Health Care’s Day in Court

By on March 22, 2012

Observers of the health care reform process are focusing on upcoming activity before the US Supreme Court about the constitutionality of the 2009 Health Care Reform Bill. Three days of arguments are scheduled next week beginning Monday, with a verdict expected in June.

At the heart of the challenge, in which 26 states are participants, is whether the Federal Government has the right under the Constitution to oblige individual citizens to buy health insurance. Since health care is not mentioned in the Constitution enacted in 1787, states are arguing that it is a matter for them to regulate. The Constitution gives the states rights for anything not explicitly allocated to the Federal Government.

Under the Constitution the Federal Government is given the right to regulate interstate commerce and since insurance is a product sold across states, supporters of the Bill are arguing that this supersedes all other considerations and allows Congress to enact its mandate. Indeed the Supreme Court has acted in a number of other cases to trump States Rights under this provision.

Justice Kagan

However the current Supreme Court is one of the most conservative in history, and recalling the 2000 decision on the outcome of the presidential election, one not afraid to appear political. Justice Kagan, who worked in the Obama Administration but not specifically on health reform as Solicitor General, has not recused herself from the decision. She has on other matters that have come before the court. Neither has Justice Thomas whose wife openly works with groups advocating repeal.

If the Court finds the mandate unconstitutional, the bill will not go away in its entirety. Provisions expanding access, like children staying longer under their parents’ coverage and eliminating denials for pre-existing conditions will remain. So will provisions improving quality and encouraging modernization in hospitals and record keeping. The problem is that, without the mandate, costs of the reforms will not get paid. The mandate is designed to expand the insurance pool and make sure that the overall risk, and therefore cost to the individual insurance purchaser, is as low as can be. The principle of group insurance is that the young help subsidize the old, the well help subsidize the sick, until their turn comes to move into those categories.

Justice Thomas

As the opponents of reform have no alternative proposal, a thumbs-down from the Supreme Court will simply force the topic of reform back to Square One. It will be a blow to President Obama, but also a problem for Americans needing some help paying the costs of their medical bills, whether by employers, insurance companies or the government. The public appears confused by this debate. Recent campaigning has definitely not helped. It is something to watch in the days ahead because it will affect you.

Tom Godfrey

About Tom Godfrey

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