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Miles J. Zaremski

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The Supreme Court and Health Care as a Right

Posted: 01/06/12 05:30 PM ET

March 26-28 will be historic days for our United States Supreme Court for it is then that it will hear about 5.5 hours of oral arguments on four issues that focus on whether the Patient Protection and Affordable Care Act (ACA, or as some prefer to say, "Obamacare") will remain the law of the land. Treatment of such issues is unprecedented in the annals of the Supreme Court... but so is ACA in its breadth and intended purpose for our nation.

Arguments before the Supreme Court will focus on whether or not the individual mandate that requires all Americans to purchase health care insurance starting in 2014 is constitutional; if the mandate is struck down whether the rest of the law can remain in effect (this is called the "severability" issue); whether ACA's enactment of provisions relating to increased burdens upon the states in the expansion of Medicaid program is lawful; and whether the Supreme Court even has the authority to hear all the issues in the first instance because of a federal law called the Anti-Injunction Act that precludes legal cases that challenge a tax without the tax first having been paid or, if not paid, the government coming after the taxpayer for what is due after the payment of it has come and gone. The latter is a yawner of an issue, though important, because ACA provides for a tax upon any American who fails to purchase insurance, but such a tax will only first become due on Tax Day 2015.

Most of us will not have an opportunity to hear what members of the Court will ask and say and what the advocates for the respective parties will advance over the three days at the end of March. Not to worry, however, given a very recent, 145-page book authored by noted M.I.T. economist, Jonathan Gruber, titled, Health Care Reform-What Is It, Why It's Necessary, How It Works (Farrar, Straus and Giroux (2011)). He was the key architect for Republican Presidential Candidate Mitt Romney's health care reform effort in the Commonwealth of Massachusetts when Romney was governor, and consulted extensively with the Obama administration in the development of ACA. To be sure, I am not a shill for marketing Professor Gruber's tome here, but in all the work, review, analysis and reading on ACA I have undertaken over the past couple of years while it was being crafted, developed and passed into law, this is probably the best explication of it in a readily understandable form. Why? Because he writes about ACA in a comic-book form style that makes concepts within it understandable in a way that words on a page certainly could not.

While supportive of the mandate, Gruber tells us that if ACA is struck down by the Supreme Court, the remainder of the law could still stand but it would be less effective in carrying out its intended purpose -- to provide access and affordability to the 50 million or so Americans who are uninsured, rising to millions more if one includes the underinsured. Also, if the mandate does not succeed, the independent CBO (Congressional Budget Office) estimates that only half as many uninsureds would gain coverage, premiums in the non-group market would be 20 percent higher, employer provided insurance falls twice as much, and government spending on the insurance expansion only falls by 25 percent, so only 50 percent of those intended to be covered at 75 percent of the cost. (This information is found on page 126 of Gruber's book.)

The title to this piece mentions health care as a right. In a real sense, this is the foundation from which any Supreme Court analysis should begin. No, I am not suggesting that it being a right in any constitutional sense, though the Declaration of Independence speaks in terms of life, liberty and the pursuit of happiness. I am speaking in terms of health care in a kind of human rights or moralistic way, like all industrialized countries view it except us. (We look at it as a product from which profits can be readily made by industries involved in its creation, access and delivery.) I was not the first to articulate this concept, since its roots can be traced back to FDR in 1943 when he crafted his proposed 'Second Bill of Rights.' As more fully explained by authors Jean Carmalt and Sarah Park ("The Right To Health Care in the United States of America-What Does It Mean?" (Ctr. for Economic and Social Rights (2004))), FDR declared 'freedom of want' to be one of four essential liberties for human security. His definition of freedom included, "the right to adequate medical care and the opportunity to achieve and enjoy good health." Carmalt and Park wrote, "The right to health was subsequently enshrined in the Universal Declaration of Human Rights", a 1948 United Nations document. Obama reminded us when he was campaigning against McCain while in Nashville in 2008 that health care was a right and not a privilege or responsibility.

So, when our Supreme Court tackles the health care cases in less than 90 days from now and has read and sifted through the scores of legal briefs from the parties as well as all the amicus (friend-of-the-court) briefs from others, the lens through which the issues and arguments should be viewed is just what kind of product health care is and whether we have a right to access and afford it. After all, it is the most unique of anything in our existence as citizens, since (1) we all need it to be productive -- to ourselves, our families, communities, employers, and even to our country on a macro scale; (2) we will all require access to it some time during our lifetime; and (3) if we require it and cannot afford it or do not have insurance to pay for it, there is federal law (E.M.T.A.L.A.) that says hospitals must treat us until we are stable enough to be transferred someplace else or to be discharged. Moreover, all of us cross over state borders all the time, so health care is a national problem that requires a national solution (stated, too, at the end of a recent federal appeals court decision upholding ACA).

More critical, perhaps, when judging whether it is constitutional for the government to tell us we have to have health insurance two years from now, think about if it is not, then do we wish to see -- as Professor Gruber tells us in his book -- over 25 million Americans then go without insurance and thus without the means to be healthy? Isn't this a right that should never be tossed aside for any citizen of the United States? Consequently, shouldn't the Supreme Court provide us an indication that this notion exists as part of its decisions on the cases before it?

 
 
 

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