On March 26-28, the Supreme Court will hear over five hours of oral arguments in perhaps the most historic cases in its storied existence -- whether or not the 2010 Patient Protection and Affordable Care Act ("ACA") is constitutional and will continue to be the law of the land. It also happens to be the signature piece of legislation in Obama's first term.
To be sure, there is great passion and reason on both sides of the debate. Some have argued that health care is not so unique; that it is not an economic fact that all people require health care; and that while the government can compel military service, jury duty and taxation as the "cost of citizenship," having to purchase health insurance does not go to the government but to private companies. Others have said, including this writer, that the health law is constitutional.
Putting the political implications of any decision aside -- the Supreme Court will not duck any of the four issues before it: whether the minimum coverage provision, aka individual mandate, is beyond the limits of the federal Commerce Clause; whether ACA can exist without the mandate; whether the cases are not ripe to decide because the penalty for not purchasing a policy is a tax that cannot be challenged until after it is paid or not paid when due (the first time for any of this would be after April 15, 2015); and whether ACA's provisions on Medicaid do not coerce the states into participating in the Medicaid program]. After all, it was not that long ago that the Court got publicly fried over its decision in Bush v. Gore and certainly the dust has yet to clear from the Court's Citizens United decision. That should not matter now since the healthcare cases strike at the heart of an American's health and not who will be president despite this being a presidential election year. As well, it is doubtful that the Court wants to be known as having "three strikes" against it, if it shoots down President Obama's signature legislative accomplishment this term on top on what how it handled George W's victory over Al Gore and the millions that are gushing into the presidential campaigns due to how it decided Citizens United.
The most important and easily understandable of the four issues is whether we all will be compelled to buy a health insurance policy. When the air is cleared, when the wheat is separated from the chaff, and when the emotion and passion are squeezed from the rhetoric, what is left is simple enough-what is this thing we call health care and whether the market we look to for our health and then to maintain it is so unique that there exists a constitutional justification for the health law? Answering this will always come down to a coda of the following points:
(a). There is an unavoidable need for medical care.
(b). There exists unpredictability of such a need.
(c). The cost of health care generally outstrips an individual's or family's ability to pay, and the
model used for most Americans is insurance to thus pay for it.
(d). Healthcare providers cannot refuse to provide care in emergency situations.
(e). The cost shifting that occurs from those who cannot afford health care to those who can.
There is never a deferral of costs when health care is required by the uninsured.
(f). To ensure ACA's guaranteed issue and community rating provisions -- coverage for
pre-exisiting conditions and no discrimination in coverage by age or gender -- the
insurance industry requires the risk to be spread across as large a population as possible.
Those opposing ACA will say (before the Court) that health care is not so different than, let's say, food, clothing and shelter, which may be more important, or certainly no less important, than maintaining one's health. Or, if the government can force us to buy insurance, why not, e.g., suntan lotion to prevent skin cancer? But as opposed to food, clothing and shelter, even for the less fortunate, advance planning for those items does not take place when one requires the services of the healthcare marketplace. Countering the argument that if we are compelled to buy an insurance policy what will be next, in what other market is a product required by law to be provided to all those who need it regardless of their ability to pay for it and then that such costs are passed along to those of us who can pay for it? And it is a fool who says that not all citizens require health care. Consider for a moment whether health care services were required to bring each of us into existence. Get the point?
Despite all the legalese that will be argued before nine human beings who require health care just as much as the rest of us but who are our Supreme Court, and despite all their questions from the bench, when it is all said and done, we all must ask ourselves, just what is this thing called health care and where should it rank among the goods and services we buy, sell and use daily? As this writer has said many times before, health care rises to the top of any such list, all the way up to being considered a right for every American. And if imposing jury duty, taxation or military service is the cost of citizenship, why shouldn't the U.S. come into line with other nations that view the health of its citizens on a similar pedestal? Let's hope such philosophical underpinnings invade the mental recesses of at least five Justices as they listen to and then determine whether ACA is, and will remain, the law of our land.
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