With all of the silly signs outside the Supreme Court and philosophizing inside, it can be easy to miss how catastrophic it would be for the country if the justices strike down the Affordable Care Act. While still a work-in-progress, the new health law is almost certainly the last best hope we have for attacking the fatal flaws in the American health care system. Take away the law, and we are stuck for a generation or more with the reality of a health care system that each year will cost more, deliver less and exclude more people.
Here are six things that every sane person should know about the healthcare debate.
1. The legislation is not as big and complicated as we've been made to think. Think of the law as a triangle that does three basic things: First, it tightens the screws on insurance companies so that none of us is at risk of being cutoff or denied coverage when we or our loved ones get sick and need it most. Second, it brings almost everyone into the system by providing individuals with subsidies to buy coverage and expanding the Medicaid program to cover all people at or just above the poverty level. And third, it promotes a set of promising local and state innovations designed to improve the delivery of care in order to reduce the cost and improve quality.
Rather than see the Affordable Care Act as a big federal take-over of healthcare, as it has been politically attacked, it is more accurate to understand the law as a framework for states, local communities, health care providers, businesses and ordinary citizens to tackle the urgent task of fixing the American healthcare system. We should not be fighting about the framework, which represents a set of compromises between conservatives and progressives, but about how to implement the law.
2. The Affordable Care Act is already helping tens of millions of people get better health. In 2011 more than 86 million Americans received free preventive care such as mammograms and colonoscopies. More than three and a half million Medicare beneficiaries have saved more than $2.1 billion on prescription drugs. Small businesses are better able to provide coverage to their employees, and parents of children with pre-existing conditions no longer have to worry their children will be denied coverage. More young adults (2.5 million) are able to stay healthy by remaining on their parents' health insurance plans. In the coming years millions more Americans will gain the physical and financial security of having health coverage.
3. There is no real alternative. With all of the talk about repeal, there is no viable alternative on either the right or the left that would plausibly result in a healthcare system that provides coverage to all Americans and slows the growth in healthcare spending. If the Roberts' Court strikes the mandate, it will probably also eliminate popular rules that prohibit insurance companies from denying people coverage for pre-existing conditions. This would take the heart out of the law. The Roberts' Court could still leave in place the expansion of Medicaid, which extends health coverage to as many as 16 million low-income uninsured people. That would still be an important step forward for the country that shouldn't be sneezed at.
Regardless of whether the Roberts' Court takes a scalpel or a sledge hammer to the law, it will be extraordinarily difficult to find any common ground in Congress to pass new health care legislation. And federal politicians will go back to avoiding the issue like the plague, as they did after the Clinton effort failed. After all of the political capital invested by President Obama, who would try again anytime soon?
4. People will die. I found it sickening to read of Justices Scalia and Alito's concern about the financial health of insurance companies and the amount of reading their clerks might have to do in contrast to their seemingly heartless disregard for human life and the pressures on families who cannot afford health insurance. Each year about 40,000 people die prematurely because they lack health coverage. Many hundreds of thousands of people delay needed care and live with unnecessary pain and stress. The justices (who sit in the warm embrace of government-provided healthcare) are happy to philosophize over broccoli. They need to be reminded that their decisions on this case will have life or death consequences of people in the United States.
5. Costs will go through the roof. The Affordable Care Act does not do enough to limit the long-term growth in health spending in the United States. But it does put the country on the right path by changing how health care is paid for to reward medical providers for getting and keeping people healthy rather than for more tests and procedures. It also enables states to create health care exchanges that will bring transparency to the health care market and be a boon for people who purchase coverage on their own. More will need to be done, but almost all of the policies that control health care costs build on what is already in the new health law.
6. If it looks like judicial activism and smells like judicial activism, it is. Seventy-five years ago the U.S. Supreme Court relented on its stubborn opposition to regulations designed to protect children and families from the vicissitudes of an increasingly complex national economy. Since then, the Court has allowed Congress and the President to regulate the national economy without judicial meddling. If the Roberts' Court decides to strike down the health care mandate or the entire health care law, it will not be because it faces a novel question, but because Justice Roberts and his conservative colleagues have made a decision to use their powers to remake the country along their personal preferences. And they know that.
The Roberts' Court's Citizens United jurisprudence on money in politics has already fundamentally eroded American democracy. In June we'll know if the Court has done the same thing to our social safety net.
Let's pray for Justice Kennedy -- the court's swing vote -- to find the wisdom and compassion to understand the real world, human consequences of his legal analysis. If he fails, our nation will not only miss out on an opportunity to save tens of thousands of Americans from shorter and more painful lives, it will move one step further in losing the Supreme Court as an instrument of justice, fairness and social progress.
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