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Health Care Ruling: No Country for Old Men

Today I have the pleasure of reporting that I’ve revised the post I had prepared in anticipation of a Supreme Court decision striking down all or part of the Patient Protection Affordable Care Act.

Protest signs: Healthcare not Warfare

Code Pink Pro-Healthcare Rally (Photo: CODEPINK Women For Peace / Flickr)

Early word on this is that the individual mandate’s constitutionality has been struck down but the provision of the tax penalty that creates the incentive to purchase insurance has been upheld.  The other major piece in this is the constitutionality of the State’s requirement to expand Medicaid.  They now have the option to reject that requirement without federal Medicaid funding withheld as a penalty, essentially upholding States’ Rights. We’ll have to see how this all plays out on the ground.


In a big surprise move, Chief Justice Roberts wrote the majority opinion that upholds ACA.   Roberts writes, “Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use.”

This was a standard 5 to 4 right v. left ruling but not the type we would expect. Today the United States Supreme Court has ruled unpredictably in support of the constitutionality of the Patient Protection Affordable Care Act.   The two surprise opinions here were Chief Justice Roberts siding with the majority and Kennedy joining the dissenting opinion which apparently holds that health care is a privilege and not the right that the rest of the world believes it is.

In their dissent, four old men in black stuck in 1950 American exceptionalism attempted to strike down access to health care coverage for 14million seniors and 6 million citizens under the age of 26, and another 30 some million Americans previously without coverage.  As a result, based on a new report from the National Center for Health Statistics, health coverage for a potential 46.3 million persons of all ages is now uncertain.  That’s nearly one in five Americans.

Clearly, a 21st century forward looking progressive America is no country for old men.

One of them is Justice Scalia who writes along with the other 3 dissenting Justices:  “The Court must not impose risks unintended by Congress or produce legislation Congress may have lacked the support to enact.”   What about the risk of an untreated preexisting condition?

We would have predicted Scalia’s view as a case of pre-existing stunad that was hinted at in his comments during the opening March arguments. It was also revealed in his new book when he said that “Wickard ‘expanded the Commerce Clause beyond all reason  ‘by deciding that ‘a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.’   Although the “consumer” metaphor does not apply to the necessary “purchase” of health care, the result is clearly an impact on interstate commerce, broccoli notwithstanding.

For Scalia, this is a sharp reversal of opinion.  In an opinion written by Scalia in 2005 in Gonzalez v. Raich, he and Justice Anthony Kennedy strayed from the court’s conservative wing to issue one of the broadest declarations of federal power under the Commerce Clause: a 6-3 ruling that Congress may ban a medical-marijuana patient from growing cannabis for personal use, even in California where it’s legal.  Of course when the facts of that case are viewed, to wit, growing marijuana, his self-serving vote was not all that surprising.

Is today’s ruling consistent with popular opinion?  Yes and no.

A quarter of all respondents in a recent Kaiser Public Opinion poll report “they have had problems paying medical bills in the past year and six in ten say they have cut corners to avoid health care costs. The survey also finds that health care can be a point of stress as many Americans report being worried about losing their health insurance or not being able to afford needed care.”

Although the precise share of the public with a favorable or unfavorable view of the individual mandate varies slightly between polls, each survey finds that overall sentiment is about two to one in opposition to the mandate according to Kaiser. But when the various elements of the ACA are put before the public, they are supported.

Also at issue has been the constitutionality expanding Medicaid. States, in exchange for additional federal funding, must cover nearly all non-Medicare-eligible adults at or below 133 percent of the federal poverty level. In 2012, the cutoffs are $14,856 for an individual and $30,657 for a family of four. As of today, they will have an option of declining.  The logistics are still uncertain on this.

While the new law’s provisions were not due to be fully implemented until 2014, it has already begun to make a difference by improving access to higher quality care, addressing rising health care costs, and adding to our overall health as a civilized nation.

After all is said and done, here’s the real issue: While 50 million Americans remain uninsured or under various limitations regarding access, many others struggle to maintain coverage.  Many Americans with a pre-existing medical condition that includes asthma, heart disease, previous injuries, and cancer may now have access to necessary, affordable care.

The Affordable Care Act closes the Medicare Part D prescription drug coverage gap, also known as the “donut hole.” In its first full year ACA nearly 4 million seniors saved more than $2.1 billion for nearly 4 million senior citizens on prescription drugs—an average of $604 per person.

The view has existed among some that President Obama “should have waited for a more propitious moment, at the very least.”  Apparently a century isn’t quite long enough.

Many of us thought that in the event that the law is struck down, it would lead to a new push for universal single-payer coverage.  That very real possibility still exists. Now that the law has been upheld in historic glory it can provide the basis for that to possibility to build on.  Some would argue that “Once it has been promised, even enacted into law, it will be very hard to take it back.”

I’ve always viewed universal health care as one of several essential human rights and an issue of distributive justice far more than strictly economic or even legal.  It stems from the “original position” of John Rawls and the social contract in which we’ve decided to provide for each other through various structural means.  Denial of health care, regardless of the form that denial takes is a direct attack on human dignity and “original principles.”

According to Illyse Hogue, “Core Christian values that are currently on trial at the Supreme Court”.     She points out that when ACA was passed in 2010, the United States ranked last in a study on healthcare at the time.  We continue to spend twice as much for care than our fellow industrialized nations.

But it’s far more than simply a matter of monetary cost.  Here’s the real key to Hogue’s comments and the moral basis for expanding coverage: “So many of our neighbors live in terror that a single unexpected calamity will drive their family into bankruptcy spurred by emergency medical bills. Now…..those fellow Americans can add a new fear to their list: that a Conservative Catholic Supreme Court Justice will lead the charge to let them die.”

The best guideline for assessing today’s outcome as well as future related progress in health care should be the Constitution of the World Health Organization: “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being…”

Significantly, the National Health Service in Great Britain was established by minister of health, Aneurin Bevan, on July 5, 1948 based on the first, or original, position that health care should be available to all, regardless of ability to pay.   Up to today this has not been the case with us Yanks.  Our personal health might not have been all that great in some cases, but hey, our personal freedom has remained intact.

What a difference a couple thousand miles of ocean and a tea party make.  But today, thanks to an expanding insurance pool, the pond is shrinking.

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Thomas P. Davis

Thomas P. Davis

I'm a freelance writer based in New Jersey. I've been writing about public issues for 10 years.