Despite the controversy, both precedent and the circumstances surrounding the provision of health care services in the U.S. make the case that the Affordable Care Act, otherwise known as "Obamacare," is indeed constitutional.
Lawyers opposed to the proposed regulations argued before the Supreme Court recently that the federal government cannot require citizens to purchase health insurance. But holding that position relies on a belief that people without health coverage are not already "in the market," and thus have no impact on interstate commerce.
There are many ways to show that this is not true: Uninsured individuals receive emergency treatment, or are people who have lost their coverage temporarily (perhaps as a result of losing their jobs), or are citizens with pre-existing conditions who are actively seeking insurance (and being rejected). All of these cases, and more, affect the vacillating supply and cost of both insurance coverage and health care across the country, thus making it subject to regulation by Congress under the commerce clause of the U.S. Constitution.
As Jeffrey Toobin, who has written extensively on the Supreme Court and the U.S. judicial system, puts it, "The choice to forgo insurance imposes a direct cost on the taxpayers, who wind up footing the bill." And those costs are often enlarged because the patient has reached some serious, health-crisis status.
Furthermore, the Supreme Court itself has ruled repeatedly that Congress has the right to regulate economic activity within a state if those transactions affect the national economy. It has also ruled previously that laws can regulate the decision to refrain from making a purchase or transaction.
If the Supreme Court rules against this act, which is an attempt to start getting a handle on an industry that accounts for 18 percent of our economy, it would be a strange and willful action by the conservative justices — some of whom, ironically, have in the past criticized those among their colleagues who are viewed as "activist" judges.
Judges are not neutral observers. Just like the rest of us, they have experiences, opinions, ideologies and philosophies. Any competent, honest judge will not be afraid to tell you that.
They are, however, supposed to be skilled at managing and reconciling both the law and their personal viewpoints.
In my view, if the Supreme Court were to overturn part or all of the Affordable Care Act, its decision would reflect a willful blindness to the enormous national crisis in health care availability and costs, a crisis that, if unaddressed, threatens the ability of municipalities, states and the federal government to respond to their runaway debts and constrained budgets.
That the act be held constitutional is obviously an important requirement. But with the combination of perfectly valid legal arguments and precedents, and the long-building role of health care in weighing down the national economy, all buttressing Congress' action, and all providing a very real-world context pointing urgently toward the need for action; a Supreme Court decision against the act would look petulant, not wise. For what has been lost in all the focus (perhaps overblown) on the constitutionality of the new law are the actual provisions and benefits contained within the legislation.
First and foremost, although initially the act would require the government to spend more money ($1 trillion over 10 years) extending health coverage to those who cannot now afford it, the savings gained by requiring everybody to have insurance (even healthy people), and the savings from a host of insurance- and pharmaceutical company-supported reforms, would over 10 years be considerably greater than the costs.
We have forgotten that the whole point of the act was to address the exploding cost of medical care. In addition to the noble goal of providing health insurance to the 45 million Americans now without it, the law was designed to reduce health care's share of our total economic output.
For the truth is that the cost of providing health insurance is croaking municipalities and small businesses and crowding out their ability to provide other necessary services and functions.
The Columbia Journalism Review has estimated that, without health care reform, fully 21 percent of our economy by 2020 would be devoted to medical costs. In addition, the number of uninsured Americans would rise to 61 million, and millions more would become inadequately covered. Today, health care premiums are rising three times faster than wages.
The Affordable Care Act doesn't socialize medicine. Mostly, it enlarges the private sector's share of health care and, importantly, will attempt to achieve — through myriad reforms and improvements — somewhere between $2 trillion and $3 trillion in savings over 10 years.
People sometimes complain that the act is 2,400 pages long. But the health care system is complex and gargantuan, and touches every individual, home, business and government in America.
Throughout 2009, all parts of the private medical industry worked hard with Congress to identify how they could help to reduce health care costs. Citizens who are worried about the nation's economy should hope that the Supreme Court is living in that same economy.
• • •
Brian T. Watson of Swampscott is a regular Salem News columnist. Contact him at firstname.lastname@example.org.