Two federal district court judges had already upheld the constitutionality of the Affordable Health Care Act’s provision that would require most Americans to purchase health insurance beginning in 2014. But it was the third federal judge’s ruling last week on that mandate, this time rejecting the constitutionality of that provision, that puts the far reaching health care reform law most directly on track to a Supreme Court showdown. If the judge’s reasoning were to prevail, it would shake the foundation for insurance reforms that are fundamental to the reform act.
Judge Henry E. Hudson ruled that the Constitution’s Commerce clause, which gives the federal government broad authority to fix rules for interstate commerce, does not provide authority for such a mandate. Allowing Congress to assert such authority, the judge wrote, “would invite unbridled exercise of federal police powers.”
A narrow conservative view
That’s an exceedingly narrow view. Rendered by a Republican appointed jurist, it smacks more of a political slant on the Commerce clause than a judicially founded principle. Republicans have given the same dire warning over the decades about the creation of Social Security and Medicare, which require national payroll taxes, and the government’s approach to ending desegregation and other discriminatory practices, and establishing mandatory civil rights laws.
In that vein, any progressive act for the common good — in this case, the rational provision of more equitable health insurance rules and the pursuit of affordable health care for 50 million uninsured Americans, and tens of millions more who are underinsured – cannot be allowed if it can be seen to be an intrusion on “individual liberty.”
In the case of health insurance reform, however, the insurance mandate is hardly an onerous or socialistic intrusion. It merely propels movement toward the sustainability of a robust, yet more equitable, private health insurance market.
Sliding down the slope
As it is now, most uninsured Americans cannot afford insurance even though they need it. Millions more do not purchase insurance because they find it so expensive that they are willing to stay uninsured as long as they remain nominally healthy, never mind the risk of serious random illnesses or accidents.
Unless the uninsured can be required to carry insurance, and are able to do so without discriminatory treatment or outrageous costs for pre-existing conditions, insurance companies will not take in enough customers and revenue to create the mass market that makes insurance more affordable for all.
Getting more people insured so that broad-based insurance rates can be lowered is at the core of insurance reforms that bar unreasonably low coverage limits and exclusions for pre-existing conditions. Along with other cost-efficiency reforms, a mandate for individual purchase of health insurance, or a national health care tax, must be used to close the insurance gap if America is going to escape the tragic burden of excluding so many millions from insurance and regular, preventive health care.
Otherwise, the unavoidable costs of treating a rising number of uninsured and the underinsured will continue to soar. Those costs, in turn, will continue to be shifted in part to taxpayer-financed programs, and in part to the ever sky-rocketing premiums of the insured population.
The Affordable Health Care Act tackles this broad national problem in a far less intrusive fashion than the formation of a pure government-run system. In seeking a compromise with Republicans – who never accepted it – the Obama administration and congressional Democrats opted for creation of private-company insurance exchanges at the state level to offer insurance for all, rather than creating a public option, like a Medicare for all.
Absent the public option
Most progressive health care reform advocates favor the latter. Making an expanded Medicare available for all Americans who would want to sign up for a Medicare fee would put the sort of competitive pressure on price-gouging insurance and pharmaceutical companies and medical providers that is needed to drive down this nation’s runaway medical-cost inflation.
The private-company insurance exchanges that the reform act finally established are a poor second option, but even they cannot exist if the mandate to purchase insurance is set aside. If that happens, insurers would keep raising rates dramatically, and go back to refusing people with pre-existing conditions.
It is clearly in the national interest to create a more cohesive, broad-based insurance system that everyone helps finance – the healthy and the ill alike. In this view, a mandate to require purchase of insurance essentially substitutes for a national health care tax, like that for Medicare. The Medicare and Social Security tax mandates have stood up in the courts, and so should a mandate – essentially a health care tax – to buy insurance to make the nation’s health care system viable.
The cruel alternative
Unfortunately, Judge Hudson’s reactionary views lend fuel to the naysayers who would shamelessly dismantle health care reform and let 50 million fellow Americans go without insurance and basic care. It would also prolong the haunting costs of the ever-increasing numbers of the uninsured and under-insured, and exacerbate the ever-rising number of Americans who daily see their employer-provided insurance fall away, or their own insurance become unaffordable.
Americans who think it is a good thing for partisan politicians and politicized jurists to dismantle health care reform will rue the day they rejected reform, if not for themselves, then for their children, friends and loved ones. Americans are all in the health care boat together. Without reform and a comprehensive national plan to assure affordable health care, all Americans are equally at risk of the cruel alternatives of medical bankruptcy, destitution and needlessly early death.
That’s nothing to be proud of. America is now the only industrialized nation in the world without a universal national health care system. We can, and must, do better.