The New England Journal of Medicine has a number of articles this week on the Affordable Care Act (ACA) and the upcoming elections. In a discussion of challenges to the constitutionality of the individual mandate, attorney Sara Rosenbaum compares the ACA to Civil Rights legislation. I hadn’t thought of it this way before, but it makes sense. (emphasis added)
[I]n a remarkable shift whose precedent lies in the watershed Civil Rights Act of 1964, the ACA transforms health insurance into a public accommodation. The Civil Rights Act barred private businesses such as hotels, bus companies, and restaurants from refusing to sell their products or services to customers on the basis of race. The ACA bars state-licensed health insurers from refusing to sell products to individuals on the basis of health status. This prohibition, which bars rescissions — the canceling of policies of people who become ill — and which applies at both the point of initial sale and the point of renewal, is binding on health insurers nationwide, regardless of whether they sell their products in the open market or through state health insurance exchanges. This basic reconceptualization of health insurance as a good whose availability is a matter of national public interest essentially frames health insurance the way the Civil Rights Act framed other business interests.
The arguments for the constitutionality of health care reform seem legally sound. But you have to consider the current politicization of the Supreme Court, which everyone seems to agree will ultimately decide on constitutionality. See this recent article by Anthony Lewis. (emphasis added)
[T]he Supreme Court of the United States today falls short of justifying its great constitutional function. A headstrong conservative majority is writing personal ideology into law. Freedom of speech is given novel and sweeping sway when the would-be speaker is a corporation but is denied when the speaker wants to try to persuade terrorists to give up violence for peaceful politics. The Court is so riven by partisanship that justices even pick their law clerks in ways influenced by ideology: one conservative justice, Clarence Thomas, has never chosen a clerk from the chambers of an appeals court judge appointed by a Democratic president.
Related posts:
Health care reform and the 2010 elections
The health care battle isn’t over
Civil disobedience and the individual mandate
The Supreme Court and health care repeal politics
Health inequities, politics, and the public option
Resources:
Image source: Pudgy Indian2
Sara Rosenbaum, J.D., A “Broader Regulatory Scheme” — The Constitutionality of Health Care Reform, The New England Journal of Medicine, October 27, 2010
Anthony Lewis, How the Supreme Court Should and Should Not Work, The New York Review of Books, November 11, 2010
First of all, let me state that I support universal health care. ObamaCare is very far removed from that. ObmaCare simply perpetuates the worst of the old system of private insurance, except now this new system is on steroids.
It is also interesting to note that the group who analyzed the law as to whether it is Constitutional seems to have looked at only one part of the bill. Or maybe that is what THC chose to look at for this post. (Canceling of insurance for those who become sick.) I don’t know.
But in any event, there are other reasons those of us who do not support ObamaCare have for not supporting it. For me it is the individual mandate.
I believe the government for years have been over stepping and over reaching on many issues of personal responsibility. The government is forcing us to do what it thinks is best. All in violation of the Constitution in my opinion. There are just too many mandates these days and I hope the Supreme Court votes to put a stop to it with this law.
The Democrats blew it big time. For the first time in decades they had all levels of government – White house, Senate, and House, all with wide enough majorities to pass something worth while. And instead of giving us something worthwhile, they gave is a piece of crap that made every one buy a product from an industry that Obama called evil.
That makes so much sense!!! NOT!!! The insurance companies are so evil I am going to make you, force you, under pains of the IRS, to buy their evil product. He blew a once in a lifetime opportunity to actually do something good. He is a weak, weak President.
Several years I chose, after a great deal of thinking, not to purchase health insurance any longer. I am self-employed, so do not have it through employment. The cost kept rising while the coverage kept shrinking.
Except for the year of my back injury, I have come out ahead every single year. In other words, my health costs are less than a year’s premium. I am very lucky. I am healthy.
Next year I turn 65 and Social Security will start taking out of my monthly payment for Medicare. That $90 or so will be a hardship on me. For me it is the difference between food and no food.
I never expected, it was not in my plans, to have the company I work for go belly up. I expected to have some income to supplement SS. But that was not to be due to the economy. And the economy has very few jobs above $8.50/hour. So things are tight for me. Of course, I know life is what happens to you while you are out making other plans. So I deal with it the best I can.
I am rambling, but you can begin to see the dilemma I face. If I were not 65, I would be one of those people who would chose to not purchase health insurance and go to jail where at least I would get a meal three times a day and basic health care for free.
Thanks for your thoughts, Roberta. I know way too many people in this country are suffering and feel a great deal of pain and anger at this time. I tend to be unreasonably idealistic myself — unreasonable given that we live in such an imperfect world.
I very much wanted the public option myself. Howard Dean came out and said it’s not health care reform if we don’t have the public option. Marcia Angell, a former medical journal editor whom I greatly admire, said the same thing. In the end, I agreed with Obama’s argument that it was better to have something and build on it than to have nothing. Now, of course, the distraction of health care legislation is blamed for Obama not making the economy his priority.
I was surprised to see, in reading about the election, that there is still a substantial group of Democrats who hope to see the public option revisited and enacted. It’s unlikely, I know, but it seems more possible to me with the existing bill in place than if we repeal it and start over with a Republican agenda.
I’m totally with you on how the government has been arguing for more personal responsibility and trying to force people to behave in ways it thinks best. This is one of my pet topics when it comes to health and medicine. I want to understand when it started and why. I’m about to put up a series of posts on a political change that happened in the seventies that relates to this.
But I do think everyone should have affordable health care. Should we have held out for something better? You may be right on that one. I guess I wasn’t convinced that the political climate offered much chance of that happening.
Maybe we should follow Linus van Pelt’s advice, which you quote today, and not discuss religion, politics and the Great Pumpkin. :-)
Health care is an emotionally charged topic. I know a lot of people who wanted something rather than nothing. But in these days of hyper-partisanship that may not have been a good idea.
Now the Rs are poised to blow Ds away tomorrow they will tear at the bill and there will be nothing left to salvage. Nothing would have been better than something so big. But Pelosi’s and Obama’s egos got in the way. They should have known once Scott Brown took Kennedy’s seat the nation was in mo mood for health care.
My wish was that Obama and the Dems pass a few smaller bills that took care of some of the most egregious issues with health care: portability, pre-existing conditions, canceling coverage to name a few.
These were things people were angry about and wanted fixed. The polls even during the last Presidential campaign showed that people did not want a big fix. They wanted small problems resolved.
Had Dems done that they might have been able to build on that later – like after jobs were created and the economy was better.
An omnibus bill during an economic crisis time was poor judgment and gave the Rs a huge opening.
I am still angry that it was Ds who killed the Clinton bill in 1992. Ds had a majority then too. But blew it! Senior Ds in the Senate did not want to give the hick upstart from AK who should never have been elected President in the first place, (I mean OMG, it should have been Ted, who also killed Carter’s plan too BTW.) and his wife a win on health care.
IT WAS DEMOCRTAS WHO KILLED THE 1992 BILL AND WOULD NOT EVEN LET IT GET TO COMMITTEE. DEMOCRATS. DIMocrats is more the truth! And all becasue they did nor like Bill Clinton.
If historian Barbara Tuchman was still alive she could do a whole new section for her book, The March of Folly, (a book that looks at cases where rulers and governments have pursued foolish courses of action despite all arguments to the contrary and all indications of disaster)on the Democrats and the issue of health care over the years.
As Will Rogers said, I don’t belong to any organized political party. I am a Democrat.
And as Pogo said a generation later, We have seen the enemy and it is us.
This and a dozen other reasons is why this once 44 year active in the D Party voter changed to a registered Independent in 2006 when Ms Pelosi would not do anything to restore my once Constitutional right to Habeas Corpus.
It’s rather ironic how Obama tried so hard to avoid the mistakes of the Clinton health care failure and ended up accused of going too far in the other direction.
I wasn’t closely following the Military Commissions Act in 2006, so I didn’t hear that Pelosi was to blame. I was so turned off by who was president that I more or less tuned out for a while there.
I am still a big Obama fan. He would have to do something really stupid to lose my vote. It’s not that he has my confidence, since it would be hard to be confident in anyone right now given the problems of the US and the world. But he has my respect. I don’t see anyone else out there I would prefer. And I sleep better at night knowing he’s the one making the difficult decisions.
I’m not looking forward to the election results tomorrow.