The Supreme Court Debate

As has already been noted on this blog, I have weighed in on the coming US Supreme Court review of the Affordable Care Act already. I joined 49 other physicians in an Amicus Brief asking the nation's highest court to overturn this legislation. Today, the arguments before the Court will begin. Here is a selection of coverage and opinions about this important moment in American history.

From USA Today (http://www.usatoday.com/news/washington/story/2012-03-19/health-care-law...):

The most recent poll by the non-partisan Kaiser Family Foundation found 41% support and 40% opposition among Americans, almost identical to when the law was passed in March 2010.

This is what NY Times columnist (and economist) Paul Krugman said (http://www.sltrib.com/sltrib/opinion/53747700-82/reform-care-health-act....):

It’s said that you can judge a man by the quality of his enemies. If the same principle applies to legislation, the Affordable Care Act — which was signed into law two years ago, but for the most part has yet to take effect — sits in a place of high honor.

Now, the act — known to its foes as Obamacare, and to the cognoscenti as ObamaRomneycare — isn’t easy to love, since it’s very much a compromise, dictated by the perceived political need to change existing coverage and challenge entrenched interests as little as possible. But the perfect is the enemy of the good; for all its imperfections, this reform would do an enormous amount of good. And one indicator of just how good it is comes from the apparent inability of its opponents to make an honest case against it.

To understand the lies, you first have to understand the truth. How would ObamaRomneycare change American health care?

For most people the answer is, not at all. In particular, those receiving good health benefits from employers would keep them. The act is aimed, instead, at Americans who fall through the cracks, either going without coverage or relying on the miserably malfunctioning individual, "non-group" insurance market.

The fact is that individual health insurance, as currently constituted, just doesn’t work. If insurers are left free to deny coverage at will — as they are in, say, California — they offer cheap policies to the young and healthy (and try to yank coverage if you get sick) but refuse to cover anyone likely to need expensive care. Yet simply requiring that insurers cover people with pre-existing conditions, as in New York, doesn’t work either: premiums are sky-high because only the sick buy insurance.

Here is how it is covered on the website Politico (http://www.politico.com/news/stories/0312/74161.html):

Despite all the bombs thrown at the health reform law — and there have been bombs aplenty — two years after President Barack Obama signed his crowning domestic achievement, the core provisions remain essentially unscathed, and reform is kicking in haltingly around the country.
The country remains surprisingly clueless about the Affordable Care Act, repeated polls have found. Indeed, one recent poll found that more than one in seven think the U.S. Supreme Court already struck it down. And the public is evenly split over whatever they think it is. Deep antipathy is a Republican shibboleth. And even among Democrats, support is often lukewarm, with moderates worried about the cost, or progressives still smarting over the lack of a “public option.”

And for the most part, friends and foes of health reform agree that it will be consummated over the objections — if the Supreme Court rules that the law passes constitutional muster and the president wins a second term.
Big ifs.

At the same time, the administration repeatedly has cast implementation rules and guidance in ways that give the states a lot more flexibility than anticipated. The idea is to encourage state ownership of health reform, which fundamentally can’t work without the states. Politically, it seems an attempt to blunt the one-size-fits-all, Big Government criticisms of the health law, but it’s also created new layers of confusion for state officials and insurers.
The unrelenting political heat and the profound public confusion amount to a communications failure on a grand scale for an administration that sank so much political capital into getting the law enacted. The administration hoped the country would rally once the benefits started flowing and the dust settled. That didn’t happen.

Here is the weak argument in favor of keeping the law made by the editorial board of the Salt Lake Tribune (http://www.sltrib.com/sltrib/opinion/53780878-82/insurance-care-health-l...):

The U.S. Supreme Court will hear arguments this week about whether the federal health care reform law is constitutional. The single most controversial provision in the law is the individual mandate, whether the government can require every American to be insured. Opponents regard this as an outrageous infringement on basic rights. That argument is ridiculous, especially in light of the other things that federal law already demands of citizens.

Besides, many of the opponents of the mandate are champions of personal responsibility. Yet buying health insurance is an act of personal responsibility. People who don’t, and show up for charity care in an emergency room, are shifting the cost of their care to everyone else who is insured, because health insurance premiums are inflated to pay for that charity care. Some estimates place this cost at about $1,000 per insured person per year. The mandate should reduce that.

Admittedly, this is something of an oversimplification, because the law is complicated. About half of the people who are not insured now would get insurance through an expansion of Medicaid, the government program for the poor. The other half would be people who would be required to buy insurance on the private market. Those who don’t would pay fines. Large employers who do not offer insurance also would pay penalties. New taxes would pay for subsidies for people with modest incomes who still would not qualify for Medicaid and otherwise could not afford to buy insurance.

People who get insurance through their employer now would not be affected.

So the law is complex. But in the end, it all comes down to how you define personal responsibility.

My Comment:

The American public knows this law is fatally flawed. Though named "The Patient Protection and Affordable Care Act" it neither protects patients nor is affordable. Krugman makes the strongest case against the law, though he was ostensibly trying to defend it: The law doesn't change anything that matters to health system reform. If you like the way that the private health insurance business model has burdened American employers while distorting health care delivery against the patient, you'll love the way that PPACA keeps health insurers in the driver's seat. The Salt Lake Tribune's argument that personal responsibility is the essence of the personal mandate is silly. Americans have taken personal responsibility for health care financing very seriously, voting for taxation to support health care programs at levels not seen in any other country. But Americans know a bad deal when they see it, and health insurance is the market's worst deal. Why should their government tax them more heavily for health care than does any other government and then, on top of that, force them to buy the world's most useless, wasteful product? The Affordable Care Act can not be implemented. It's too complicated and costly to actually function. Krugman's statement that it is already functioning in Massachusetts ignores the fact that officials from that state testified in Congress that so-called 'Romney-Care' was unsustainably expensive.

The US Supreme Court can do us all a favor and reverse this law, forcing us back into a national discourse about health system reform. But, if they fail to do that, we will inevitably have to return to that discussion anyway. Obama-Care cannot endure: it's too complicated and costly.

Dr. Joe Jarvis