Health Care and the Supreme Court: Prepare Your News Dial

By  |  March 25, 2012 | 

To get a sense of why this case is different and will dominate the news cycle now until the decision in June, appreciate this fact: the time allotted for arguments—the period in which plaintiffs and defendants present their views to the justices—is six, instead of the usual one.  Moreover, the proceedings will transpire not just in one day, but three.  This is substantial.

There are several issues under debate, but the most significant, and the one you have likely heard about, is the individual mandate.  This is the requirement in the Affordable Care Act that all individuals without insurance must purchase it.  The alternative is paying a penalty (but not a tax)–and this is important.  Nevertheless I will revisit that below.  For most people, the mandate is not applicable, as folks with Medicare or Medicaid, or receiving insurance from their employer meet the necessary waiver requirements.

For the 5-10% of the population who don’t fulfill these conditions, they can purchase subsidized insurance, based on household income, through state-based exchanges that will come online in 2014.  The penalties for non-compliance are significantly less than the price of insurance ($695 to $2K, based on income), and failure to abide will not result in criminal penalties.

Why is this generating controversy?

Twenty-six states challenging the law (along with a business group and four individuals) see the obligation to purchase health insurance very differently than the federal government.  Here, very briefly is the distinction:

The Government: Under the rule of the Commerce Clause, the government has the authority to regulate interstate commerce.  Simply, if one state were to create trade barriers with another, the federal government can intervene given the authority granted it under the constitution.  This is one of its many enumerated powers.  Because healthcare is a service we all will require at some point, by definition, we are already participants in the marketplace, and it’s just the manner and timing of our entry when we fall ill.  Those electively out of the system oblige others to pay for their care, essentially free riding on the support of their neighbors.  It is more complicated obviously, but the crux of the matter is a functioning national market needs everyone in, and by virtue of its constitutional powers, the United States government can facilitate this process.

The States: The argument against the Commerce Clause speaks to a different principle, and one, no doubt, you have heard mentioned in the news.  It is the principle of liberty, and the forcing of citizens “inactive” in the health care marketplace to purchase a product they do not desire.  The opponents are not arguing against universal health care,* it is just the means used.  To put it bluntly, the right of the individual “to be left alone,” supersedes the right of the government to require purchase of an insurance contract.  The plaintiffs also question whether healthcare is different from any other good.  If forced to purchase healthcare, why not cars, food, or any other product.

Handicappers are predicting the Supreme Court will uphold the law. A majority of the public are critical of it, likely on principle, but the reasons why are varied based on both truths and falsehoods.

However, the opinions embedded in the case raise fundamental constitutional issues, and while not directly impactful on all of us, due to their nature, we have a vested stake.  They foster big questions, and that explains its “generational” character.  Additionally, given the polarization of our country, the outcome, while based on the Supreme Court Justices interpretation of law (hopefully not politics), does have implications for future policy and governance.  Think Citizens UnitedRoe vs. Wade, and Brown vs. Board of Education.  Yes, we are talking broad, and the decision will potentially alter how government oversees, or continues to oversee healthcare delivery.

Open your civics textbooks, because it will be that kind of spring.  Unless of course the Kardashians have something to say, then all bets are off.  LOL.  I think.

*Recall that Medicare is a universal (entitlement) program we all pay taxes into throughout our working lives.  The government uses a tax to finance that program (just look at your paystub deductions—1.45%), and it’s grounded in a bedrock constitutional principle.  That is altogether different than employing a penalty upon failure to purchase a private product, in this case insurance, to accomplish the same ends.



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About the Author: Brad Flansbaum

Brad Flansbaum
Bradley Flansbaum, DO, MPH, MHM works for Geisinger Health System in Danville, PA in both the divisions of hospital medicine and population health. He began working as a hospitalist in 1996, at the inception of the hospital medicine movement. He is a founding member of the Society of Hospital Medicine and served as a board member and officer. He speaks nationally in promoting hospital medicine and has presented at many statewide meetings and conferences. He is also actively involved in house staff education. Currently, he serves on the SHM Public Policy Committee and has an interest in payment policy, healthcare market competition, health disparities, cost-effectiveness analysis, and pain and palliative care. He is SHM’s delegate for the AMA House of Delegates. Dr. Flansbaum received his undergraduate degree from Union College in Schenectady, NY and attended medical school at the New York College of Osteopathic Medicine. He completed his residency and chief residency in Internal Medicine at Long Island Jewish Medical Center in New York. He received his M.P.H. in Health Policy and Management at Columbia University. He is a political junky, and loves to cook, stay fit, read non-fiction, listen to many genres of music, and is a resident of Danville, PA.


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