In upholding the Affordable Care Act (ACA), the Supreme Court affirmed the government's authority to ensure health care for all. The Court also pointed to a right way of doing this (through the government's tax power) and a wrong way (through compelling people to buy a commercial product from an insurance company). Yet because the Court defined its role narrowly, it found that as long as the ACA uses the tax power in some form, even if only by penalizing those going without health insurance, the law is constitutional.
But for the human rights community, the lesson is a different one: the federal government -- or individual states -- should follow Vermont's model and use taxation to guarantee that everyone has access to health care, rather than taxing those without coverage. The unconscionable effect of the latter is to pitch people against each other -- those who pay a tax and still lack coverage against those who buy an insurance product and still face barriers to actual care. Meanwhile, taxes are funneled to the insurance industry in the form of subsidies, and universal health care remains out of reach for too many people.
The Supreme Court ruling clearly turned a spotlight on one of the ACA's key shortcomings. In the words of the Court, the ACA's "requirement is to purchase insurance from a private company," which "would justify a mandatory purchase to solve almost any problem." But our country's failure to ensure people's human rights cannot be solved through the market. On the contrary, it is the inequity inherent in the functioning of markets that has caused the persistent disparities in people's ability to meet their fundamental needs. Likewise, our failure to provide health care for all cannot be addressed through, as Justice Roberts puts it, "taxes that seek to influence conduct" -- such as sin taxes. The ACA has it upside down: the purpose of a tax should be to establish a universal health care system (similar to the tax-based funding of Medicare), rather than penalizing people's lack of insurance (a "tax on going without health insurance," according to Roberts).
Although the ruling enabled many beneficial provisions of the Affordable Care Act -- including increased access to coverage through stricter insurance regulations -- to take effect, it also imposes further limits on the elusive goal of universal coverage. The Court allowed states to opt out of the long overdue Medicaid expansion and thus exclude some of the poorest and most disadvantaged people, many of whom are women and people of color, from access to care. This is one of the most disturbing consequences of a fragmented, tiered health care system, in which access to care depends on a person's income or wealth, and which continuously threatens public programs through underfunding and eligibility restrictions.
Had the Court, President or Congress taken their obligations seriously and considered whether their actions contributed to protecting and fulfilling the human right to health care, the outcome of federal health care reform would have been very different. Instead, the misguided efforts to expand the failing market-based system point to the urgent need for health reform guided by human rights principles.
Now that the Court has affirmed the obvious -- that government can use its tax power to act on our health care crisis -- it is time to move from rhetoric to reality. We should follow Vermont's example and stop treating health care as "commerce" and instead establish the tax-based, public funding that can provide health care as a public good for all. The Vermont Workers' Center's nationwide solidarity initiative, Vermont Can Lead the Way, can help point us in the right direction.