Health reform is in the hands of the Supreme Court

I am often fascinated by the simplified dichotomies and ironies of the health care discussion. Some argue that the individual mandate infringes on individual rights yet one could argue that tying health insurance to a particular employer is in itself a violation of individual liberty.  When Patrick Henry stated, “Give me Liberty or Give me Death” in protest of the Stamp Act of 1775, he helped swing the assembly (including George Washington and Thomas Jefferson) in favor of revolution.  Health reform is nothing short of a revolution to protect the lives and livelihoods of Americans.  What Americans should fear is not the individual mandate but the potential for bankruptcy or death that the lack of health insurance confers. This is exactly the kind of decision that a patient of mine had to make.

Debra (not her real name) had Type 1 diabetes since she was a teenager and had managed it as best as she could most of her life.  She was a 43 year-old single mother who had outlived her doctors’ expectations.  I met Debra late one night as a resident while on-call in the intensive care unit because she was refusing cardiac surgery that would save her life. She had been transferred emergently from a different hospital where she had been admitted with dramatic changes to her EKG. Cardiac catheterization showed that all of the blood vessels that supply her heart with oxygen were blocked with changes not atypical for patients with long-standing diabetes.  There was no question that she needed emergent cardiac surgery otherwise the muscle tissue of her heart would die without oxygen and so would Debra. Debra was refusing surgery. As I walked to meet Debra, my initial assumption was that I would need to get the Psychiatry team involved because who in their right mind would refuse a surgery that would save her life?

Debra was not crazy.  She was a mother of a fourteen year-old, divorced but still friendly with her husband. She owned her home and knew that if she underwent surgery she would lose it because she had no health insurance, despite her diabetes she was not disabled, and she was too young to qualify for Medicare.  If she lost her home, she wasn’t sure where her and her daughter would live. The prospect of making her daughter homeless and going into deep debt seemed more sinister than declining surgery and succumbing to her disease.  She was trying to make a rational decision in a completely irrational health care system.

Ultimately, Debra’s daughter and ex-husband convinced her to undergo surgery and the hospital worked out an agreement to pay for the surgery and medical care for six months after so that she wouldn’t lose her home.  Debra lived, her surgery went well, she kept her home, and her daughter didn’t lose her mother. In my mind, Debra’s resistance was not altogether different from Patrick Henry’s.  Her outcry was “Give me Health or give me Death!”  But she and patients like her shouldn’t have to make those decisions.

To get a sense of the potential impact of health care reform on people like Debra in our communities, take a look at this map developed by the Kaiser Family Foundation that shows the estimates of how many people across different geographic areas will benefit from the expanded coverage under the Affordable Care Act.  In my neighborhood in Berkeley, California, as much as 12–25% of the non-elderly population will benefit.  Take a look at where you work or live to see what the potential impact on your community might be of expanded coverage of the Affordable Care Act. Do you have neighbors or patients that will benefit?

As the Supreme Court prepares to hear arguments regarding the constitutionality of the health care law, it’s important to recognize how unprecedented and unique these hearings are but also how they bring into relief fundamental questions about what rights our government should protect.

The Supreme Court will be dedicating three days of hearings (a total of six hours), unusual given that most cases that come before the court are given only 60 minutes. The hearings will be divided over 3 days and have several questions to address.  The first is whether or not a lawsuit can be brought against the health insurance law at this time. According to the Anti-Injunction Act of 1867, an individual resisting the assessment of a tax (in this case, the penalty for not having health insurance imposed by the individual mandate), must pay the tax first and then file a claim for refund.  Under this law, courts will not hear a lawsuit or stop the government from assessing the tax before the government collects it but will do so after the internal revenue service either denies a claim for a refund or six months have passed. On March 26th, the Supreme Court will hear testimony on whether the individual mandate falls under this provision or whether proceedings on its constitutionality can move forward.  If the Supreme Court rules that the individual mandate is subject to the Anti-Injunction Act, then challenges will not be heard until April 15, 2015, after penalties become due.

If the Supreme Court decides to move forward, arguments regarding the constitutionality of the individual mandate will be heard on March 27th.  The individual mandate is being challenged by 26 states and “private parties.”  The lower courts have issued conflicting decisions with some upholding it, some striking it down, and others deferring.  The federal government argues that Congress has authority to enact the individual mandate (and the federal government to enforce it) based on its powers to regulate commerce and to tax. They also argue that the law aims to address an urgent national problem that is economic in nature (which Supreme Court precedents support).  To get a sense of the scope of this economic problem take a look at the US Debt Clock.

If the Supreme Court deems the individual mandate of the health care law unconstitutional then hearings on March 28th will address the fate of the other provisions of the health care law. Here again, the government plans to argue that if the individual mandate is deemed unconstitutional than most of the law should survive. The counsel representing the 26 states who brought the suit disagrees and will argue that the entire law should be struck down.

It’s important to remember that without the Affordable Care Act, it would be nearly impossible for patients like Debra to find affordable health insurance coverage.  How is that not an infringement of individual rights? Doesn’t the lack of affordable, accessible health insurance stifle productivity, innovation, competition, and individual liberty more so than any tax could? Doesn’t the risk of bankruptcy due to health care costs, not just for us as individuals but for us as a country, obligate us to move forward with health care reform?

For some of us, the individual mandate is itself a compromise because we view health not as a luxury or commodity to be traded on the free market but as a fundamental right that should be protected by our government.  The Affordable Care Act is a first, positive step in that direction.  Regardless of what the Supreme Court decides, it will be a historic week for health. The federal government argues that Congress was authorized to enact the individual mandate under two provisions of Article I, Section 8 of the Constitution — its power to regulate commerce and its power to tax. The leading Supreme Court precedents support the mandate, too, the government says, because the health care law addresses a pressing national problem that is economic in nature.Opponents of the law say that the requirement to buy a product or service is unprecedented, regulates inactivity rather than activity and would allow Congress essentially unlimited power to intrude on individual freedom. They say the government cannot articulate a principle that would limit its power were the law upheld.

Teeb Al-Samarrai is a physician and epidemiologist. This post originally appeared on Progress Notes.

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  • http://onhealthtech.blogspot.com Margalit Gur-Arie

    The health reform law should be able to move forward without the individual mandate, just like the war on terrorist organizations should proceed without water-boarding and  illegal imprisonment, because the end rarely justifies the means.

    Congress should not have the power to force The People to relinquish one inalienable right in return for upholding another.

    • http://www.facebook.com/people/Allison-Nelson/13959063 Allison Nelson

       Without the income from healthy people, they wouldn’t be able to pay for the unhealthy. The mandate is THE reason affordable insurance can be offered to those who have been denied insurance. It is the cost of the plan. Nothing is free…

      • http://onhealthtech.blogspot.com Margalit Gur-Arie

         There are constitutional tools that will achieve the same result. A plain old tax (not a “penalty”) comes immediately to mind.

        • Kathleen Ogle

          Yeah, right, a tax. What do you think the odds are of a new tax being introduced and surviving votes in today’s Congress? Less than Zero, perhaps? “Tax” is now considered as loathsome a word as “liberal”. 

  • Anonymous

    In an effort to fight Hillarycare, in 1993, 23 Republican senators, including then-Minority Leader Robert Dole, cosponsored a bill introduced by Senator John Chafee that proposed universal coverage through an individual mandate for every American to buy insurance. If it was such a good idea back then, why not now? In my opinion, Republicans today are willing to throw the baby out with the bath water just for the sake of winning an election in November. The sad part is, once the Supreme Court decides the individual mandate is unconstitutional, the idea is virtually dead. Republican idea or Democrat idea, it’s dead. Why? Because it’s virtually impossible to overturn a Supreme Court decision. Republicans will have destroyed the great idea that they originally invented just for the sake of petty politics and Americans will suffer the consequences. How sad is that?

  • http://www.facebook.com/profile.php?id=535168570 Andee Bateman

    The government already entered into a contract with the passing of EMTALA, and has forced doctors to work uncompensated.  How is that not an infringement on the rights of doctors?  To say that the government may not compel anyone to purchase insurance is sheer folly when they already compel a segment of the citizenry to work for free.  There are those that use the healthcare system whenever and how ever they chose.  They also chose to steal that care by not paying their insurance premium or suffer financial ruin when they try and pay out of pocket.  To hear the justices questions about cel phones, one time funeral expenses and broccoli was beyond ridiculous.  The only possible upside to overturning the personal mandate, is that it could clear the way to open up medicare for all with reasonable reimbursement rates.  In the meantime, many American’s will be physically harmed.  We can look at the mandated,carefully regulated, non-profit insurance program in Germany to see how its really done.  Currently, they are sitting on a 4 billion Euro surplus, and the big debate there is what they should do with it.

  • Anonymous

    In 1989, the ultra-conservative Heritage Foundation strongly endorsed the Individual Mandate. Mitt Romney got the Individual Mandate passed and enacted as Governor of Massachusetts. Newt Gingrich was once a strong supporter of the Individual Mandate and wrote extensively about its merits. In spite of all that, I see the Supreme Court handing down a 5 to 4 split decision that the Individual Mandate is unconstitutional based solely upon politics and partisanship. The GOP appointed Justices will completely ignore the historical hypocrisy of the Republican Party regarding the Individual Mandate. It will prove that the Justices will always side with the party that appointed them. It will prove that when they crowned George W. Bush as our 43rd President back in 1999, it was just another political decision. It will prove the Supreme Court is as dysfunctional and as useless as the Congress itself.

  • Anonymous

    Terrible court with 4 ideologues from the far right who have all of the healthcare they or their families will ever need forever. The wrong people are deciding this case. Roberts, Scalia, et.al. who claim to despise activist justices are the activist judges who do everything they can to push forward the Republican agenda which favors the rich at the expense of the rest of us (99%).

  • Anonymous

    The problem with the health care bill concerns the ever expanding Federal government intrusions into the life of Americans. Patrick Henry was of that generation that valued liberty over security. We live in a time where folks tend to value security over liberty. On a practical basis the current healthcare debate is stifled by a lack of vision on all sides. The biggest problem in healthcare is the lack of accurate market pricing. Both private insurances and public insurances distort accurate pricing. We need free-market healthcare with affinity groups that share healthcare costs, and perhaps a return to catastrophic health insurance only. Btw, I participate in a health shares group where we pay each others medical bills. I do not have private or public health insurance. But everybody’s bills get paid. The system does attempt when possible to shop or negotiate cheaper prices for medical care. I can go on the internet or look at the advertising inserts in the newspaper to see the flyers from various grocery stores. Then I can compare prices to see where I want to buy various items. We need to get to the point in healthcare where all prices and procedures are upfront and clearly disclosed. That will start the trend for reduced healthcare costs. Also, a return to charity hospitals,clinics,nonprofits services, churches, family assistance will also help deal with folks who have fallen on  hard times. The current system will collapse with or without the public options/mandate. Free market with accurate pricing is the way to go if we are to have a soft landing.

    • Anonymous

      There is no free-market and never has been.
      That is the Republican myth. Subsidies, favorable legislation, flat out
      collusion and more occur every day in the so-called free market. Having
      everyone in the same pool provides not only the money but the cross section of
      society with those who need little to no healthcare (unless of an accident) and
      those who need a lot of healthcare. What we really need is universal, single payer
      (government run which is more efficient with less overhead than private
      insurance companies) healthcare for all. The healthcare insurance industries do
      nothing except take your money and then deny you care; they are the death
      panels. They take 20-30% off the top for their overhead and their CEO’s get
      enormous salaries while they deny people the care they need. It is a rip off
      and needs to be exposed for what it is. Unfortunately people don’t seem to
      understand how badly they need healthcare until they desperately need it. Going
      to the ED makes us all pay for it and at a very high price. I’m not just a
      liberal do-gooder; I am a financially conservative (get the biggest bang with
      my buck) person on healthcare. This is the cheapest and best way to go. Let the
      healthcare industry go the way of the buffalo hunters. They are no longer
      needed.

      • Anonymous

        There is a free market to the degree that there is less government, monopoly, and crony capitalist interference in the market. The lack of accurate market pricing in healthcare is the fundamental problem. Without it medical care either ends up too high or rationing care goes on steroids. The kind of government that can institute universal healthcare is the kind of government that will acknowledge no bounds to its authority and its right to intrude and regulate your life. Btw, crony capitalists always depend upon a socialistic leaning government that selectively offers the largesse of the public treasury to protect them from the free market and possible failure in the market. Crony capitalism in healthcare will grow more powerful under a government that offers universal healthcare. Accurate market pricing, accurate market pricing should be our mantra. Also, for the record, I do not wear the Republican jersey.

        • Anonymous

          I don’t care what jersey you wear. You are wrong. The unfettered capitalist market brings you the wall street debacle and people working for slave wages (think the Triangle Fire scenario) and no healthcare for those who need it. Crony capitalists give their money to the Republican party overwhelmingly. You need to read some history to see that there never has been a free healthy market. Talk about monopoly, ever hear of the Standard Oil company? Read some history, not the crap in high school books. This country has used the “some animals are more equal than other animals” Animal Farm philosophy and called it capitalism.

          • Anonymous

             I have read extensively in the area of economics and economic history. I do not support monopolies because they abuse free markets if they have sustaining power. Crony capitalists have spread their money equally over both parties who actually work together despite their public posturing. Why don’t you read Frederic Bastiat’s THE LAW and ECONOMIC SOPHISMS ? It would help you understand. I also participate in a health share group that uses free markets principles combined with private community to provide healthcare for all participants. Our only concern is to secure quality healthcare at cheaper prices. Our bills always get paid. If we could drive down the costs of healthcare almost everybody could afford it. And it would become cheap enough to be easy to help those that cannot. I do not need a nanny state to have good healthcare!

        • Anonymous

          Also let me point out that it is the insane Republicans and tea party minions who crave government in our bedrooms and our physician’s offices with us determining that we can’t have birth control or abortions or basic healthcare. It is the free market capitalists in congress, the senate and in state legislatures that are overstepping the bounds of privacy and freedom. You sir are wrong.

          • Anonymous

            Enough of your democratic talking points. You, ma’am are wrong. But all that aside, what about the gist of my argument that the main problem of healthcare is accurate market pricing?

        • Anonymous

          The bank recovery (after the crash which was caused by rampant unfetter capitalism) began on Bush’s watch and I doubt that he is a socialist!

          • Anonymous

             Unfettered capitalism? Hardly. Both parties have worked hand in hand together to promote crony capitalism which depends upon access to big government largesse with the public treasury. True capitalism would have allowed the banksters to crash. They could have at least practiced some smart socialism (which can never be in the long run) and bailed out the students who are under oppressive student loan  debt.

    • Anonymous

      I guess government in our bedrooms and physicians offices controlling our birth control and sex lives isn’t intrusive to you. This is brought to us by the right wing republicans and tea party folks. I value liberty over security and I find the Republicans and Tea Party to be the scary ones. The fact is we need healthcare for all of our citizens now and the current system is a total failure unless you are a rich Healthcare Insurance CEO.

      • Anonymous

         When did I suggest I support government intrusion over birth control and our sex lives? I do not support big government (left or right)  intrusion over our personal liberties. How about the point? What about accurate healthcare market  pricing?

    • Anonymous

      Patrick Henry? Liberty? Did you know he owned slaves? To be exact, he owned 75 slaves. He owned a tobacco plantation and used those slaves to “earn” his wealth. That’s about all I need to know about Patrick Henry regarding his retarded ideas about freedom and liberty. Founding Fathers? More like Founding Morons!

      • Anonymous

         I only mentioned Patrick Henry because the author did. I suppose if you were living in the same culture under the same conditions as Patrick Henry you would have had a more righteous approach to the slavery issue. The fact remains that however blind on the slavery issue our forefathers were at the inception  of our country they did plant the seeds that would lead to greater freedom for others. But my remarks about PH were only an aside. What about the issue itself about health care market pricing? And I am sure you are also more intelligent than our “Founding Morons”. I suppose you are also a Nobel Prize winner as well. What prize did you win?

        • Anonymous

          Yes, yes and yes again! Bingo! You broke the code! 

          • Anonymous

             Sure. What about the point? What about accurate healthcare pricing? Can you guys discuss an issue without the invective and straying off issue? And worse, drawing out my irritable side as well? Accurate healthcare pricing, accurate healthcare pricing, accurate healthcare pricing. Let’s get healthcare cheap enough to be like a trip to the computer store, grocery store, and the like with catastrophic insurance to cover those unthinkable occasions. We should be asking what policies will promote quality care, low cost, and no/little rationing of critical care for the elderly and at the same time limit government control of healthcare?

          • Anonymous

            “We should be asking what policies will promote quality care, low cost, and no/little rationing of critical care for the elderly and at the same time limit government control of healthcare?”
            With the Supreme Court getting ready to declare the Affordable Care Act unconstitutional and with Paul Ryan and Mitt Romney teamed up to end traditional Medicare, why are you all worked up about healthcare pricing? While far from perfect, Obamacare was the only glimmer of hope we had to begin a slow process of reforming health care in America and introducing the kinds of creative innovation that you mention. When the Supreme Court is done abolishing Obamacare and with Ryan killing any recognizable form of Medicare, the insurance companies will have the entire health care market all to themselves and be handed free reign to do exacting as they please with zero restrictions. 

          • hanover1

             I do not like the private insurance companies just as I do not like public options. Private and public forms of insurance distort healthcare prices.  Private insurance is basically useful only to cover catastrophic costs. Otherwise it will continue to grow in costs just like public healthcare programs..Why am I worked up over healthcare pricing? Why does anyone get worked up when something costs too much? With accurate healthcare pricing healthcare becomes more affordable to the extent that insurances are not needed (private or public). Even now my wife and I participate in a health share (non-insurance) co-opt. The voluntary “collective” shares medical bills without aid of the government or private insurance companies.

            Also, because healthcare is too high and it lacks the accountability and the intelligence of the free market. The free market is not perfect. Distortions sometimes arise that need correction (by charities, friends, family care, affinity groups, churches, synagogues, etc.) particularly in a fractional reserve banking economy that produces constant inflation (except when a depression is induced). I notice you allow that Obamacare is not perfect as well. That’s fair. But Obamacare has the violence and the power of the State behind it in order to enforce its provisions.

            Much lower healthcare prices prevent the necessity of the current private and public health insurance options. I would love to see greater restriction of private insurance companies and government healthcare insurances via much lower prices. Just say no to big government and big crony capitalist businesses. We the People can solve most of our problems without them. In respect to healthcare pricing like other things in life, the more we can afford something on our own the less power and control others have over us. Essentially, I believe liberals, conservatives, democrats, and republicans simply do not have sound answers to the healthcare problem because of vested interest and blind ideologies. The lack of creativity with the healthcare crisis will eventually lead to the healthcare economic bubble bursting. And then we start over with very little money available to go to healthcare. That will lead to much reduced healthcare costs but also to much reduced quality of healthcare. Only hope? Transition to radical healthcare free market (combined with voluntary affinity group care or collectives). Lower the price of healthcare radically or the whole thing will fall apart. Obama care will not rescue us from the problem. It is simply an illusion. Lower prices via a competitive market with clear listing of health care costs is the key. Computers have dropped in price even with much improved capacities. The same can happen in healthcare. And who needs insurance (public or private) to buy a computer?

          • davemills555

            Excuse me but, in my view, the suggestions you offer are like saying “take two aspirin and call me in the morning” to a stage four cancer patient. Face it, the cost of health care in America is getting out of reach for average middle-class people. We can’t afford boutique health care delivery. We can’t afford designer health care delivery. It’s getting so that only the very wealthy can afford such expensive models. In my view, there’s only one answer to America’s health care mess. Single-payer with serious rationing. Call me crazy but, in my opinion, it’s not a question of “if” we migrate to full blown socialized medicine, just when. Vermont is well on it’s way to single-payer. I believe California is next in line. With 50 million Americans uninsured and another 25 million more who are seriously underinsured, anything is better than nothing.

          • hanover1

            You are not crazy but the analogy might be more accurate by saying there is no further help for the patient with traditional cancer treatment. We need to try something else and something different from the European approach. We are making progress in this discussion. You acknowledge the problem of healthcare costs. Good. Now please note that I am not talking about boutique health care delivery. I am talking costs being reduced for all the average Joes through a freer market with competitive pricing and comprehensive price disclosure. I know it is possible because even with the current healthcare mess my wife and I enjoy much reduced costs through a voluntary healthcare co-opt. I used to place some hope in single payer care. It is seductive in that it seems simple and a nice short-cut. My studies and my British friends and relatives have convinced me otherwise. To boot, a socialistic approach impinges on personal freedom. Further, Western countries are running out of money and already are burdened with historic levels of debt. Thatcher said something to the effect that socialism seems to work until it runs out of other people’s money. That day of reckoning has just arrived.

          • davemills555

            Seems like you’ve may have been drinking too much GOP kool-aid. Either that or you’ve been bouncing your head on the glass ceiling for far too long. If you are part of the wealthy 1 percent, my guess is that your hanging on by a very thin thread. There’s only two types of people that strongly embrace capitalism and Wall Street style greed and corruption. It’s the blue-bloods with old money and the blue-blood wannabes. The rest of us would do much better with a health care delivery system that resembles the VA or the military. The 99 percent in America would be far better with a huge increase in neighborhood clinics run by a staff of nursing professionals. You are correct. The day of reckoning has arrived. Get ready for the advent of single-payer and very serious rationing. Even some of the righties on the Supreme Court see no other alternative. Simply put, America can’t afford anything else.

          • davemills555

            Have you ever done any serious study about Cuba’s health care system? Cuba has built a health care system to rival those of the most advanced and wealthiest nations. Guess what? Free market capitalism had absolutely nothing to do with it. You mention the UK. With all of their flaws, at least nobody there is excluded from access. Same in Canada and the rest of the industrialized world. Everyone in these other countries gets at least basic health care. So, America is the richest nation in the world and claims to offer the best in advanced medicine? Tell that to 50 million citizens that have absolutely no coverage except to go to the hospital ER.

          • hanover1

             Yes. Would you go to Cuba for healthcare if you could? But just for fun. Let’s suppose Cuba’s is the best in the world but the price for the best care is to live under a totalitarian regime. The loss of freedom makes that healthcare too expensive in my book. The 50 million w/o healthcare is a bogus number. Almost all get treatment when needed. Further there are free clinics for the poverty ridden. Those on Medicaid get free care.

          • davemills555

            Freedom? Who has freedom? Show me some so I know what it looks like. Can I find it on Wall Street? Can I find it in our health care system? Dude! You really need to stop drinking that Tea Party kool-aid.

          • hanover1

             OK, I take back my “You’re not crazy” comment. I am not a Republican. You sir have partaken of the Democratic Party kool-aid. You evidently do not understand price competition. And for the record my wife and I are not wealthy. We do pay 300.00 a month for membership in our healthcare co-opt. It would be cheaper if there was across the board price competition and comprehensive disclosure of pricing in healthcare.

          • davemills555

            Uh, do “french” fries come with that thar freedom? 

          • hanover1

             And sign up yfor your Stalinist program?

          • davemills555

            Geez!

  • davemills555

    Where can I buy one of them thar red, white and blue suits those Tea Party types keep marching around in?

  • westeasterly

    I was prepared to blast this incredibly biased post, but I was surprised your final paragraph was actually even-handed.  Look, we all acknowledge there’s a crisis in healthcare in this country.  Affordability, access, availability, and the list goes on and on.  This healthcare law is not a solution, and it’s not good enough to say the infringement on individual liberty is necessary because of the magnitude or importance of the problem.  That’s an “ends justifying the means” argument if I’ve ever heard one.  It’s a politically convenient stop-gap measure that does nothing to address the underlying problems, and it’s precisely why it should be overturned.  Congress copped out on healthcare reform in a way that’s blatantly unconstitutional; I listened to the entire case and honestly felt bad for the fall guy who had to defend it.  I love a good debate, but this was a slaughter.  

    Constitution aside, allowing this law to stand gives the American people and elected politicians the false idea that they’ve accomplished healthcare reform.  
    Every advocate of this law acts like, if overturned, that’s it for healthcare; we’ll just sit by and watch everything burn.  That’s ludicrous.  The great thing about this bill being struck down is that it will force congress to enact true healthcare reform and actually work on solving the problems in our system.  Passing a law to say “well, everyone just go get insurance” as an absurd “solution,” and I for one will be looking forward to seeing true reform take place in our nation.

    • davemills555

      Those who can, do! Those who can’t? They just whine and cry and moan and complain and are usually ignored.

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