Nel's New Day

March 28, 2012

Health Care and the U.S. Supreme Court

Filed under: Uncategorized — trp2011 @ 6:52 PM
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According to Sen. Ron Johnson (R-WI) the health care law debated for the past three days in the U.S. Supreme Court would remove our last “shred of freedom.” He evidently missed the piece about Virginia and other states already taking away this “shred of freedom” from women forced to have invasive ultrasounds before having abortions. Now that’s losing freedom! Doctors can no longer practice medicine in the way that they see fit. But enough about Johnson’s ranting on MSNBC’s Morning Joe Show yesterday and on to what’s happening with the health care act.

For the past three days, nine justices (maybe only eight because Clarence Thomas never says anything) have addressed the issue of whether the U.S. Constitution allows Congress to mandate health insurance for all when people have to pay for that insurance. Although the ruling is not likely until late June, pundits are trying to second-guess the decision.

One sure thing is that the justices are divided, but no one knows where the splits come. Chief Justice John Roberts questioned the attorneys almost equally. In The New Republic, Jonathan Cohen said that Roberts may not vote against ACA because he is less interested in limiting the commerce and “necessary and proper” powers than in rolling back the Voting Rights Act. (I’m hoping that he’s so embarrassed about his Citizens United ruling that he may be more rationale this time around.)

Three major issues are before the court. The first one is whether the justices will decide now or after the Affordable Care Act finishes going into effect in 2014. The discussion shows that they will most likely decide within the year rather than waiting.

“Severability” was the topic in connection with discussion about whether the insurance mandate violates the Constitution. Justices would have to decide whether they would overturn part of the act or the entire law. The Hill, a conservative news source out of D.C., reports that five justices on Tuesday appeared skeptical that the mandate meets constitutional muster, meaning the debate over whether the rest of the law must also be tossed could come into play.” The question is whether two other provisions would have to be scuttled if the court ruled against the mandate for everyone to have insurance: (1) the law requires that insurers cover all applicants, and (2)  the law bans charging higher prices to customers with pre-existing conditions.

The third issue is whether the entire law is constitutional. The 26 states that filed the healthcare challenge want Congress to dump the whole law. A third party argued that the mandate can be ruled against while the rest of the law remains.

The law’s Medicaid expansion was also a topic today. The same opposing 26 states used the term “coercion” to describe the new program because states couldn’t afford to give up the federal money provided for the program. Justice Elena Kagan asked Paul Clement, representing the states, if offering him a job paying $10 million per year is coercive because he would find it difficult to turn down that salary. “It’s just a boatload of federal money to take and spend on poor people’s healthcare,” Kagan said. “It doesn’t sound very coercive to me.”

What do women gain by the new health care act? Or what would they lose if the Supreme Court overturns the law? Before ACA, pregnancy, C-sections, domestic violence, and rape could be defined as pre-existing conditions;, meaning that health insurance could be denied for these. Insurance companies charge women up to 150 percent more than men; ACA made that illegal. Insurance companies now have to cover breast cancer screenings, cervical cancer screenings, domestic violence counseling and screenings, and other preventive care measures largely unique to women and therefore not considered important by many of these companies. And the measure that brought out the greatest resentment from men, women no longer are required to provide a co-pay for birth control.

Parents have also been highly grateful for another ACA provision: their children can stay on the parents’ health plan until the kids reach 26 years of age. Check out great graphics on how much the health care act has helped people already.

A few positive effects from ACA although the entire act has not gone into effect: 2.5 million additional young adults including 1.3 minorities have access to coverage; more than 50,000 Americans, a nearly 400-percent increase during one year, have enrolled in the Pre-existing Condition Insurance Plan; 350 new community health centers in 2011 provided health care services to 50 million Americans in medically underserved areas; these centers created almost 19,000 jobs; almost 4 million seniors saved more than $2.1 billion on prescription drugs; cracking down on fraud and abuse in Medicare saved $4.1 billion in 2011; the ACA eliminated lifetime coverage limits for 105 million Americans; 42 states, D.C., and five territories improved their rate-review processes; and insurance companies must spend at least 80 percent of premium dollars on medical expenses or rebate money to patients–$323 million in 2012.

Perhaps more optimistic than I am, over 50 percent of former Supreme Court clerks and lawyers who have argued before the court think that the individual mandate will be upheld, and only 35 percent expect it to be struck down. If the court strikes down the individual mandate, only 27 percent in the survey said they believed the court would strike down the entire law. The results from an American Bar Association survey was even more positive. ABA reported that 85 percent of their respondents predicted that the court will uphold the law.

Lower court rulings don’t predict how the U.S. Supreme Court will decide, but they may provide a guide. Only three of the 12 appellate judges who have reviewed the law have declared it unconstitutional to require all Americans to have health insurance. Not one single appeals court judge has said the entire law must be tossed out, the position advocated by Florida and 25 other Republican states leading the legal assault.

In June, Judge Jeffrey Sutton, a former clerk to Justice Antonin Scalia, in a lengthy opinion for the 6th Circuit Court of Appeals in Cincinnati, upheld the law and concluded that Congress’ powers under the Commerce Clause give it very broad authority to regulate markets, including health insurance. Using similar reasoning last week, Judge Laurence H. Silberman, an influential conservative and longtime Scalia friend, also upheld the law in an opinion for the U.S. Court of Appeals for the District of Columbia. Silberman explicitly rejected the partisan attack on the law, writing that criticism of the mandate “seems to us a political judgment,” not evidence it violates the Constitution.

Both Silberman and Sutton cited Scalia’s 2005 opinion upholding strict federal regulation of marijuana in the case of Angel Raich, a Californian who used home-grown marijuana to relieve her pain. “If Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption,” Sutton wrote, “it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care.”

Conservatives should be very concerned about what would happen if the court does overrule ACA. Without the Affordable Care Act, they would have less to fight in the November elections, just as donations for conservatives would go down if abortions were made illegal.

Recent polls have indicated that the majority of people would like to see at least part of the Affordable Care Act be struck down. This can be expected after the Republican presidential candidates have spent months spewing their opposition to ACA. Even more interesting, however, is a Bloomberg News poll regarding the reason for the justices’ decision. While 17 percent of the respondents declared that the case would be determined “solely on legal merits,” 75 percent think that the Supreme Court’s health care decision will be influenced by the justices’ politics.

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