Susan Clark argues with another protester about the Patient Protection… (Kris Connor / Getty Images )
In their dissenting opinion Thursday, four of the Supreme Court's conservative justices wasted little time in revealing their exceedingly narrow view of the Patient Protection and Affordable Care Act. The first sentence by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. reads, "Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it."
Umm, no, that's not what Congress set out to do with the healthcare reform law. The goal was not just to increase access to care but also to improve quality, promote efficiency, shift incentives so providers and patients have a mutual interest in wellness, and slow the growth of costs that are draining the budgets of governments, businesses and families across the country. In short, the point was to overhaul the healthcare system, which is costlier and less effective than the ones serving just about every other industrialized nation.
Given that pinched perspective, it's not really surprising that the four (and Chief Justice John G. Roberts Jr., in a separate opinion) would see the individual mandate as Congress regulating insurance rather than Congress regulating healthcare.
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The distinction makes all the difference in the constitutional analysis. To these justices, the mandate is an impermissible requirement that people enter the insurance market. To the court's four liberals, by contrast, the mandate is a perfectly acceptable way to regulate how people pay for the healthcare they will consume at some unknown point in their lives.
One of those liberals, Justice Ruth Bader Ginsburg, argued that Congress, not the courts, gets to define the market that a law regulates. I can't say whether that's true, but in any event Congress didn't include any declarations in the act about its regulatory target. And when the decision as to which market is being regulated is left to the court's judgment, it's prone to being swayed by ideology.
More than a little ideology seeps into the dissenters' understanding of insurance, too. Consider this passage:
"Indeed, the main objection many have to the Mandate is that they have no intention of purchasing most or even any of such goods or services [covered by the government's new minimum insurance standards] and thus no need to buy insurance for those purchases."
Right. But the reality is, that's how insurance works -- it pools a diverse group in order to spread risks. And the "essential benefits" package called for under the act will be modeled in each state after the typical plan employers provide, not some crazy new collection of services that the federal government favors.
Perhaps the Supreme Court's insurance plan lets the justices choose not to be covered for the operations they don't believe they'll require or the treatments they don't think they'll need. Well, the ones who aren't on Medicare, that is. But the rest of us usually don't have that choice.
The conservative dissenters go on:
"It is true enough that everyone consumes 'health care,' if the term is taken to include the purchase of a bottle of aspirin. But the health care 'market' that is the object of the Individual Mandate not only includes but principally consists of goods and services that the young people primarily affected by the Mandate do not purchase. They are quite simply not participants in that market...."
Again, the cluelessness about health insurance is breathtaking. The point in having insurance is to protect against large unexpected costs -- expenses that just can't be predicted. The average person who obtains insurance doesn't suffer grievous injuries in a car accident, rip up a knee on a ski slope or get diagnosed with cancer. But insurance buyers don't know for sure that such horrors won't be visited upon them, and they're not willing to roll the dice.
The young people the dissenters are so concerned about are no better at predicting their medical futures. They may have better odds of avoiding chronic obstructive pulmonary disease or congestive heart failure, sure, but accidents, injuries, infectious diseases, cancers -- those can strike people of any age. According to Ginsburg, more than 60% of the uninsured see a doctor or go to the emergency room every year, and nearly 90% do so within five years. "Congress has no way of separating those uninsured individuals who will need emergency medical care today ... from those who will not need medical services for years to come," she wrote.
The dissenters' odd notion of insurance provides the foundation for their argument that the individual mandate stretched Congress' power to regulate interstate commerce to the breaking point. "If every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce," they write, "the idea of limited Government power is at an end."
But healthcare may be the only form of interstate commerce in which virtually everyone participates. Equally unusual is the fact that those who supposedly don't participate -- the uninsured -- still impose huge costs on the rest of the market. That's because they're guaranteed emergency care, generating billions of dollars in expenses that those with insurance have to cover. This guarantee of care allows for a sort of free-riding that is simply not available in the market for other goods, including the American-made cars or broccoli that opponents of the mandate like to cite.
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