Health Care Reform, The Affordable Care Act, and Making You Eat Broccoli
Health Care Reform and Dementia were discussed in this blog last month. Today we will examine the constitutionality of Health Care Reform and the Affordable Care Act.
How merry the Holidays. Food, fun, caring and sharing - and the occasional political debate. This year the young college sophomore, my wife’s cousin’s son, exclaimed why insurance rates are so out of hand, “It’s all these outlandish lawsuits!” Why he once heard of a $127 million dollar case against a doctor. Of course, being a trial lawyer, I was aghast that a semi educated student would make such a statement and off the ground the debates went. Medical malpractice lawsuits that are “frivolous” typically do not see the light of day in a court room, let alone proceed to a multimillion dollar verdict. If they do they are deliberated by a jury which is the fairest way to make such decisions.
Health Care Reform, aka ACA or Affordable Care Act, was the topic of debate right next to the Christmas tree. My conservative in-laws refused to be taxed or forced in to paying for health care premiums, period, end of story. Typical conservative responses gave no credible sources of argument other than, “I heard someone said…” I, a trial lawyer, tried to explain that having everyone insured would pass the cost of health care from the taxpayer to the insurance company. Being asked to pay the price of insurance would avail everyone coverage so that when health care is received, as it is with or without insurance, the cost is not passed on to consumers in the form of taxes. Paying a little sooner is better than paying a lot later. Who pay when public hospitals are in the red? They still have to provide care even if they do not get paid. Who pays – the taxpayer!
So for my in-laws and the reading public I share an article I read in the New England Journal of Medicine December 2010. The article points out reasons why the ACA is controversial.
Preserving the Health Insurance Industry
The two goals of the ACA are to provide affordable care to all Americans and preserve the health insurance industry. The second portion is controversial. Can an American consumer be required to purchase a product from the private sector? If they can then why can’t the government require all Americans to buy a car in support of the Car Industry? Good question.
But if, like in Bush v Gore, the Court can see this decision as a limiting one, it need not create precedent. So when Florida’s Judge Vinson asked “If they decide everyone needs to eat broccoli,” can Congress require everyone to buy broccoli? The Obama Administration correctly pointed out that the topic was health insurance, “it is not shoes, it is not cars, it is not broccoli.” And it is not.
This would have been completely avoided if the government would have created government insurance, like Medicare, Medicaid or Veterans insurance. Those insurances do not raise constitutional issues because they are government/tax funded benefit programs. The Constitution specifically gives Government the right to tax and spend for general welfare. But since conservative legislatures insisted on preserving the private sector insurance industry, those same conservatives are now arguing it is unconstitutional as a violation of the commerce clause, the regulation of commerce between states.
The Court’s interpretation of the Commerce Clause is the Issue
The government has authority to enact laws in support of National defense and to regulate interstate commerce. However recent decisions make this decision open to interpretation. Congress cannot prohibit handgun possession in school zones under the commerce clause. U.S. v Lopez (1995) Congress can prohibit private marijuana cultivation of small amounts for medicinal purposes. Gonzalez v Raich (2005)
The broad and narrow interpretations make the court’s decision in the constitutionality of the ACA uncertain. But we are not asking Congress to make us eat broccoli, we are asking Congress to get the cost of health care under control. As my Canadian friends point out, the seriously ill get health care and the less seriously ill wait a few weeks. Why is this so wrong? Are we just afraid to admit that being socially responsible is being a socialist? Social Security is a form of socialism. And it is the right thing to do. So is providing health care.
