"We Take Care of Our Own" is the lead single from Bruce Springsteen's latest release. The expression also sums up how we treat people with health emergencies. For all the talk about the threat to the Constitution posed by the Patient Protection and Affordable Care Act, or "Obamacare," there has been little discussion of a vital law that guards against threats to bodily constitutions: the Emergency Medical Treatment and Active Labor Act.
Passed in 1986, the Emergency Medical Treatment Act provides that hospitals may not turn away people with "emergency medical conditions," regardless of whether they have health insurance. Hospitals must either offer treatment to stabilize a patient's condition or transfer the patient to a more appropriate facility. The law equally protects people born in the U.S.A., other Americans, and even non-citizens. It reflects basic humanity: "wherever this flag is flown" (as Springsteen puts it), we don't live and let die. Reagan cared too.
Of course, as noble as taking care of our own is, someone has to pay the bill. One arrangement is for those who have health insurance to subsidize those who do not. That is essentially how the system has worked until now. But with the Affordable Care Act, Congress decided instead to regulate health-care commerce by spreading the cost and requiring insurance for all, much as it decided three-quarters of a century ago to require Social Security contributions so that we could take care of our old. This "individual mandate" is what has triggered the current constitutional challenge, on the ground that Congress has overreached in its regulation of interstate commerce.
If the Supreme Court bars Congress from regulating the commerce of caring, Congress could respond in a number of ways. One option would be to continue putting the financial burden of the uninsured on the backs of the insured. As Justice Ruth Bader Ginsburg phrased it at last week's oral argument, what makes health insurance unique is "the cost that I am forcing on other people if I don't buy the product." In light of that rising cost, however, a more ominous reaction is also foreseeable: we might stop caring.
In other words, there could well be calls to repeal the Emergency Medical Treatment Act. That would satisfy the crowd at the Republican presidential debate in September at which people cheered their approval of the suggestion that, as to a hypothetical uninsured man in a coma, "society should just let him die."
Thankfully, American society has not embraced such hyperlibertarianism. We may be a group of individualists, but we take care of our own. In 1975, Springsteen famously sang of being born to run from a town that was a "death trap" and a "suicide rap." Who would want to live in a community like that? Twelve years earlier, the Supreme Court had reassured us that the Constitution of the country we live in is no "suicide pact."
In that case, the Court struck down a law stripping draft evaders' citizenship but at the same time stressed the inherent breadth of congressional authority to sustain the well-being of the nation: "The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact."
Indeed, the health of the republic is at the pragmatic core of our national charter. Article I of the Constitution, at the head of its list of legislative powers, echoes identical language from the preamble to the whole document in proclaiming twin bases for taxing and spending: "the common Defence and general Welfare of the United States."
To be sure, that language was written in 1787, long before the advent of health insurance, and the Obama administration has been reluctant to characterize the penalty provisions of the individual mandate as a tax. But we should never forget that the overarching purpose of our national legislature is to protect us from dangerous threats while promoting the common good. Whatever flaws it may have, the Affordable Care Act is an effort to promote the physical health of the populace while protecting the financial health of the nation.
For our Constitution to stay healthy itself, the Supreme Court should recognize that it embraces the individual mandate as a valid regulation of interstate commerce in an attempt to heal some of the country's ills. Without the mandate, the costs of taking care of our own may become unsustainable. Striking it down thus would be a step toward the potential repeal of the Emergency Medical Treatment Act -- a repeal that would, for many, be a death trap. We the People take care of our own, and so should our Supreme Court take care of our Constitution.
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