Crucial Insurance Battle Underway In Texas

by Molly Ivins

Unless a miracle occurs -- like a whole lot of Texans giving up time on a football Saturday to go vote on a bunch of boring propositions -- Sept. 13 will see the end of the open courts provision of the Texas Constitution. Cleverly disguised a cap on medical malpractice awards, Proposition 12 is a direct assault on an independent judiciary.

A hundred years ago, Justice Moody of the U.S. Supreme Court wrote: "The right to sue and defend in the courts is the alternative to force. In an organized society, it is the right conservative of all other rights and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship." The sickening irony is that we will vote to do this to ourselves, under the impression that we're helping doctors contain the cost of medical malpractice insurance.

Why the docs let themselves get conned into fronting for the insurance companies on this one is beyond me, but that's what has happened. Friendly Doctor Welbys are all over the airwaves in ads telling us how they're being driven out of business by the high cost of medical malpractice insurance and the only way they'll be able to continue delivering babies and curing measles is if we vote for this abomination. Of course the poor docs are getting screwed by the insurance companies -- it's awful. But instead of regulating insurance rates, our bought-and-paid-for legislature went after our legal rights, instead.

Don't let anybody tell you Prop. 12 is just about med-mal, just a little cap on jury awards in this one area. This is the whole ball of wax. This thing permanently alters the separation of power between the judicial and legislative branches.

For 150 years, the Texas Constitution has guaranteed that every person who has suffered some sort of injury shall have remedy by due course of law. Prop. 12 limits the right to sue makers of dangerous supplements like Fen-fen, makers of unsafe tires and exploding gas tanks, polluters, drunk drivers, manufacturers of unsafe medical devices like the Dalkon Shield and corporate crooks. People like Ken Lay and Jeff Skillings of Enron, who destroyed the life savings of thousands of people, get legal protection under Prop. 12. This is the Polluters and Predators Protection Act. And it doesn't even do anything to discourage frivolous lawsuits.

We aren't going to get any insurance-cost rollbacks out of this. One major insurance company already has approval for a 30 percent increase from the state Insurance Department. They're raising rates now so they can claim a "rollback" next year -- you can count on maybe a big 3 percent "drop." I can't even call the people who vote for this "suckers" because I know how much money the big special interests are spending to get this thing passed.

For a comprehensive and beautifully researched look at just who bought the legislature and for what purpose, I highly recommend the Aug. 29 issue of The Texas Observer, with its cover article, "Hogwild: How a small group of politicians and corporations bought themselves a legislature."

This case study of the Texas Association of Business and its tools -- including Tom DeLay, Goodhair Perry and Speaker Tom Craddick -- is the best explanation of what is happening in Texas anyone has written for years.

Meanwhile, back at the Capitol, Goodhair and the boys don't even have a map ready yet. Lt. Gov. Dewhurst, who sensibly said at the beginning of the regular session that the state has a lot more important issues than redistricting to worry about, has now come around to the partisan Republican lockstep position. Wonder what they promised him?

I'm not even sure this is a smart deal from their viewpoint. The fact is, we would already have a majority-Republican congressional delegation if it weren't for one thing -- Republicans. It's Republicans who cross the ballot in those West Texas districts to vote for the old Democrats they like. And they are not happy campers about this insane power grab.

All of you people in other states better watch out -- it could happen to you, too. As State Sen. Gonzalo Barrientos observed, "These people don't want to govern, they want to rule."