Here is a passage lifted ver batim from The New York Times coverage of the decision by a federal judge in Virginia that the Obama Administration's health care reform legislation was in parts unconstitutional:
"Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration, while Democratic appointees have found for it."
Richmond, we have a problem. The contents of the U.S. Constitution shouldn't change when seen through a red lens, or blue. That the meaning of the Constitution varies diametrically when seen from the left or seen from the right is, in a word, wrong. It makes reading the Constitution sound like reading tea leaves.
In the case of the controversial provision -- the requirement that everyone buy health insurance or be penalized -- what DID the Constitution mean to say?
Almost certainly: not a thing! When our Constitution was drafted, health insurance wasn't on anybody's radar (neither, for that matter, was radar). Medicine was primitive; hospitals were all but nonexistent; long-term care institutions did not exist. There was no dialysis, no organ transplantation, no open heart surgery, no angioplasty. Acute threat to life or limb generally meant...loss of life or limb. And when the medical services of the day were required and of any use, the barter system took care of the costs more often than not.
One need not be a Constitutional scholar (and I hasten to note: I am not!) to know that the Constitution was silent on health care insurance for the same reason it was silent on inter-stellar travel. Such concerns were not part of the world in which the document was drafted.
So the Constitution is silent on health insurance per se. But it is not silent, of course, on government powers and their limits, and that's where the controversial interpretations pertaining to health care reform originate.
The U.S. Constitution says the government can't force you to buy anything. Or at least, it says something like that.
The states can force you to buy auto insurance if you drive a car. But, they can't force you to drive -- or own -- a car. So, free will prevails! The Constitution is OK with this.
The state can't force you to buy or rent an abode. But the authorities can hassle you interminably if you attempt to rest your head in just about any alternative place -- just ask a homeless person in any major city. Let's call this one a bit gray.
The controversy now is: What about health care, and the insurance that generally pays for it?
The decision in Virginia suggests that health insurance is like any other commodity, and the federal government does not have the authority to force us to buy it. Specifically, Judge Hudson stated that the government lacks authority "... to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."
The crux of the matter, then, is involuntarily entering the stream of commerce.
Alrighty, then; what about involuntarily bleeding to death? What about a case of involuntary HIV? What about involuntary meningitis, or heart failure? Few people I know volunteer for medical calamities. Medical calamities are, quite predictably, involuntary. And there's the rub.
On any given day, any of us can be involuntarily thrust into the "stream" of health care commerce by an involuntary disaster. Then the only question is: will we, or won't we, have a paddle?
When life and limb are imperiled, we intervene -- and worry about the bill afterward. Human decency requires nothing less.
But afterward, there IS a bill -- and someone has to pay it. Leaving out the details, that someone will be us. It will be paid through our taxes, or paid in our health premiums. In other words, we, the insured, ARE being forced to 'enter the stream of commerce' involuntarily, to pay the bills of those who opted out. Bad enough to be forced to buy something for yourself -- how about being forced to buy something for the other guy, who opted out of the system and left the bill to you and me?
That's the problem with thinking of health care -- and the insurance to pay for it -- as if it were any other commodity. People can just say no to any other commodity. They can't say 'no' to resuscitation from cardiac arrest -- at least not until after they are a beneficiary of it!
And worse than that- the only bills we pay on behalf of those who choose not to play are the high-cost, post-calamity bills. We don't pay for preventive care, so those opting out don't get it. They won't get their cholesterol checked, but they will get CPR. They get, and we pay for, the worst kind of care: post-catastrophe, high-cost, questionable outcome, totally involuntary care.
These are facts, readily substantiated. So where do they leave us?
In doubt, perhaps, about what the Constitution meant to say. But maybe the Constitution did not mean to say anything about health insurance, because health insurance is not like any other 'commodity.' It flows in a current quite apart from the prevailing 'stream of commerce.'
My personal opinion is that health care access should be in the Constitution as a case apart. Namely, it should be codified in the Bill of Rights as an amendment: everyone has a right to acute medical care at a time of crisis. I have made that case before. How can we rally around a right to bear arms, but not protect the arms that do the bearing? How can we protect the right to assemble, without protecting the limbs that carry us to the assembly? Life and limb would seem to qualify as priority items, and their protection a public good, with widespread public support.
But the Bill of Rights, for now, includes no such entry. In the absence of such a constitutional right, perhaps we need the 'No Label' movement to help us see the Constitution through a lens that is neither blue nor red. Perhaps an uncolored lens would show us more clearly what the Constitution meant to say in this case.
While waiting for the politics to play out, while waiting to see if the prevailing view of the Constitution is to left or to right, I maintain that inconsistent access to health care is wrong.
Our modern politics, and the polarization that currently prevails, is inviting us to infer what the Constitution meant to say yesterday. That it is open to interpretation and changes when viewed from left or right seems to indicate we are far from sure. We are putting words never spoken into the mouths of our Founders.
Maybe they just didn't answer this question for us, and we are left to figure out for ourselves what constitutes the right thing to do.
Dr. David L. Katz
www.davidkatzmd.com
www.turnthetidefoundation.org
Follow David Katz, M.D. on Twitter: www.twitter.com/DrDavidKatz
It does to lay people, but the nine experts on the Supreme Court have the qualifications, training, experience, and temperament to make final decisions on these things.
P.S.: PPACA doesn't make health insurance OR actual healthcare more affordable; policies can still have super high copays, deductibles, and limitations - and "free" routine services don't include medical emergencies!
And we sure do pay for others care without our consent. We pay for Medicaid, Medicare, Veterans, Indian Health through taxes and unpaid ER through cost shifting. We pay for others PLUS our own. Everyone needs to contribute. Hospitals have a mandate to treat everyone then everyone should be mandated to buy insurance.
But we aren't talking about the compelled purchase of healthcare, we are talking about the federal government mandating each individual purchase insurance (even if it will still have high deductibles and copays and not cover certain things) from private companies simply on condition of being a legal resident/citizen.
http://www.commondreams.org/headline/2010/12/20-7
Maybe this will have to be a states issue and we'll bring the federal government kicking and screaming out of its Dickensian tradition. Hawaii has mandated health insurance coverage through employers. Massachusetts has mandatory health insurance. Perhaps when enough states provide the structure, a workable framework can be developed that other states will emulate.
No. It's not "fair." But what's even less fair, is the hidden tax we all pay whether through increased insurance premiums or increased taxes required to cover those without insurance for the premium services when they are inevitably required for whatever reason. I'd rather know what it's costing me vs. having it hidden from me, which the good doctor covered in this article if you read the whole thing. The problem with this issue is that everyone tries to look at it in black or white, all or nothing terms, as if it could never be modified or limited in any way. For instance, one suggestion I'd favor would be to allow all citizens one free complete physical exam each year for preventative purposes. Just this one thing would result in astronomical cost savings for everyone regardless of lifestyle. Faced with the knowledge of imminent death without a change in lifestyle would also serve as a motivator for people to actually change before the inevitable instead of when it hits them in the face unknowingly. Blatantly risky activity by choice could be dealt with in a similar matter. It only takes one mountain climbing accident to determine who the mountain climbers are, after the first accident, you're on your own. Not really that hard to implement and far cheaper in the long run if you give it serious thought . . .
"Well you could argue that the mountain biker is much healthier than a couch potato that eats junk food all day and never exercises."
Well you could until they fall off their bike and crack their head open.
When I say, "you're on your own," I meant in regards to insurance or payment for medical care due to injury again by the same risky activity. I wouldn't call laying on the couch "risky behavior."
You're snide remarks do little to advance your POV . . .
I agree about the couch potatoes and those with other bad habits but we're basically powerless over others' choices.
Under the original constitution, you had a right to buy and sell people you (and the government) considered to be inferior to yourself. Under the original constitution, you had to be a land owner (of a substantial estate) to vote. Under the original constitution, you also had to be male (white preferably) to vote.
Societies change, and laws have to change with them.
Having said all that, turning over the administration of our entire health care delivery system to the ones that broke the system in the first place (the for profit insurance industry) makes me question the intelligence, if not the integrity, of those that put forward this ill conceived legislation.
Congress should take a lesson from the medical profession in this regard. When charged with fixing a problem, it's vitally important that the cure not be worse than the underlying condition you are attempting to remedy.
I personally suspect without serious revisions, what the Patient Protection and Affordable Care Act represents, is no less than corporate welfare........ a quid pro quo scheme in an attempt to raise campaign funds. Great for the big players and politicians, not so great for the rest of us.
So it's all really just academic.
What freedom are they losing, really? Lots of wheel spinning while real people really suffer.
of course it does not tell you who has to pay for the visit...but that is the way real rights are...they don't come with a means test...
http://www.dmv.state.va.us/webdoc/citizen/vehicles/uninsured_fee.asp
http://dmv.ca.gov/pubs/vctop/vc/tocd7c1a2.htm
I don't want any of it. Its a pandoras box of excuses for limits on our personal freedoms and massive growth of federal powers.
And while the author makes some compelling arguments I still think the current law is unconstitutional. It basically makes it illegal to breathe and exist without purchasing a product and that isn't going to fly.
The system we have now isn't perfect but its pretty good. Its illegal for emergency rooms to refuse care. There are clinics all over the country with amazingly affordable care. There are free clinics and massive government assistance for millions.
Live free or die. Those that would trade their freedom for their security deserve neither.
You know, there's a way to answer that question, which does not involve gazing at your own navel, brain farting a response to your own fevered musings, then considering yourself refreshingly insightful and informed.
You can look around at every other wealthy, free, industrialized country in the world where lifelong health care is a fundamental human right guaranteed to all citizens from birth.
Evaluate those countries: Australia. Canada. Switzerland. Japan. To name but a very few.
Come back and let us know which of these countries "control every aspect of everyone's life?"
Which have outlawed sporting activies, sunbathing, desserts & snacks, inflicted exercise regimes upon the people, excluded people from health care because they don't live government-approved lifestyles? Have any of them even outlawed smoking, for chrissake?
In exactly what capitalist democracy anywhere in the world has this nightmare you've conjured up for our country, emerged?
In regarding health care a fundamental human right for all regardless of class and income, these countries have somehow managed not to enslave their people. Why do you despise your own country so much that, despite readily available evidence to the contrary, this is the only possible fate you could ever imagine for it?
On any given day, any of us can be involuntarily thrust into the "stream" of criminal violence by a criminal act.. Then the only question is: will we, or won't we, have a gun?
if the government says that you need a gun because the cops cannot be everywhere all the time can they force you to buy one from private for profit arms dealer and can they make you contribute to a fund to buy guns for those who cannot afford them....
Health is almost guaranteed to be an issue for everyone, for one thing . . .
We do all require food! Why not require individuals to purchase food insurance which will pay 80% of your grocery bill after you spend $1000.00 in nutrition purchases in any calendar year ... but only for those foods that are on the government list of approved nutritional items? Keep in mind that you must use in-network supermarkets or the insurance will only pay 60% and limit the benefit to only 20 lbs of approved meat each year!
Is that a better analogy?
But of course they would go the opposite direction. If the government is responsible for our health they would argue that they have the responsiblity to confiscate all firearms for the greater welfare because someone could be injured and require care.
Now to mandate an individual to purchase for profit Medical Insurance is the problem for me without the Public Option to buy into a non-profit such as Medicare that each working American pays into right now, yes there is restrictions but it may be time to lift them and give all Americans the right to buy into for their Medical needs today.
It's still unbelievable that in the 21st century that profit for Medical is even around that Americans will just throw away from 10-30% of their money for nothing. Remember each state has the wavier right to establish their own Medical Program. As the old saying pay me today or pay me more tomorrow.
Laws are made by the powerful to maintain their wealth over the masses. We have seen nothing yet as to the ruling of Citizens United to make sure it shall not change.
Read Article I, Section 8 to understand the thirteen delegated powers of congress (and no, the necessary and proper clause does not open the door to other delegated powers, even in our lengthy history of destructive Supreme Court decisions that chipped away at these restraints).
Most civilized countries on the globe pride themselves on enshrining basic human rights in their constitutions -- it is an issue that's long past debate; we use ours as the reason to deny those rights to others under the guise of "freedom" and other very narrow and primitive interpretations of its words.
As long as we continue doing so, we should abandon any pretenses to our "exceptionalism" (unless we want to pride ourselves on being exceptionally conscienceless) and to treating our Constitution as a symbol of our moral superiority and democratic progress in comparison with the rest of the world.