The Supreme Court and the Affordable Care Act: Yes? No? Maybe?


March 1, 2012

by Ron Manderscheid, Executive Director, NACBHDD


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Will social justice prevail in the Supreme Court decision?

On a long flight from Frankfurt, Germany, to Washington, DC, in the brilliant sunlight of a late winter’s day, I had the opportunity to reflect on the upcoming US Supreme Court decisions regarding the Affordable Care Act of 2010 (ACA). Current plans call for the Court to hear arguments on March 26-28 and to issue an opinion before the current session ends in June. Will social justice prevail in the Supreme Court decision?

We are rapidly approaching a critical juncture that should cause all of us to pause and to reflect. On one side, we have the ACA and the promise it holds for all Americans. It is particularly crucial for those who live on the edge of financial disaster because they do not have health insurance. On the other side, we have “business as usual” healthcare that excludes many. As we all know, our current system promotes ever increasing prices for health care and dramatic annual growth in overall costs. Which of these courses will the Court select for us?

The Court is being asked to rule on two issues that have been placed before it, both of which concern the appropriate constitutional exercise of Congressional authority in the ACA: First, what is the constitutionality of the individual health insurance mandate [i.e., everyone is required to purchase minimal health insurance]? Second, is the Medicaid Expansion constitutional? In this short commentary, I would like to examine the context in which these decisions will be made and the consequences of each decision.

Today, our US health care “system” is very large, equal to about one-fifth of our annual economy. It dwarfs other human concerns, such as education and human welfare, which are minor by comparison. As we look toward the future, we can see clearly now that rapid continued annual growth in expenditures will occur due to several factors, including changing demographics (the elderly population will double in 20 years), rapid implementation of expensive new technologies and medications, and continued and growing use of expensive emergency department care by those who lack health insurance. Not to engage in hyperbole, but to underline the significance of these trends, it is fair to say that the growth in total health care costs in the US have the potential to overwhelm both the US economy and the federal government’s capacity to provide necessary funding for health care. Thus, to me, immediate action is fully warranted, and the ACA is a fully appropriate response to a very severe and growing problem.

Now, let’s consider the questions before the Court:

The Individual Mandate Question: Here, the plaintiffs argue that authority granted to the Congress by the Constitution to regulate interstate commerce does not extend to the mandate that all citizens purchase minimal health insurance. Since fully 20 percent of our national economy is devoted to health insurance and health care expenditures, and a substantial portion of this money flows among the states, prima fascia evidence exists that interstate commerce is clearly in play right now. A few moments reflection also will convince you that a significant portion of this interstate commerce is due to the flow of public and private funds that support care for the 32 million adult citizens who currently lack any health insurance. Hence, the individual mandate is related directly to Congressional authority to regulate interstate commerce: Interstate commerce is taking place today precisely because we lack the individual insurance mandate, not simply because it would be imposed by the ACA.

At a practical level, no insurance system can remain financially viable if those who are healthy are permitted to opt out. In such systems, available resources become insufficient to cover the care needs of the ill. In the extreme, the system enters an adverse selection death spiral and fails. Ample evidence is available all around us: Private insurance companies prefer to cover the healthy, not the ill, for that very reason.

We also must consider the fact that tens of billions of dollars are wasted each year on very expensive emergency room care for those who lack health insurance. Such facilities are required to serve all who need care, irrespective of ability to pay. If these people actually had personal health insurance, they could be guided into less expensive and more effective primary care.

The Medicaid Expansion Question: Here the plaintiffs argue that the taxing and spending powers granted to the Congress by the Constitution do not extend to “coercing” the states to expand Medicaid. On this issue, we must note that no court has ever found that conditions attached to Congressional spending are coercive to the states, despite numerous federal programs over our national history. Further, this spending authority granted by the Constitution is for the purpose of promoting the “general welfare of the United States.” How could one reasonably argue that extending Medicaid coverage to 16 million uninsured adults does not promote the general welfare of our country?

As a practical concern, we must note that, between 2014 and 2020, the federal government, not the states, will initially cover 100 % of the cost of the Medicaid expansion, and that this federal coverage will gradually decrease to 90%, and then remain at that level. It is hard to see how such coverage will be “coercive” to the states, when the states have already agreed to provide Medicaid coverage to other populations at far lower federal matching rates.

The 16 million citizens to be enrolled in Medicaid are among our poorest and least healthy Americans. Developing a more rational approach to their health care will not only conserve precious health care funds, but also improve the health of this population and reduce their need for expensive care over time.

At a human level, good health is (and should be) a basic right of all Americans. If we value all people equally, then we have an undeniable moral obligation to implement the ACA to improve the health and health care of those who currently lack both. Although not directly part of the Supreme Court case, these principles are clearly implicit in our Constitution and its intent to protect all Americans.

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