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Is the Affordable Care Act Really Unconstitutional?

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I have no idea what the U.S. Constitution meant to say about health insurance -- and, frankly, I don't think any Constitutional scholar does either. There was no health insurance when the Constitution was written.

So, my best guess may be about as good as anyone's, and my best guess is: not much. That may be why interpretations of how the Constitution pertains to the Obama Administration's health reform package seem to have more to do with political affiliation than any irrefutable position staked out by the Founding Fathers. The federal judge in Florida who just found the whole magilla unconstitutional is -- surprise -- a Republican. Democrats to date have -- surprise again -- uniformly gone the other way.

My plea in this post is a variation on the theme I've already established for this topic: maybe we are on our own. Maybe the founders did not anticipate drug-eluting coronary stents, chronic ambulatory peritoneal dialysis, or the costs, co-pays, and deductibles that come along with them. Maybe we need to use our own common sense, rather than keep telling one another why long-dead people meant to say what our particular team wishes they meant to say.

I suppose even common sense might take us in opposing directions, but here's where mine takes me. Healthcare is not a 'commodity' like any other.

The crux of the Constitutional debate seems to be whether or not the federal government can compel us to buy any commodity. What my common sense tells me is that in the case of healthcare, it is not the government, but the slings and arrows of outrageous fortune that compel the 'purchase.'

If you can't afford a car, you can get by without one. If you can't afford nice clothes, you can manage with Good Will. If you don't ski, there is certainly no reason to buy skis, or lift tickets.

But if you are hit by a bus, or fall off your roof, or drive a shovel into an underground electric cable, or have a heart attack, or get struck by lightning, or develop diabetic ketoacidosis ... you will get treated. The only option is for passers-by to leave you lying, writhing, seizing, or bleeding -- because you have not expressly, in advance, chosen to 'purchase' health care. Chances are, if you were conscious while seizing or hemorrhaging, you might want the opportunity to reconsider.

But there is no opportunity to reconsider priorities, commodities, or purchases during a calamity. During a calamity, the default judgment of passers-by, the default action of a society of fundamentally decent, compassionate people is ... to shoot treatments at you first, and ask questions about your insurance status and credit score afterward. Would anyone really want this to work differently? Can you envision the world where you are left on the sand to bleed after a shark attack until we verify your financial assets?

Now let's consider the heavy hand of government against which the Republican version of what the founding fathers meant to say protects us.

Maybe you, the one bleeding, seizing, or dying -- are not compelled to 'buy' health insurance -- because nobody's the boss of you. Maybe you get treated for your calamity, and simply don't pay the bill. But then I, and everyone else, are compelled to 'buy' what you did not. We pay more taxes to support the public provision of care. We pay higher insurance premiums to cover higher hospital charges to account for the fact that a certain percentage of customers get care they don't pay for. If health care is a commodity, then by not requiring some to buy it, we are -- ipso facto -- requiring others to buy it for them. Where's the Constitutional protection against that?

There is none -- and can be none -- because health care is not a commodity. It is an event, a crisis, an occurrence. And paying for it simply ... happens. There isn't much in the free market system that looks like this. There isn't any particular reason why the founding fathers would have anticipated this issue.

The problem with debating how what the Constitution says about commodities applies to healthcare is that healthcare is not a commodity. It is, all too often, as unintended and unplanned as it is unavoidable. Health care is not a commodity, and the Constitution does not seem to have said anything in particular about whether or not to send out an ambulance to deal with someone who can't pay for it, and then impose the bill on those who can.

My common sense tells me that health care is, and should be, a case apart. And therefore before we imagine different meanings in the words of those who never imagined health insurance, perhaps we should consider what would be the sensible way to handle a 'purchase' the purchaser is apt to be in no condition to refuse.

Not because of anything the Constitution or Obama Administration did or didn't say. But simply because the slings and arrows of outrageous fortune may fall on any of us at any time -- and when they do, somebody will be left to pay the bill.

Dr. David L. Katz; www.davidkatzmd.com
www.turnthetidefoundation.org

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