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Reports

Will the Courts Wreck Health Care?

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Posted on May 12, 2011

By E.J. Dionne, Jr.

As if our political system was not having enough trouble already, we now confront the possibility that a highly partisan judiciary will undo a modest health care reform that is a first step toward resolving a slew of other difficulties.

As you watch the suits against the Patient Protection and Affordable Care Act work their way through the courts, consider that what you are really seeing is a great republic tying itself into as many knots as possible to avoid facing up to a challenge that every other wealthy capitalist democracy in the world has met.

Yes, all the others have decided that it’s both more just and more efficient for all its citizens to have health insurance. Countries do this in different ways. Some rely primarily on government, others on a mix of private and public resources. But given the costs of health care, even the most conservative governments have concluded that the public sector has to play a large role in its provision.

Not us. No, thanks to our own peculiar brand of conservatism that sees government-subsidized health care as a lurch down the road to serfdom and dictatorship, we kept finding ways to evade the problem—until last year’s breakthrough. But having failed to block health care reform in our elected branches of government, conservatives now hope that they can achieve their end through judicial fiat. They were against judicial activism until they were for it.

And we Americans are thoroughly inconsistent. We supposedly oppose government health care, yet Medicare—essentially a system of socialized insurance—is an exceedingly popular program. That’s why House Republicans are paying such a high political price for their efforts to dismantle it.

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Conservatives talk an excellent game about individual responsibility and the idea that there is no such thing as a free lunch. They have a point, which makes it all the more astonishing that their legal attack has focused on the health law’s requirement that all Americans purchase health insurance. (Mitt Romney actually understands this. That’s why he’s in the midst of trying to square his own support for an individual mandate in Massachusetts with anti-mandate orthodoxy among GOP primary voters.)

There’s a simple truth here. People who get sick and show up at emergency rooms will get care whether they have insurance or not—and they should. Under a law signed by President Reagan—the Emergency Medical Treatment and Active Labor Act of 1986—nearly every hospital is required to offer treatment to those in urgent need of help. The law stops private hospitals from “dumping” patients onto public hospitals.

The way things work now, the cost of treating those patients falls onto those who already pay for insurance, or onto the taxpayers. The mandate is designed to get everyone inside the system and have them pay something. The new law also provides subsidies for those who can’t afford the full cost of insurance.

In defending the Affordable Care Act before the 4th U.S. Circuit Court of Appeals in Richmond on Tuesday, Neal Katyal, the acting solicitor general, offered a defense whose breathtaking simplicity cut through all the nonsense being peddled by the mandate’s opponents. “Everyone is going to seek health care,” he said. “Nobody can know precisely when.” That’s why it’s important to establish a fairer and more rational way of covering the costs in advance.

Virginia Attorney General Ken Cuccinelli made a revealing argument against the mandate. He kept referring to health insurance as a “private product.”

There’s the rub. Health care is anything but a “private product.” The system is replete with cross-subsidies from hospitals, taxpayers and the already insured. There is no law requiring a car dealer to give you a new Lexus if you just walk onto the lot that compares to the statute requiring hospitals to treat you if you show up. We consider health care a largely public good, but we don’t pay for it that way. That’s foolish.

If a conservative majority on the Supreme Court eventually strikes down the individual mandate, it won’t change this reality. It will simply delay our day of reckoning as we keep trying to rationalize the mishmash that is our private/public health care system. Like it or not, collective provision will always be central to any humane health care system. Our competitors understand that. The sooner we do, the better.

E.J. Dionne’s e-mail address is ejdionne(at)washpost.com.
   
© 2011, Washington Post Writers Group


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By Travel Insurance USA, May 15, 2012 at 1:02 am Link to this comment

I think it is very important to get majority of the people covered by some form of mandatory insurance, and properly subsidized to ensure that the system does not break down due to abuse. We need to take charge of the situation to stop the people from overpaying, or paying due to the lack of coverage of other people, or we will never break out of the vicious cycle.

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driving bear's avatar

By driving bear, May 14, 2011 at 12:47 pm Link to this comment

when discussing the health care debate I always think back to an old song by Loretta Lynn called ” Everybody wants to go to heaven , BUT nobody wants to die”.

Everybody wants American citizens to have health care , But most people don’t want to pay for it. This may be sad but nevertheless it’s a fact. Maybe it’s a libertarian streak in me but I think you / me or any other American should be forced to pay for health care by the government in the form of taxes.

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By Traditional American Democrat, May 13, 2011 at 7:39 pm Link to this comment
(Unregistered commenter)

As a traditional Democrat, please, excuse me, but the health care ‘reform’
championed by the Obama White House deserves the death it will get.

Health Care: 72% of us supported “a government-administered insurance plan
—something like Medicare for those under 65—that would compete for
customers with private insurers.” Obama-led ‘non-reform’ gives private
insurers a 20% overhead for all government-mandated - i.e. ALL - customers.

Here’s how Obama responded to what American voters wanted:

Obama intended to avoid single payer and favored the Bob Dole/Mitt Romney
(Republican) approach - i.e. giving tax payer dollars to private insurers at an
overhead rate of 20% and mandating people to buy or be fined.

To help that along, Obama simply took the original people’s mandate and the
Democrats’ 60-year policy goal - i.e. single payer - and let it become the victim
of gun-toting Town Halls and Tea Party mau-mauing.

These activities were allowed to move forward without rebuttal by the White
House during the summer prior to Congressional debates.

The President’s absence from the scene effectively set-up the Max Baucus
silent ‘hearings’ in which no single payer advocates could be heard.

Toward the culmination of the process, Obama made some lame remark (“I dont
know what’s wrong with looking at a single payer”), attempting to show
‘support’, but knowingly and effectively putting a final spike in the heart of
sixty years of Democratic policy.

Obama effectively ash canned 60 plus years of traditional Democratic policy,
dissed the majority of Americans (Republican, Independent and Democratic) and
fashioned a give away to the insurance industry.

Today’s budget ‘debates’ are a re-play of the health care scenario.

While the Supreme Court (partisan or otherwise) can save us from Obama’s
Republican, corporate-based non-reform, no one seems positioned to save us
from Obama’s coming debt reduction “debate” and accompanying scam.

The debt reduction scam? Same as the health care non-reform scam, and,
again, Democrats are effectively out of the “debate”.

How do we know Democrats are out of the debate? Just listen to Timothy
Geithner (when he’s out of the country and thinks no one is listening.

Here’s what Timothy Geithner, Obama toady, Wall Street lick spittle and
America’s Secretary of Treasury had to say last month while he was in Europe:

?“When you have both the president of the United States and the Republican
leadership in Congress both embracing the same basic target for deficit
reduction…you have made a fundamental shift….”

Yep. And without any Democrats even in the sentence, much less in the game.

The Democratic “Progressives” are in effect the Traditional American
Democrats, while Obama is nominally a Democrat, but effectively a Republican.

So, excuse me, but I thank heaven the Supreme Court is going to overturn the
non-reform of health care.

I hope every Democrat votes against Obama’s nomination in 2012 - Obama had
a Democratic majority in the House, a Democratic majority in the Senate and
produced a Republican health insurance scam .....

I hope every Democrat votes for a challenger to Obama in 2012 and we are able
to run a real, actual, authentic Democrat (“But we’d lose the election” i hear
someone saying. Guess what, we thought we won the last one, only to find out
belated that we lost.)

Heaven help the Democratic Party, if this President is re-elected. I believe there
will seriously be a third Party and today’s Democratic Party will be the loser,
because they have ceased to represent the middle class.

It will take a long time for a third party to take hold, but no as long as cleaning
up the mess this President has made of our party’s opportunities.

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Lafayette's avatar

By Lafayette, May 13, 2011 at 2:53 am Link to this comment

SIMPLETONS

JM: And as for all of our competitors as EJ calls them - they are all broke too. just look at Greece Ireland, Spain and on and on and on

They are broke, are they? On and on and on? Whoa, horsey!

If the truth of the matter must be known, yes they are in a bad fiscal position. They went broke offering a Public Option National Health System that took care of its people amongst other things, such as generally profligate spending. There is no doubt about the fact that this crisis has been a wake-up call against Helter-skelter Government Spending for the countries you mention.

However, I put to you the following question. Which would you rather be:
A) Nationally “broke” because you have low personal-cost Public Option Health Care or
B) Either “dead” or “debilitated” because you haven’t one?

Simple choice for simpletons. Yes, people get sick sooner or later, mostly later as the incidence of sickness shows up earlier in the life-span, when you do not have Medicare coverage, due to obesity. Of which the US is rife.

POST SCRIPTUM

Aside from these three countries you mention, you will be pleased to know that Europe is doing well-enough. Because unlike Uncle Sam, we have here a Safety Net that helps break the fall rather than breaking your back.

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By Lafayette, May 13, 2011 at 2:39 am Link to this comment

SAD READING

The American Health Care Saga since the early 1900s is reviewed concisely here.

Over a hundred years of being screwed by Business Vested Interests, of the kind that inspired Fitzgerald’s Great Gatsby.

Great Rip-off, rather - all in the name of Free Markets and the profit-system, which was supposed to reward us by means of equity share-outs.

Where dividend payouts were diminished by Board of Directors Compensation Committees that assured first-cut off the top went to Management in Salaries and bonuses and perquisites. The stock-options did not diminish profits, but they milked prices when sold on the equity market - because we the dorks bought them.

There were two ways of offering HC during all those years:
* Unions negotiated fat HC-insurance that priced them out of the industry, like automotive. (At one time, each each car produced cost about $1200 more expensive just because of GMs Health Care Insurance.)
* America adopts a Public Option where prices are constrained by Federal mandate, meaning the cost-risk is spread across a larger national base. (This makes the cost more competitive, but not inescapable - which is why it must be bridled.) And which is what Social Democrats brought about in Europe upon its reconstruction from WW2.

MY POINT

But, no, we’ve seen where the first option inevitably gets us ... unemployed. And the second-option, adopted by most of the developed world (meaning Western Europe), which we cannot have either. Because it’s pinko-Commie Socialism and therefore the Devil’s Handiwork.

What a bunch of poor fools we, the sheeple, have been.

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John M's avatar

By John M, May 12, 2011 at 11:13 pm Link to this comment

“In defending the Affordable Care Act before the 4th
U.S. Circuit Court of Appeals in Richmond on Tuesday,
Neal Katyal, the acting solicitor general, offered a
defense whose breathtaking simplicity cut through all
the nonsense being peddled by the mandate’s
opponents. “Everyone is going to seek health care,”
he said. “Nobody can know precisely when.” That’s why
it’s important to establish a fairer and more
rational way of covering the costs in advance.”

Everyone? I know everyone breathes but is “everyone
going to seek healthcare?

And as for all of our competitors as EJ calls them -
they are all broke too. just look at Greece Ireland,
Spain and on and on and on

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By bsseely, May 12, 2011 at 10:25 pm Link to this comment

Wasn’t the individual mandate included to appease Republicans who feared that requiring health insurance companies to cover anyone, would not be profitable to the companies? If that one part of the law is struck down, doesn’t it end up hurting the insurance companies? How is this in Republicans’ best interest?

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By Lafayette, May 12, 2011 at 10:01 pm Link to this comment

A WORLD-CLASS HEALTH CARE SERVICE

db: That fact is that Obama has granted over 1000 waivers to the health care law and that a large number of those are to Obama / democrat supporters.

And you are overlooking this “one fact”: That kluge of a Health Care legislation was passed in its present form after arduous negotiation with Congressional Replicants.

There was no other way to pass it. The law is a palliative for Remedial Health Care, not a functional solution for both Preventive and Remedial Health CAre.

A functional solution is the one that provides a Public Service that offers universal HC to the general public (like Medicare), which mandates the prices of Health Care services that HC-providors may apply. Thus restraining the vertiginous increase in Total Cost historically (see here).

Obama could not get this Public Option through Congress, not even as a trial option.

You want to change the Health Care legislation towards making it more functional? Get your backside into a voting booth and vote for people who will represent your desire for a Public Option.

Instead of bitching-in-a-blog. Which is too easy. Far too easy ...

WORSE YET

The congressional representatives who refused the Public Option to their constituents are the same ones who benefit from it whilst they are working for the government. They just go over to Walter Reed hospital and check-in.

And it costs them between $100 and $300 a month.

Can’t believe it? Neither can I - so, see here. And here.

Both are works of Investigative Journalism at their best.

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By gerard, May 12, 2011 at 6:33 pm Link to this comment

Or will Health Care wreck the Courts? 

Whichever comes first.

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By Dave L., May 12, 2011 at 6:12 pm Link to this comment

Will the courts wreck healthcare? Healthcare as it is right now is already a wreck. A trainwreck. Letting lobbyists write the bills and then being told that we just need to pass the bill before we even know whats in it GUARANTEES disaster. We were not disappointed. Sickcare needs to be scrapped and rebuilt from the ground up. Enough of the theatrics and “historic” BS from the criminals in DC.

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driving bear's avatar

By driving bear, May 12, 2011 at 2:39 pm Link to this comment

To judge Obamacare you only need to remember one fact that Mr.Dionne overlooks ( on purpose if you ask me ).

That fact is that Obama has granted over 1000 waivers to the health care law and that a large number of those are to Obama / democrat supporters.

If this was a good law Obama would not have a need or desire to protect his supporters from it.

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By JDmysticDJ, May 12, 2011 at 2:34 pm Link to this comment

A simple truth, if we had had more Democrats and fewer Republicans over the last decade, we would have a Health Care Bill that better serves the people and a Supreme Court that better serves the people.

Better Democrats would better serve the people too, but anyone who thinks Republicans would better serve the people, had better have their head examined, and those who believe there is no difference between Democrats and Republicans on these matters had better be placed at the head of the line at the head examiner’s office. I’ll gladly pitch in for the cost of the examining.

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By purplewolf, May 12, 2011 at 11:17 am Link to this comment

Felicity: They don’t questi9on because they get some of their bonus spending petty cash from these same insurance industries, which under Bush profits went up over 400%. In other countries they cover health care for their people, but the insurance industries are non-profit, whereas in America we are the only country with a FOR profit insurance industry and that is the problem, making these companies non-profit is a starting point and one which we will never see as long as the crooks in congress stand there with their hands out and corporations continue to pay them.

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By felicity, May 12, 2011 at 9:44 am Link to this comment

Really, no argument in defense of our present health-
care system is possible.  We are 37th in the world in
the quality of our health care and we pay twice as much
as the rest of the world for it.

One would think that Republicans with their sudden
interest in debts and deficits would at least question
why we’re paying such big bucks for such a flawed
product.

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By Lafayette, May 12, 2011 at 9:24 am Link to this comment

HAPLESSLY INCOMPETENT

ED: But having failed to block health care reform in our elected branches of government, conservatives now hope that they can achieve their end through judicial fiat. They were against judicial activism until they were for it.

With the connivance of the Roberts Supreme Court, which practices its legislative-prerogative from the bench, why shouldn’t the twerps not even try?

Let’s remember that the decision allowing abortion was made by the Supreme Court (Wade, 410 U.S. 113, 1973) leaning towards the Left. So, tit for tat.

Whether Americans want Health Care or Abortion or Pro-Life or Cotton Candy is a decision that should be decided at the ballot-box and not the Supreme Court bench.

The Supreme Court interprets laws according to the Constitution and each time it goes beyond a very strict interpretation, as it did in the cases I cite above, then it breaks new ground. Which I feel is rightly the preserve of Congress, since the Constitution does not speak specifically about either Health Care or Abortion.

The Constitution speaks directly of basic Human Rights, but our founding fathers never even considered Health Care or Abortion within those terms. These matters are for voters to decide.

But therein lies the failure of representative democracy. If you want progress, don’t expect your elected officials to bring it - because they are merely a reflection of the Body Politic. Whazzat?

That is, the sentiment felt at the grass-roots. For the moment, on abortion and on health care, the silent majority is split down the middle.

So, legislation goes nowhere.

MEANING WHAT?

Meaning that until we change mindsets at the level of ordinary citizens any group movement - regardless of how conservative or progressive - will find it tough going.

Can’t agree because of the past thirty years since Reckless Ronnie took hold of the White House and convinced us that Free Markets were the answer to all our wants and needs? Do you still buy that argument - really ‘n truly, in your heart of hearts?

Yes, it is hard to understand that political sentiments advance in waves. Before Reckless Ronnie was LBJ and the Great Society - a swing Leftward that failed utterly and was easily reversed by RR. Now, after Lead-head, we are witnessing today the inability of the Right to capture Main Street’s attention with viable answers.

Negativism was never a good policy solution.

AN ELECTORAL MANDATE

So what’s next? Go figure ... but I suspect that BO & Co will get a mandate to swing Leftwards.

This recession is causing too much wreckage in human lives for that not to happen. Even if not intellectually bent towards the Left, viscerally that movement is being felt by millions upon millions of Americans.

In the midterms, we got so upset with our misfortune that we lashed out at our PotUS. Have we understood that that childish behaviour has had no real benefit, since the alternative is so haplessly incompetent at responding correctly?

I think so ... and that handwriting is all over the walls. Just look.

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By Blackspeare, May 12, 2011 at 8:39 am Link to this comment

The PPACA is based on the singular pillar of the individual mandate which is a virtual windfall for the insurance industry, which allows them to extends benefits family members from age 23 to 26 (actually it cost the industry little to do this) and eliminate pre-existing conditions for exclusion though there are loop holes for them to still do it.  If the SCOTUS overturns the individual mandate of the PPACC, the whole act crumbles for rates would sky rocket to cover the ensuing costs mandated by the rest of the act.  However, SCOTUS knows that should it overturn the mandate, then that practically assures Obama’s defeat in 2012——this should be interesting.

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By Memory_Hole, May 12, 2011 at 8:07 am Link to this comment

Excellent comments, prisnersdilema, madisolation, and Inherit the Wind. Yes, remember how every four years the frightened liberals tells us we just HAVE to vote for the Democratic presidential candidate, because otherwise those Big Bad Republicans will pack the Supreme Court with their reactionary judges?  Well, where were these supposedly rational, progressive Democrats during the hearings for Roberts and Alito?  They rolled over and voted for them. And Obama appointed Kagan, who commentators from left and right admitted moved the court to the right.  She supports all the new presidential powers that were arrogated by Bush and have been claimed as well by Obomber, in violation of our Constitution. Pathetic.

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By David Eason, May 12, 2011 at 7:41 am Link to this comment

Agreed, Pris.  My carrier has hiked rates successively in 2010 and 2011 by a compounded 50%.  At this rate, I will be forced to drop insurance—- the mandate be damned—- in the next 2 - 3 years, at the age of 60.  For all I can see, “Obamacare” is little more than a legalized and highly profitable fleecing of the public by the insurance industry.  Mr. Dionne needs to get outside the beltway, remove his head from his posterior, and talk to some real people.

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By prisnersdilema, May 12, 2011 at 5:29 am Link to this comment

How can you wreck something that’s a wreck to begin with? I’m sure the insurance
industry is quaking in it’s boots at the very idea that it’s multimillion dollar payouts to our
political class won’t come through for them.  To guarantee a revenue stream, and more
importantly guarantee the future of a system in which people have no recourse, that
profits by promoting their disease, that continues to reward murderous CEOs, with riches
beyond measure. That is the epitome of the criminal corporate class, that rules our
government with graft, then uses the political class as their tool, to insulate it from the
serfs down below.

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By madisolation, May 12, 2011 at 5:25 am Link to this comment

Obama’s Health Insurance Industry Giveaway & IRS-Enforcement Mandate demands that every citizen buy a private sector product. The health insurance industry then thanks Obama by contributing to his campaign coffers. What a great deal…for Obama, that is.
We need Medicare for All.

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By Inherit The Wind, May 12, 2011 at 4:36 am Link to this comment

Realize, if they succeed, they will next go after the law preventing “dumping”.  If the Paul Ryans of the world get their way, health care will only be provided for the prosperous and/or healthy.

The worst thing the Democrats in Congress EVER did was roll over to allow Bush to appoint both Roberts and Alito. With Thomas, Scalia and Kennedy, they will undo every forward decision of the USSC since Plessy vs Ferguson.

Was it Brandeis who said the Constitution was not a suicide pact?  Obviously the new Neo-Fascists are using it as one.

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By par4, May 12, 2011 at 4:26 am Link to this comment
(Unregistered commenter)

Dear Junior; If you haven’t heard the public hates The Affordable Health Care Act. Why do you think the loathed useless Democrats lost the House to the despised Republicans?

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By peggy, May 12, 2011 at 4:25 am Link to this comment
(Unregistered commenter)

Great article, but…

For anyone with a job or assets, but no health insurance, a trip to the ER is anything but free.  Bills will arrive, and then collection agencies.

Also, after the basic minimum is taken care of, e.g. the leg is casted, there will be a recommendation to seek further care with an orthopedist.  If one is without health insurance but not completely destitute, it will need to be paid for, with a credit card or loan if necessary.

How else do you think so many bankruptcies include health care debt?

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