The High Court and Health Care

It will be months before the Supreme Court rules on the constitutionality of the Affordable Health Care Act, knows to its foes as “Obamacare.”  But with the opening of oral arguments today, the debate has heated up.

Opponents of the Act claim that its mandate that all individuals purchase health insurance is both an invasion of personal freedom and a fatal attack on federalism.  Indeed, Romney defends his version of an individual mandate, which he passed into law when Governor of Massachusetts, by saying a state can require its people to buy insurance, but that’s OK, because he wasn’t compelling everyone in the nation to do so.  People who didn’t like the state law could leave.  But if a Federal law imposes a mandate, people have no place to go, and so this eliminates the right of states and their citizens to make their own choices.

But this is ridiculous — the real agenda of opponents of the Act is simply to destroy Obama’s signature accomplishment because it came from Obama.  Otherwise, it is hard to understand why Republicans and Conservatives oppose a health care law that was in effect proposed by conservative think tanks — on the grounds that an individual mandate to buy insurance is the only way to guarantee that health care in the US continues to be provided by private insurers and providers, and not by the government.  In other words, Obama’s law was designed to preserve the US medical system from a government take over;  yet Republicans insist on labeling it a ‘government takeover of our medical system.’

In my view (note — I am NOT a lawyer), the Court has to rule in favor of the Act, including the individual mandate.  After all, if I buy health insurance here in Virginia, with a rider (which I have) for out-of-network coverage, then anywhere I go in the US, my insurance pays for needed healthcare for me.  That is a transaction in interstate commerce.  Yet the cost of that transaction (my insurance rates) do not just depend on a negotation between me and my insurance company (or more accurately, between my employer and other employers and the insurance company).  Hospitals all across the country that provide emergency care to the uninsured cover those costs by assessing higher rates for insurance on those who have insurance policies — to the tune of $42 billion per year.  So if $42 billion per year is paid in transactions that affect my purchases of insurance to cover medical care across the US, then interstate commerce is involved and the Constitution gives the Congress every right to regulate it, including requiring people who impose costs or participate in transactions to make appropriate payments to the providers of the goods consumed.

Of course, people can say “You can’t force me to buy health insurance if I do not want it.”  But that is not the issue — the question is whether people who do not buy health insurance can be prevented from consuming health care services.  And they cannot.  If they are in an accident, or victims of crime, and are rushed to a hospital, the doctors who have taken an oath to save lives cannot let them die, insured or not.

In order to make the libertarian case that it is a right not to buy health insurance, then the government would have to mandate everyone to wear a tag at all times denoting whether they have insurance or have a bond or other means on hand to pay for their medical care, or not — in which case they also would have to sign an agreement that the state will not deliver health care to them even in emergencies even to save their life.   I think that would be much harder for libertarians to swallow!

So the decision should be clear — a national health system in private hands requires all to pay if all are to be served, and a federal regulation to that effect is a normal act of regulation of interstate commerce.

Any other decision will be based on politics, not law.

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About jackgoldstone

Hazel Professor of Public Policy at George Mason University
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One Response to The High Court and Health Care

  1. Devin says:

    You make a better case than the solicitor general apparently did.

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