Very recently, the pages of The Huffington Post -- as was true within every media outlet and what rolled off of the lips of every major political pundit -- were awash with commentary and analysis on the 11th U.S. Court of Appeals in Atlanta striking down as unconstitutional the individual mandate contained in the Affordable Care Act (ACA). With its 2-1 decision, this makes six federal jurists who have ruled that the mandate is constitutional and five finding to the contrary, including an opinion in Mead v. Holder by federal district judge Gladys Kessler of the district court for the District of Columbia; her decision has not been appealed. Yet to be heard from are three judges from the 4th U.S. Court of Appeals court that has yet to issue an opinion on two cases decided in opposite ways in its district courts. According to one op-ed (Buffey, "Will Health Care Reform Survive the Courts", NY Times, 8-2011), the most compelling statement thus far by any jurist -- to be sure there are scores of them depending upon one's viewpoint -- is the one scribed in a concurring opinion by Judge Jeffrey Sutton of the 6th Circuit, a George W. Bush appointee. He wrote, "No matter how you slice the relevant market-as obtaining health care, as paying for health care, as insuring for health care-all of these activities affect interstate commerce, in a substantial way." I could not agree more.
As if proof is in the pudding, witness the various free weekend clinics over the last 1-2 years where thousands unable to pay for medical care have shown up to be treated; the next one is in New Orleans at month's end; the most recent one just concluded and was for dental care in Charlotte, NC. Over 2,500 folks waited in line before the doors opened ("Clinic a respite for people who are unemployed or uninsured", Charlotte Observer -p.1A, 4A 8-20-11). But whether the mandate will stand or not will be an issue that no doubt our nation's high court should be deciding within 12-18 months. Hopefully, it will be with a view that health care is a right for all of our citizens.
ACA provides in part for an expansion of Medicaid, the program jointly sponsored by each state and the federal government for the poor. In the 11th Circuit case, the 26 states that are the plaintiffs ask that it be struck down, asserting that this was an area to be controlled by the states alone and that, if upheld, the states would have to pay more than what each is doing now. The 11th Circuit disagreed because the federal government would be providing the funds and the states have time to work on it before this program kicks in (2014).
The Medicaid aspect of ACA is not the only state-based area of concern, if recent activity in Illinois is any example. Just last week, Illinois' Department of Revenue (IDR) ruled that three well-known hospitals within the state did not provide enough "charity-care" (care provided without charge or that is deeply discounted to the poor) to continue its property tax exemption that saves them $millions because of their not-for-profit status. The IDR is reviewing property tax exemption applications from 15 other Illinois facilities too. This falls on the heals of a ruling by that state's supreme court a year ago last March that found another healthcare provider, Provena Covenant Medical Center in downstate Illinois, rendered too little charity-care to further qualify for its annual $1.2 million exemption in local property taxes. The upshot, at least in Illinois (and in other states facing similar circumstances no doubt) is that having to pay huge, unplanned property tax bills -- on top of the burdens caused such entities paying for care for those within the 50 million citizens who are still uninsured, unemployed or underinsured -- create an unbelievable crisis in American healthcare. As Kessler recognized in support of her view that the mandate is within Congress' ability to regulate Commerce and is thus constitutional, "Of even greater significance to the national economy is the fact that these uninsured individuals are, in fact, shifting the uncompensated costs of these services -- which total $43 billion in 2008 -- onto other health care participants, as well as federal and state governments and American taxpayers." And this is not to mention the astronomical premiums insurers force policyholders to pay for health policies.
When the United States Supreme Court takes up whether the individual mandate is constitutional, the words of Judge Sutton, quoted above, should be instructive. But the justices should be mindful of what Judge Kessler has to say as well. Whether Congress has the constitutional authority to create the mandate or not, one fact is unalterable -- more fuel continues to be added to the (raging) fire we call our health care delivery system. That makes affording and accessing it for all citizens that much more intolerable.
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