12/20/2010 07:59 am ET Updated May 25, 2011

Health Care Law: What the US Constitution Meant to Say

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

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