Like all states, California has licensed medical centers of every kind. One particular type, often known as a “crisis pregnancy center,” provides pregnancy-related services with the goal of helping women to make choices other than abortion. Based on opposition to these centers, the California legislature enacted a law requiring licensed clinics “whose primary purpose is providing family planning or pregnancy-related services” to deliver to each of their clients the following message: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.” But the law also creates an exception for clinics that actually enroll clients in these programs—so, in effect, it applies only to clinics that oppose the very program they must advertise.

Several of these crisis pregnancy centers sued to block the law, arguing that it violated their First Amendment rights by forcing them to express a message to which they are opposed. But the U.S. Court of Appeals for the Ninth Circuit upheld the law, holding that it regulates only “professional speech” and therefore should be reviewed under a more deferential standard, rather than the normal strict judicial scrutiny that applies to laws compelling speech. The centers have petitioned the Supreme Court to review their case; Cato has filed a brief supporting that petition.

In our brief, we explain that the definition of “professional speech” that the Ninth Circuit applied is dangerously overbroad. Regulation of patient-physician speech is justified by the notion that when doctors speak to their patients, they assume a special obligation to communicate their expertise fully and truthfully. These regulations protect patients, who can’t be expected to have the same specialized knowledge as their medical providers. But they can’t be extended beyond that bright line of specialized knowledge: if a state can force its doctors to read a pre-written advertisement to their patients, it can force them to say anything the state wants.

Compelling licensed professionals to speak the government’s message is dangerous for precisely the reasons compelled speech is always dangerous. Most importantly, it allows the government to impermissibly put its thumb on the scale in a social debate, by conscripting individuals to help spread a particular message. (Tellingly, California has no equivalent law forcing clinics to advertise adoption agencies or other choices.)

Further, the law burdens the conscience of speakers, by forcing them to promote programs that they morally oppose. This is precisely the invasion of “the sphere of intellect and spirit” that Justice Robert Jackson warned of 70 years ago, in the first Supreme Court case to strike down a compelled-speech law, West Virginia Board of Education v. Barnette (1943). The Court should review National Institute of Family & Life Advocates v. Becerra, reject the Ninth Circuit’s dangerous “professional speech” doctrine, and apply the lesson of Barnette in striking down this law.

In a recent op-ed at The Federalist, I argued Donald Trump has serious leverage over both Republicans and Democrats in Congress when it comes to ObamaCare:

President Trump can force Republicans and Democrats back to the negotiating table, and get a bill that keeps his promises to fully repeal Obamacare and to protect people with preexisting conditions…by simply undoing the illegal actions by his predecessor, which he has also already promised to do.

One of those illegal actions is the illegal exemption from ObamaCare that President Barack Obama granted members of Congress and their staffs.

Another is the illegal “cost-sharing” subsidies President Obama began issuing — and that President Trump is still issuing — to insurers participating in ObamaCare’s Exchanges. In a case where the House of Representatives challenged the payments, a federal judge ruled that issuing those payments “violates the Constitution” and ordered them to stop, pending appeal. The Obama administration was pursuing an appeal, but the Trump administration has not indicated whether it would continue to appeal that ruling or enforce the judge’s order. Trump must do one or the other.

Two of President Trump’s cabinet picks have practically forced his hand on this issue.

When the federal district-court judge issued her ruling striking down the cost-sharing subsidy payments, Health and Human Services Secretary Tom Price was a Republican member of Congress. He issued a statement endorsing the ruling:

Today, Congressman Tom Price, M.D. issued the following statement after a federal judge ruled in favor of House Republicans’ lawsuit against Obamacare, saying that the Administration does not have the power to spend money on “cost sharing reduction payments” to insurers without an appropriation from Congress:

“The ruling proves a momentous victory for the rule of law and against the Obama Administration’s overreach of Constitutional authority,” said Congressman Tom Price, M.D. “This historic decision defies the Obama’s Administration’s ask that the courts disregard the letter of the law and reasserts Congress’s power of the purse as defined by our nation’s founders in Article One of the Constitution.”

“In recent weeks, we’ve seen insurers announce that they will exit the exchange markets in 2017, further deteriorating patients’ access and choice to health care plans that they want. This is yet again proof that Obamacare is on an unsustainable path, and House Republicans must remain committed to repealing and replacing this law. As a member of the Health Care Task Force, I’m honored to be working with my colleagues to advance positive, patient-centered solutions to the challenges in our health care system.”

Price has made clear his view that Congress did not appropriate funding for these payments, and that continuing to make them would constitute executive overreach and violate the rule of law. If President Trump chooses to appeal the lower-court ruling, he would put Price in a situation where he would have to help implement a policy that he considers unconstitutional. Price arguably would have to resign.

Yesterday, Trump’s attorney general Jeff Sessions expressed his view that the payments are unconstitutional and that the lawsuit challenging those payments “has validity to it.” If Trump chooses to appeal the lower-court ruling, Sessions would be the guy who carries out that appeal. It would be…awkward for him to defend a policy he believes to be unconstitutional. If Trump asks him to do so, Sessions too may have to resign.

Continuing President Obama’s illegal cost-sharing reduction payments could cost President Trump two cabinet officials.

Who pays for women’s mandated paid leave and other women-centric labor policies? At a superficial level, it depends on who you ask. Proposals for federal mandated paid leave and child care laws run the gamut, and advocates identify government, taxpayers, or private companies as backers. Unfortunately, those answers reveal a glaring oversight: directly or indirectly, women will pay.

Economists of a variety of ideological persuasions agree, including Larry Summers, former Director of the National Economic Council for President Obama. In 1989, Summers wrote “Some Simple Economics of Mandated Benefits” where he asserted that “The expected cost of mandated benefits is greater for women than it is for men.”

What does that mean? In his paper, Summers concludes that women will be paid less or not hired as a result of mandated benefits. In his words, “If wages could freely adjust, these differences in expected benefit costs would be offset by differences in wages.” And if not? “[T]here will be efficiency consequences as employers seek to hire workers with lower benefit costs.”

In the real world, Summers’ predictions seem to be borne out. Jonathan Gruber, an MIT economist historically unopposed to economic intervention, authored research that “consistently suggest[ed]” women’s wages are reduced to reflect the cost of benefit mandates in states that try them. Gruber estimated that the shift in cost is around “the order of 100 percent.”

And more recent research indicates women “pay” for mandated paid leave and job protections in other ways.^[1] According to Jenna Stearns, wage and job entitlements led fewer women to hold management positions and promotion-track jobs in Great Britain. Her research provides “evidence that access to job-protected paid maternity leave can actually exacerbate gender inequality among highly educated workers” [emphasis added].

Although proponents rarely mention it, the U.S. policy status quo holds some counterintuitive advantages. A 2015 study comparing the U.S. against other countries suggests that women in the U.S. are more likely to have full time jobs and work as managers or professionals. That difference is attributed to a lack of maternal wage and job entitlement policies.

Importantly, if the U.S. did move toward paid leave or job entitlements for women, the loss of wages and/​or opportunities during childbearing-aged years would not be one-time penalties. Being passed over for a job, involuntarily mommy-tracked, or having wages slashed to pay for prospective benefits can have impacts that last a professional lifetime.

These points aren’t mentioned in the current debate, but they should be. As Summers concludes, “There is no sense in which benefits become ‘free’ just because the government mandates employers offer them to workers.” Intellectual honesty requires we don’t ignore this inconvenient, but important fact: paid leave means women pay.

A new Reuters/​Ipsos poll examines how Donald Trump impacts Democrats’ and Republicans’ conventional public policy opinions. The survey asked Americans to evaluate a series of questions related to statements Donald Trump has made on public policy. However, the poll only told half of the respondents that Trump had made the statement, the other half were simply asked if they agreed or disagreed with the position. Sure enough, the “Trump effect” turned Democrats’ away from single-payer health care and got Republicans somewhat less convinced of their opposition.

The survey asked respondents how much they agreed or disagreed with the following statement made by Donald Trump: “When it comes to health care, the government should take care of everybody and the government should pay for it.” However, only half the sample were told Trump made the statement, the other half were simply asked if they agreed or disagreed that government should pay for everyone’s healthcare.

At first, 68% of Democrats agreed that government should pay for everybody’s healthcare. However, this share drops 21 points to 47% among Democrats who were told Trump thought government should pay for everyone’s healthcare. Republicans’ support increased, but by 6 points, from 33% to 39%, among those who were told Trump made the statement. Initially, 61% of Republicans disagreed with the idea of single-payer, but opposition declined to 50% among those who learned Trump favored it.

The survey also found that Trump could make Democrats more supportive of the idea of American exceptionalism and turn Republicans against it. At first, a majority (53%) of Democrats agreed that “American exceptionalism—the idea that the USA holds a unique place in history—is insulting to people from other countries.” However, results flip among Democrats who were told that Trump made this statement. Instead, a majority (54%) come to disagree with the statement that American exceptionalism is insulting to people from other countries. 

Republicans operated in reverse. A majority (53%) of Republicans at first disagreed that the idea of American exceptionalism is insulting to people from other countries. However, a plurality (46%) came to agree with the statement when they heard that Trump believes American exceptionalism is insulting abroad.

The survey found several more instances of the “Trump effect” among partisans. Notably, majorities of both Democrats (69%) and Republicans (56%) agreed that “government officials should be forbidden from financially benefitting from their position.” However, when Trump was explicitly identified, only 23% of Republicans believed that “Donald Trump should be forbidden from financially benefiting from his position”—a shift of 33 points.

It’s important to keep in mind that Democratic and Republican partisans may have differently interpreted the statements mentioning Trump. For instance, perhaps Republicans assume Trump benefiting financially from his position means his brand may benefit, while Democrats may think it means that he would use his power to offer special preferences to his businesses. Similarly, Trump may not have dissuaded Democrats from supporting a single-payer health care system. Instead, Democrats may wish government to manage the health care system unless Trump is at the helm of the federal government. Thus, the “Trump effect” might be due to different interpretations of the statement’s meaning.

In either case, Trump remains a polarizing force in American politics. He may sour Democrats on ideas they have historically favored and warm Republicans to ideas they’ve long opposed. As Howard House, a Democrat from Jacksonville, Florida, put it: “I’m basically in disagreement with everything [Trump] says. I’ve almost closed my mind to the guy.” Conversely, Susie Steward from Fort Worth Texas explained, “[Trump] is a very intelligent man, He’s proved himself to be one hell of a manager. A builder. I think he has the business sense to do what’s best for the country.” 

This suggests that voters like Howard and Susie tend not to evaluate policy ideas based the policy’s merits, but rather on the association they make between the policy and Donald Trump. Policies like health care and tax reform that become associated with Trump may become forever tainted in the minds of some Democrats. Conversely, some Republicans may come to accept policies out of line with GOP orthodoxy dependent on their level of confidence in Donald Trump. 

Last week, I highlighted how the DC authorities will be “among [the] first in [the] nation to require child-care workers to get college degrees.” Basic economics tells us this will restrict the supply of potential careers, raise prices, and, I fear, over time lead to a demand for more subsidies to “make child care more affordable.”

There was another possibility I did not explore. Today’s Washington Post suggests that subsidizing supply is on the agenda instead:

Mayor Muriel E. Bowser (D) has offered a $15 million proposal to address the acute shortage of licensed child-care options for the city’s infants and toddlers, an issue that has gained urgency amid a baby boom. Her 2018 budget includes competitive grants to help high-quality providers expand or open centers and would also make space available for child-care facilities in three city-owned or leased buildings.

A basic principle that policymakers should follow is “first do no harm.” DC has a general affordability and availability problem, which is screaming “restricted supply.” But now the DC authorities are having to subsidize supply in part to overcome the reductions in supply caused by their own policies. Watch for calls for more demand-side support next.

The result? More and more government control over this crucial economic, social, and familial aspect of life.

Here’s a joke: a Republican, a Democrat, the director of a left-wing think tank, three AEI scholars, and Ivanka Trump walk into a bar. What do they agree on?

The answer: they want federally mandated paid leave or child care, effective immediately.

You aren’t laughing? Well, you’re in good company–this joke isn’t funny, especially for women. Paid leave and child care policies have been tried in a variety of contexts, and to advocates’ dismay, the consequences are not universally beneficial to women.

As an example, take Chile, which in 2009 mandated employer-provided childcare for working moms. According to recent research, women employed by affected Chilean firms were paid between 9 and 20 percent lower wages than comparable female Chilean workers following policy implementation.

And the impact of women’s labor policies is arguably worse in Spain, which is struggling with the fallout of a 1999 policy that aims to protect women with children against layoffs ^[1] but in practice harms them: a natural experiment shows that after policy implementation, Spanish employers were less likely to hire childbearing-aged women, less likely to promote child-bearing-aged women, and more likely to lay child-bearing-aged women off.

Although Spain and especially Chile are different in myriad ways that limit extrapolation to a U.S. context, it’s hard to dismiss home-grown evidence. Though the United States doesn’t have a federally-mandated paid leave policy, it did enact a federally mandated unpaid leave policy, Family & Medical Leave Act (FMLA), in 1993. And despite FMLA being an accepted part of the modern legislative fabric, the consequences of the policy are not all stellar. Analysis suggests women hired after the policy are five percent more likely to be employed but eight percent less likely to be promoted.

Though the U.S. hasn’t adopted a paid leave mandate, a few states have. Research on policy outcomes in California show female labor force participation rising after implementation of paid leave (maybe good?) and childbearing-aged female unemployment and unemployment duration rising, too (unambiguously bad). This is probably because the mandate made women universally more expensive in employer’s eyes, whether professional women intend to use benefits or not.

So why don’t the Ivankas of the world seem to care about these negative repercussions, at least as much as the imagined benefits of women’s policies? The most gracious interpretation is that modern advocates are uninformed. It could also be that it is inconvenient information.

And although advocates would like to paint a rosy picture, the reality is that some women, perhaps many, would be collateral damage under a federally mandated policy. For negatively affected women, that’s a lot more tragic than it is funny.

[1] This protection is granted if the worker had previously asked for a work-week reduction due to family responsibilities.

House Republican leaders cancelled a vote on the American Health Care Act nearly two weeks ago, after it became clear the measure would not command a majority. The conservative House Freedom Caucus objects that, far from repealing and replacing ObamaCare, the AHCA would make ObamaCare permanent. It would preserve the ObamaCare regulations that are driving premiums higher, causing a race to the bottom in coverage for the sick, and causing insurance markets to collapse. The Congressional Budget Office projects the bill would cause premiums to rise 20 percent above ObamaCare’s already-high premium levels in the first two years, and leave one million more people uninsured than a straight repeal. Oh, and it also reneges on the GOP’s seven-year campaign and pledge to repeal ObamaCare.

The House Freedom Caucus has offered to hold their noses and vote for the AHCA despite several provisions its members dislike, including a likely ineffectual repeal of ObamaCare’s Medicaid expansion, new entitlement spending, and the preservation of most of ObamaCare’s regulations. All they ask is that House leaders agree to repeal the “community rating” price controls and the “essential health benefits” mandate that are the main drivers of ObamaCare’s higher premiums, eroding coverage, and market instability. Repealing those provisions would instantly stabilize insurance markets and cause premiums to plummet for the vast majority of Exchange enrollees and the uninsured.

A collection of House moderates known as the Tuesday Group, meanwhile, has threatened to vote against the AHCA if it repeals community rating. The group has refused even to negotiate with the House Freedom Caucus. One Tuesday Group member recommended to the others, “If that call comes in, just hang up.”

In an attempt to bridge the divide, the White House has proposed to let individual states opt out of certain ObamaCare regulations, including the essential-health-benefits mandate and (presumably) the community-rating price controls. Reportedly, states could apply to the Secretary of Health and Human Services to waive some (but not all) of ObamaCare’s Title I regulations, and the Secretary would have discretion to approve or reject waiver applications based on their compliance with specified metrics, such as premiums and coverage levels. 

What might seem like a fair-minded compromise is anything but. The fact that White House officials are floating this offer means they have reneged on their prior proposal to repeal ObamaCare’s “essential health benefits” mandate nationwide. The current proposal would keep that mandate in place, and make it the default nationwide. That alone makes this “opt out” proposal a step backward for ObamaCare opponents.

Even if the White House were not displaying bad faith, an opt-out provision offers little to ObamaCare opponents. The obstacles to using such a waiver would be so great, it is unlikely any states would be able to exercise it, which would leave ObamaCare’s regulations in place in all 50 states.

Opting-Out Would Be All But Impossible

Under an opt-out, ObamaCare’s regulations—in particular, the community-rating price controls and essential-health-benefits mandate that the House Freedom Caucus has said are the price of their votes—would remain the law in all 50 states. States that do not want those regulations would have to take action (and get federal permission) to roll them back. Federal control would remain the default.

To take advantage of the waiver process, ObamaCare opponents would have to fight, again and again, in state after state, to achieve in each state just a portion of what President Trump and congressional Republicans promised to deliver in all states. Opponents would have to convince both houses of each state legislature (Nebraska excepted), plus the governor, plus the Secretary of HHS to approve the waiver, all while being vastly outspent by insurance companies, hospitals, and other special interests.

If President Trump and congressional Republicans advance an opt-out provision, they will essentially be telling ObamaCare opponents, “Thank you for spending all that money and effort electing us, but we are not going to repeal ObamaCare. Instead, we want you to spend even more money having ObamaCare-repeal fights in all 50 states. And good luck getting state officials to keep a promise they haven’t made, when we won’t even keep the promise we did make.”

(Above: President Donald Trump promised in his “Contract With the American Voter” to deliver legislation that “fully repeals” ObamaCare. It’s a contract, so that’s legally binding, right?)

Given these obstacles and the low likelihood of success, many ObamaCare opponents would decide the waiver option it isn’t worth the effort.

A Provision with a Short Shelf Life

Even if states tried to take advantage of the “opt-out,” states could not possibly enact, submit to the federal government, secure federal approval of, and implement a such waiver in time to stabilize their markets under the withering assault from ObamaCare’s regulations, as modified by the AHCA. So the “opt-out” would not even protect Republicans in willing states from the political backlash against the AHCA.

Even if states went through all those steps in time, the White House’s proposal reportedly would allow states to opt out of guaranteed issue but not ObamaCare’s ban on coverage exclusions for preexisting conditions. In other words, even if a state successfully used a waiver to stabilize their markets, Republicans would come under fire because the waivers would prevents patients with preexisting conditions from getting any coverage, even for illnesses they have not yet acquired.

Like the AHCA itself, an opt-out strategy would thus condemn Republicans to suffer electoral losses because Democrats could reasonably blame ObamaCare’s—and the AHCA’s—premium hikes, lousy coverage, and Exchange instability on Republicans and their supposedly free-market reforms.

Those Republican losses and the concomitant Democratic gains would make states less likely to use the opt-out provision, and would enable Congress to repeal it by slipping a few lines in an omnibus bill as early as 2019. With few states using the option, there would be little objection.

Even if Congress did not repeal the “opt-out” authority, a future HHS secretary could reject state waiver proposals and/​or refuse to renew waivers.

Full Repeal Is Fair to Blue States. An Opt-Out Is Unfair to Red States.

An opt-out approach is also inequitable, for two reasons. States that opt out of ObamaCare’s regulations would end up subsidizing states that did not, which itself would create a disincentive for states to opt out. And while full repeal would not disadvantage states that want ObamaCare-style regulations, an opt-out approach would disadvantage states that don’t.

First, even if some states do opt out of ObamaCare’s regulations, those regulations would continue to cause instability in states that don’t opt out. That instability would likely lead Congress to bail out states where those regulations still have force. Yet all states would have to pay for those bailouts, including states that opted out of the regulations. In other words, states that made the right decision (to opt out of ObamaCare’s regulations) would have to pay to repair the damage done by states that made the wrong decision (i.e., not to opt out). This inevitable and inequitable dynamic would itself discourage states from opting out.

Second, under either full repeal or the House Freedom Caucus’ offer, states that have enacted community-rating price controls and benefit mandates themselves could keep those regulations without taking any further action. An opt-out, by contrast, would require states who don’t want those regulations to take action to remove them.

Prior to ObamaCare, for example, many states had imposed community-rating price controls on their individual and small-employer markets (see graphics below).

Under either full repeal or the House Freedom Caucus’ stipulation that Congress repeal ObamaCare’s community-rating price controls and essential-health-benefits mandate, any regulations that states have enacted would still have force. Members of Congress from states like Maine, Massachusetts, Minnesota, New Jersey, New York, and Vermont that have enacted community rating thus cannot claim they must vote against full repeal to preserve community-rating for their constituents. Both full repeal and the House Freedom Caucus’ proffer are therefore equitable, because they would let each state revert to the regulatory environment they have chosen, without taking any action.

An opt-out, by contrast, would impose community-rating and other regulations on states that do not want them, and force those states to take action to remove them. Crudely put, an opt-out is an attempt by blue states, at no benefit to themselves, to impose their will on red states.

Full repeal and the House Freedom Caucus position are an opt-in. They would give each state what it wants, because the default under an opt-in is freedom and federalism.

Conclusion

Congress should repeal all of ObamaCare’s regulations. States that then want to impose those regulations on their own citizens would have the power to do so.

The White House’s “opt-out” proposal is unworkable, and therefore gives ObamaCare opponents next to nothing. Indeed, it is an admission that the AHCA is not a repeal bill. And not only does the White House’s “opt-out” proposal not move the AHCA in the direction of full repeal, the White House’s decision to revoke its offer to repeal the “essential health benefits” mandate nationwide means this proposal moves the farther away from full repeal.

One silver lining is that this proposal implicitly concedes that community rating is not sacrosanct, and that the states rather than the federal government should decide whether those regulations apply.

Those concessions, the White House’s reneging on “essential health benefits,” and the fact that full repeal would have little impact on states that have similar regulations on the books, gives the ObamaCare opponents leverage to push President Trump to do what he should have been doing all along: push moderates and Democrats to repeal community rating, essential health benefits, and more.

If dismissing this White House proposal out of hand is not possible, the House Freedom Caucus could propose a counteroffer: that the waiver process allow states to opt out of all of Title I, including the subsidies; that the Secretary of HHS have no discretion to reject state opt-out proposals; and that when a state opts out, residents of all other states may purchase insurance licensed by that state. Such an approach would effectively repeal Title I in every state.

Absent those changes, this proposal leaves ObamaCare opponents with less than they had before.