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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