“Don’t Pick Out Hymns For Its Burial”: Still Plenty To Watch For In Health Care Debate
I have a few quick thoughts on this week’s Supreme Court hearings and what it will mean for our coverage of health reform.
Most people in the courtroom (or people who, like me, listened to audio, read transcripts, wrote and edited a ton of copy and couldn’t avoid Jeff Toobin) ended up with the gut feeling that health reform is in deep trouble – that the court is likely to toss the individual mandate, some of the insurance provisions, and maybe a whole lot more. Maybe all of it.
But of course, we don’t really know what the court will do. Tough questions in public certainly let us know that all nine justices are not exactly the law’s biggest boosters. But what they will do, as they mull and debate behind closed doors, is not a sure thing. We can guess, but we don’t know. And we won’t know for about three months. (There’s a chance that it will be sooner – but traditionally big rulings come out at the end of the term. And this is a big, big ruling).
Remember the “Conventional Wisdom” was wrong before – wrong from the beginning. The CW didn’t think Obama was going to push for comprehensive health reform. The CW didn’t think he’d be able to enact health reform – particularly not after Scott Brown’s election. The conventional wisdom didn’t think there would be a fight about the mandate. Or that the mandate would end up in the Supreme Court. Or that it would be in deep, deep, deep trouble once it got there.
So what do we do for the next three months?
First of all, we are going to get spun – and the negativity about the oral arguments is going to help the anti-health law camp of spinners. (The “hey it’s hunky-dory, it’s all fine” advocacy world rings a little hollow at the moment – although they may turn out in June to be right.) Keep an eye out for that “the law is dead so let’s get real” drumbeat because if things are said often enough, in a media or political context, they can start becoming the new conventional wisdom and affecting how we report and write.
We might get pushed by editors to be more forceful about predicting the demise of the law (or the mandate) than we are comfortable with. Push back – you can certainly say there are real questions about the law’s survival. You can’t pick out hymns for its burial.
Watch your state. Are officials slowing down implementation? Not submitting grant applications for exchange planning when they were before, or not putting out bids for exchange IT teams, etc.? Are the implementers slowing down – and are the non-implementers freezing? How much catching up will they have to do if the statute is upheld – and they have to meet some exchange certification deadlines by Jan. 1, 2013.
Is the court situation affecting state politics – local, congressional, presidential. How?
Is anyone talking about state initiatives to fill in if the parts of the federal plan are punctured? For instance, if the federal mandate fails, there’s nothing to stop a state from passing its own mandate; the federal constitutional questions don’t apply. I suspect few states will do this – but I can think of a handful that might. (If this does start to bubble up in your state, please email me your coverage.)
What are the hospitals’ and insurers’ and physician groups’ contingency plans? Are delivery system reforms and innovations on hold – or is the assumption that they can either proceed without the federal law, or that the relevant sections of the law will survive
And does the public know what it wished for? It wanted health reform when it didn’t have it. Then it decided it didn’t like health reform when it got it. Do Americans really want to go back to March 22, 2010 (the day before President Obama signed it)? And do they realize they can’t; that the health system has changed? Do they understand that people who are getting benefits under the first phases of the law’s implementation could lose them? And that costs will rise, the numbers of uninsured (now somewhere around 50 million) will rise, and Congress – so polarized that it has trouble doing much more than renaming post offices these days – is not going to come swooping in with a pain-free bipartisan fix-the-problems-with-no-cost-or-dislocation make-everyone-happy solution.
By: Joanne Kenen, Association of Health Care Journalists, March 29, 2012
“An Alternative Legislature”: Judicial Activists In The Supreme Court
Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.
Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?
It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.
Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.
The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others — often taxpayers — have to pay for.
Liberals should learn from this display that there is no point in catering to today’s hard-line conservatives. The individual mandate was a conservative idea that President Obama adopted to preserve the private market in health insurance rather than move toward a government-financed, single-payer system. What he got back from conservatives was not gratitude but charges of socialism — for adopting their own proposal.
The irony is that if the court’s conservatives overthrow the mandate, they will hasten the arrival of a more government-heavy system. Justice Anthony Kennedy even hinted that it might be more “honest” if government simply used “the tax power to raise revenue and to just have a national health service, single-payer.” Remember those words.
One of the most astonishing arguments came from Roberts, who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited “pediatric services” and “maternity services.”
Well, yes, men pay to cover maternity services while women pay for treating prostate problems. It’s called health insurance. Would it be better to segregate the insurance market along gender lines?
The court’s right-wing justices seemed to forget that the best argument for the individual mandate was made in 1989 by a respected conservative, the Heritage Foundation’s Stuart Butler.
“If a man is struck down by a heart attack in the street,” Butler said, “Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services — even if that means more prudent citizens end up paying the tab. A mandate on individuals recognizes this implicit contract.”
Justice Antonin Scalia seemed to reject the sense of solidarity that Butler embraced. When Solicitor General Donald Verrilli explained that “we’ve obligated ourselves so that people get health care,” Scalia replied coolly: “Well, don’t obligate yourself to that.” Does this mean letting Butler’s uninsured guy die?
Slate’s Dahlia Lithwick called attention to this exchange and was eloquent in describing its meaning. “This case isn’t so much about freedom from government-mandated broccoli or gyms,” Lithwick wrote. “It’s about freedom from our obligations to one another . . . the freedom to ignore the injured” and to “walk away from those in peril.”
This is what conservative justices will do if they strike down or cripple the health-care law. And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 28, 2012
Justice Kennedy’s “Nuanced View”: A Bad Beginning And A Better Ending
The Constitution’s words enabling Congress to “regulate commerce…among the several states” gives the United States broad authority over economic matters — although non-economic regulation is far more suspect. Early in today’s argument, however, several of the justices appeared poised to impose an entirely novel limit on Congress’ authority — suggesting that laws which require, in Justice Kennedy’s words, an “affirmative duty to act to go into commerce” is somehow constitutionally suspect. So there were no shortages of pointed questions about the Affordable Care Act’s requirement that everyone either carry health insurance or pay slightly more income taxes.
There are two reasons why this requirement is necessary. The first is that, because the law prohibits insurers from denying coverage to patients with preexisting conditions, it must also ensure that healthy people enter the insurance market before they become sick. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers. The second reason relates to a problem with our health system that long predates the Affordable Care Act. Because emergency rooms must provide at least some degree of care free of charge to people who cannot afford it, these costs wind up being transferred to persons with insurance — driving up annual premiums as much as $1,100 on the average patient.
Initially, the Court’s conservatives appeared highly credulous of the plaintiffs’ false claim that upholding the health reform would necessarily enable the federal government to do absolutely anything. Solicitor General Don Verrilli addressed this question by explaining that the health care market is unique in that it is the only market that everyone inevitably participates in — we all get sick at some point — and that, because of health care’s sudden and unexpected costs, people typically pay their health bills through insurance. Thus, he explained, because everyone is already caught up in the health care market, the Affordable Care Act does not impose any kind of “duty…to go into commerce” — it merely tells people who are already in the health care market to make sure they pay for their health costs through insurance.
While Verrilli was still at the podium, the Court’s conservatives did not seem to buy this claim. A ray of hope emerged at the end of the oral argument, however, when Justice Kennedy expressed a somewhat nuanced view:
[T]he government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.
There’s a lot going on in this statement. On the one hand, Kennedy is clearly skeptical that, if the Court says this market is unique, the government won’t simply argue that the next market is also unique in the next case. On the other hand, Kennedy also appears sympathetic to the second reason why the mandate is essential — that the problem of uninsurance leads to billions in health care costs being transferred to other health care consumers. A young person who forgoes health insurance is “uniquely proximately very close” to affecting the health care costs of others, and that may be enough to get Kennedy’s vote to uphold the law.
The big loser in all of this debate, however, is the Constitution itself. The Constitution says nothing about unique markets. Or about the need to impose artificial Congress authority to regulate the nation’s economy. It simply says that Congress can “regulate commerce.” The idea that a law which regulates 1/6 of the nation’s economy is not regulating commerce is, frankly, absurd. Nor was there ever any risk that a decision upholding health reform would lead to all things being permissible. There are many things that are not commercial — federal murder laws, assault laws, child neglect laws or sexual morality laws, for example. A law regulating our entire national health care market, however, is clearly and obviously constitutional.
Justice Kennedy may inevitably vote to uphold the law — he may even bring Chief Justice Roberts along with him — but, whatever the Court does this term, it appears increasingly likely that we live under the constitution of Anthony Kennedy, and that we no longer live under the Constitution of the United States.
By: Ian Millhiser, Think Progress, March 27, 2012
“Ethically Ironic”: How Was Dick Cheney Able To Get A Heart While Many Others Wait?
Dick Cheney has just joined a list of high-profile people, including Steve Jobs, Mickey Mantle, Evil Knievel and David Crosby who, received a transplant and thereby created a controversy. Cheney received a heart on Saturay from an anonymous donor at Inova Fairfax Hospital in Virginia after a 20-month wait. What is controversial about that? Cheney is 71 years old.
He has been through numerous previous operations that indicate he has other serious medical problems. He has only been able to survive due to the implantation of a left-ventricular assist device (LVAD) — a partial artificial heart — that has kept him going long past the point where his own heart could have kept him alive.
Nearly everyone on an LVAD winds up getting sicker and sicker and, eventually, so sick that they come off the transplant waiting list because the risk is too great.
What starts as a “bridge” to a transplant when you get an LVAD can become, the more time that passes, a final destination — you almost always die with the device. So despite his age and health problems, how was Cheney able to get a heart while many others wait?
It is concerning that a 71-year-old got a transplant. Many of those who manage to even make the waiting list for hearts die without getting one. More than 3,100 Americans are currently on the national waiting list for a heart transplant. Just over 2,300 heart transplants were performed last year, according to the United Network for Organ Sharing. And 330 people died while waiting.
According to UNOS, 332 people over age 65 received a heart transplant last year. The majority of transplants occur in 50- to 64-year-olds.
Most transplant teams, knowing that hearts are in huge demand, set an informal eligibility limit of 70.
Cheney is not the first person over 70 to get a heart transplant. He is, however, in a small group of people who have gotten one. Why did he?
Cheney has an advantage over others. It is not fame or his political prominence. It is money and top health insurance.
Heart transplants produce bills in the hundreds of thousands of dollars. The drugs needed to keep these transplants working cost tens of thousands of dollars every year. Organ donations are sought from the rich and poor alike. But, if you do not have health insurance you are far less likely to be able to get evaluated for a heart transplant much less actually get a transplant.
The timing of Cheney’s transplant is ethically ironic given that the battle over extending health insurance to all Americans reaches the Supreme Court this week.
If the President’s health reform bill is deemed unconstitutional, those who are wealthy or who can easily raise money will continue to have greater access to heart, liver and other forms of transplantation than the uninsured and underinsured.
It is possible that Cheney was the only person waiting for a heart who was a good match in terms of the donor’s size, blood type and other biological and geographical factors. If not, then some tough ethical questions need to be asked.
When all are asked to be organ donors, both rich and poor, shouldn’t each one of us have a fair shot at getting a heart? And in a system in which donor hearts are very scarce, shouldn’t the young, who are more likely to benefit both in terms of survival and years of life added, take precedence over the old?
Let’s hope we get some answers to these tough questions as we watch both Cheney’s recovery and the fate of health care legislation that is intended to minimize the advantages that the rich now have over the poor when it comes to proven life-saving treatments.
By: Art Kaplan, PhD, MSNBC Vitals; Contribution by MSNBC News Service, March 25, 2012
“Exotically Countercultural”: The Unhappy Triumph Of The Marketplace
This objection to Obamacare’s individual mandate, by Jonathan Adler at the libertarian Volokh Conspiracy website, grabbed my attention:
“Virtually everyone” may acquire health care—but “virtually everyone” is not “everyone.” Most people may purchase health care at some point in their lives, but some will not. Some people will refuse to purchase health care for religious reasons. Some will not purchase health care because they are lucky enough not to need such care before a sudden death. Still others may decide not to purchase health care because they have chosen to remove themselves from commerce—consider a survivalist or other person who decides to live in a shack, growing their own food, and not engaging in commerce with others.
Consider Adler’s latter example: It strikes me that the vast majority of Americans would find the idea of “not engaging in commerce with others” to be exotically countercultural at best, possibly antisocial or even deviant. Such a reaction is symptomatic of the fact that the marketplace has long enjoyed pride of place in Americans’ moral psychology. “The chief business of the American people is business,” as President Calvin Coolidge famously said.
This ethos has made proper small-l liberals of us, hasn’t it? Americans have been taught by the libertarian right and the Clintonian middle to believe that a commercial relationship between nations—trade—is the only way to achieve lasting international harmony. At least before the great stock market crash of 2008, CEOs were like cult heroes in the popular imagination. From the pluckiness of Horatio Alger’s heroes to the theology of Joel Osteen, success in the marketplace has been seen as an outward confirmation of inward virtue and divine blessedness.
So it’s with some sense of schadenfreude that I see conservatives of the classical liberal variety chafing at the requirement to buy health insurance, calling it an attempt by Congress to “create commerce.” I’m fully aware of the contractarian basis for this objection: that a forced purchase is not a legitimate commercial exchange.
But the paleocon in me responds this way: This is the antitraditional bed you’ve made for us. Now lie in it.
By: Scott Galupo, U. S. News and World Report, March 27, 2012
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