of Israel. This is particularly true of the Druze who, since Israel's independence, have served the state bravely and with distinction. Netanyahu has taken their concerns — that have lead to threats by Druze diplomats and officers to resign their posts in protest — to heart and has already made a number of proposals, including special legislation to recognize the status of the community, grants for programs etc. while not conceding on the integrity of the Law.
Another tack the prime minister could take to recognize the significant increase in Christian enlistment in the IDF could be to acquiesce to petitions to establish a community in the North for indigenous Christians who have utilized the new nationality option in the Citizens Registry and have as Arameans.
Finally, the prime minister will have to find the right words to explain to segments of the American Jewish population that while Israel cherishes their support, they should not be mistaken that Israel was created in the image of the multicultural United States melting pot (a notion that is failing in many Western European countries, reeling from the results of mass Middle Eastern and North African immigration). Instead, Israel should be celebrated universally by the American Jewish community as having prevailed as "a villa in the jungle" (a term coined by Ehud Barak) for seven decades against all odds and for providing the best chance for Jewish survival into the future.
European Days of Jewish Culture
Constantly spearheading exciting projects which bring to life Judaism’s rich cultural heritage and educate the public on its integral role in the development of European civilization, The European Association for the Preservation and Promotion of Jewish Culture and Heritage (AEPJ) is now supported by B’nai B’rith Europe and 13 other organizations that have assumed the mantle of preservation in the aftermath of the tragic destruction resulting from World War II. Its visually impressive website is an enticement to hop a plane to get a look at the actual sites that are partially represented by photos depicting highlights of the 33 cultural routes mapped throughout the continent. Located in countries including Austria, Italy, Poland, Spain and Turkey, they were developed to provide an insider’s view of synagogues and other architectural treasures, some recently restored, and sites of historic interest as well as special exhibits and fine arts collections on view in local museums and archives. Assisted in the realization of its mission by important leaders and arts professionals, the AEPJ continues to revise its horizons.
For the past 19 years, AEPJ has spearheaded the annual “European Days of Jewish Culture” devoted each year to a tradition or broad concept intended to inspire a wide range of creativity, innovation and inclusion throughout the continent. Encompassing folklore and private diaries to biblical legends and Kabbalah, “Storytelling” has been designated as this year’s theme, with Sept. 2 representing the official date but in most places the celebration will commence prior to that day, and extend beyond, with cultural events including concerts, dance programs, screenings, dramatic productions, lectures and discussions produced by local arts ensembles, museums, libraries and academic institutions. For the first time, AEPJ has partnered with the National Library of Israel in the creation of a resource guide and a special touring museum show, among other initiatives.
“To Kill A Mockingbird” Coming to Broadway
After a few glitches with the estate of author Harper Lee, Oscar-winning screenwriter, playwright and movie director Aaron Sorkin is going ahead with his plans to bring his dramatic adaptation of her beloved novel, first published in 1960, “To Kill a Mockingbird” to Broadway’s Shubert Theater, slated to premiere on Nov. 1. Of course many remember the 1962 film adaptation starring Gregory Peck as Atticus Finch, a role for which he won an Academy Award.
Sorkin, whose successful first play “A Few Good Men” later became an even more celebrated film, is often credited with the creation of iconic television shows — “Sports Night,” with its glib repartee, hidden literary references, and complicated characters, and especially the much praised “The West Wing,” the continuing saga of the idealistic, yet flawed President Bartlett and his equally committed close-knit staff — whose content is sometimes said to reflect the Jewish concern for social justice. One of the show’s two Jewish characters, Toby Ziegler, the White House communications director and the Brooklyn-born son of a Russian Jewish mobster, was among its most memorable.
Trusting Sorkin, who like Lee, had a father who practiced law, the late Southern writer had given her permission to him to write the play, but her estate had judged his treatment of “Mockingbird” to be too far afield from the original book. Little has been revealed about the changes that were contested, but Sorkin has noted that its protagonist, the dignified attorney Atticus Finch, who bravely defends an African-American man on trial for rape in the Jim Crow South, undergoes a transformation, to ultimately realize and act on his ethical decision, a change from Lee’s reverent, albeit one-dimensional portrayal. Sorkin’s intent in endowing Atticus with more human qualities will provide contemporary audiences with opportunity for empathy.
Cheryl Kempler is an art and music specialist who works in the B'nai B'rith International Curatorial Office and writes about history and Jewish culture for B’nai B’rith Magazine. To view some of her additional content, click here.
This week, United States sanctions that were lifted after the signing of the 2015 agreement on Iran’s nuclear program began to be reimposed following the Trump administration’s withdrawal from the deal, whose other signatories were Britain, France, Germany, Russia, China and the European Union. With saber-rattling renewed between Tehran and Washington — but economic stress in Iran prompting some Iranians, if not yet their leadership, to consider President Trump’s offer to negotiate with “no preconditions” — a review of the original deal’s terms and pitfalls is in order.
The 2015 agreement required Iran to give up and limit or suspend a substantial part of its nuclear material and activity: Iran was obligated to eliminate roughly 97 percent of its uranium stockpile, dismantle and put under seal two-thirds of its centrifuges, cap uranium enrichment at levels considerably below weapons grade and remove the core of its plutonium reactor. The deal also required Iran to accept extensive monitoring by the International Atomic Energy Agency (IAEA), and it required Iran to pledge never to obtain a nuclear weapon.
But, of course, the deal was very far from air-tight:
While the IAEA has reported finding no evidence of major Iranian noncompliance with the deal thus far, Tehran has a long record of able deception and of violating commitments — as reconfirmed in the extensive intelligence material recently made public by Israeli Prime Minister Netanyahu, refuting Iran’s claim that its supreme leader forbade outright any pursuit of nuclear weaponry.
One significant and underreported reality about the U.S. pullout from the deal is that it reflected, and solidified, growing Arab-Israeli alignment focused on containing the Iranian threat. This, if nothing else, is a silver lining to the Iranian problem, and the U.S. is a critical partner in encouraging Arab-Israeli reconciliation and cooperation.
At the same time, does the potential unraveling of the nuclear deal help or hurt the most extreme elements in Iran? It isn’t easy to say. The hardline Iranian Revolutionary Guards Corps, which maintains significant power in Iran’s economy, finds ways to benefit from especially difficult times, and the nuclear deal was associated with the relative “moderates” in Iran. At the same time, economic strain in Iran builds pressure against the regime — as seen in the most recent popular protests calling for an end to corruption and an end to the foreign adventurism that has made Iran the world’s leading state-sponsor of terror.
Global observers continue to assess the initial U.S. nuclear talks this year with North Korea. How are those negotiations influencing, and also being influenced by, the Iran experience? Iran has told North Korea that it can’t trust the U.S. to stay in a deal — though American firmness on Iran had at least set a high bar for the North Korean process. On the other hand, North Korea, unlike Iran, is already known to have nuclear weaponry. Will Iran be tempted to follow Pyongyang’s lead in engaging in new talks, or, prioritizing its saving of face, will it refuse to renegotiate the deal of 2015?
In the meantime, primary focus has been on the response by European allies to the U.S. withdrawal. While the Europeans became politically and economically wedded to the deal — and have already now been reeling over separate disagreements with the U.S. over the Paris climate accord, free trade agreements, tariffs, and NATO and other coalitions — European government officials have started acknowledging that it will be difficult to maintain the deal without American participation, since European companies will not want to lose access to the U.S. market by violating Washington’s reimposed sanctions on Iran.
If, in fact, Europe is unable to preserve the economic incentives needed to keep the Iranians themselves in the nuclear agreement, and it collapses, the question is: what happens next? Russia and China would likely veto attempts to reinstate U.N. sanctions. Iran, perhaps just short of provoking outright war, will almost surely make a point of ramping up nuclear activity. Iran will also continue to want to extract a price from Israel for the U.S. pullout —just as it and its proxies such as Hezbollah are already keen to undermine Arab-Israeli partnership and to recoup popular credibility among Arabs, lost in the bloody sectarian war in Syria, by again attacking Israel. And Israel, for its part, has made clear that it will act against the build-up of Iranian military positions in Syria to match those it established in Lebanon along the border with Israel. Russia has reportedly signaled that it will help maintain distance between the Iranians and Israel’s boundaries, although both Russia and Iran have served as critical allies preserving the rule of Bashar al-Assad in Syria.
Only time will tell whether a more dependable, comprehensive and lasting resolution of Iranian nuclear and other destabilizing activities will be achieved. However, to achieve it, common purpose will be needed. If such commonality can be reached by many Arabs and Israelis, it should be between the U.S. and Europe, as well as India, Japan and others who are being pressed to wean themselves off of Iranian oil. No less, commonality can and must be reached between Republicans and Democrats, who long shared a bipartisan recognition that the Iranian threat is an existential one for indispensable allies of the United States.
David J. Michaels is Director of United Nations and Intercommunal Affairs at B'nai B'rith International, where he began working in 2004 as Special Assistant to the Executive Vice President. A Wexner Fellow/Davidson Scholar, and past winner of the Young Professional Award of the Jewish Communal Service Association of North America, he holds degrees from Yale and Yeshiva University. Click here to view more of his content.
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