The high court's challenge

The high court's challenge

March 29th, 2012 in Opinion Times

The Supreme Court's dissection of the Affordable Care Act over the past three days was far more enlightening about the activist partisan bent of the so-called conservatives on the court, than it was about the sense of reason, the common good and the broad justice that is presumed to lie at the heart of the court's mission. Justice Antonin Scalia, regarded as the intellectual light of the conservatives' five member majority, made that dishearteningly clear with his witless comparison of the individual mandate to purchase health insurance to a mandate -- if the government so wished -- for Americans to buy broccoli.

The Justices were thought ready to debate the wisdom and correctness of a thoughtful application of the long-standing federal interstate commerce clause to bring order, humanity and fair market standards to an out-of-control, and frequently inhumane, American health insurance system -- a system that labels providing care a "medical loss" to its bottom line, and that has long used "pre-existing conditions" to deny care and let clients die.

Justice Scalia and other conservative justices made light of that core purpose. They also regularly ranged far afield from the core issue before the court: If the nation's health care system is required to provide costly care and stabilization to all uninsured comers -- victims of rock-climbing and motorcycle accidents, heart attacks and gunshot wounds, comas, crisis births and severe burns -- is it not reasonable under the commerce clause to impose a rational system that properly spreads the costs and burdens of mandatory care as equitably as possible.

Viewed in that respect, the mandate for all non-poor Americans under 65 years of age to buy insurance can easily be seen as a reasonable application of the federal commerce clause. If farmers can be told how much wheat they can grow to keep the agricultural commodities market stable, as the 1942 landmark ruling on the commerce clause held, why shouldn't citizens be required to purchase health care insurance on the grounds that virtually all Americans will at some time use the health care system, and that it's become their legal, fundamental human right to do so.

The Affordable Care Act, moreover, would provide significant subsidies, and health care equity, to both the near poor and to the broad middle class, many of whom are underinsured, or uninsured. Indeed, just 56 percent of American workers are offered a health insurance option by their employers. Many of those policies are skeletal, with extremely high deductibles and low coverage limits. Other Americans face unbearable exclusions for pre-existing conditions, or unaffordable policies, and more than 50 million Americans are uninsured, because Medicaid only covers the poor.

If the high court's pampered ideological conservatives cannot fathom the medical hardships that one out of three Americans face, or their high rate of personal bankruptcies due to medical costs, it should recognize the gross inequity of an American health care system that unlike all other advanced industrial nations, fails to provide a universal health care system that parallels our legal right to emergency care.

This conservative-dominated court also should consider its moral responsibility to honor the legislative process that finally enacted the Affordable Care Act, and that, in 2014, will provide sufficient subsidies to help most every American purchase health insurance. It also should respect the standard severability clause that would allow the other parts of the ACA to take place, including the creation of regulated state insurance exchanges that would give all Americans fair choices and minimum comprehensive benefits.

These exchanges would provide flat-rate premiums, multiple plan options, a floor on coverage, a complete ban on pre-existing conditions, no limits on annual and life-time coverage, and personal freedom, at last, to buy affordable care. The Supreme Court ideologues have no grounds to deny that legislative purpose.