The debate over President Obama’s health care reform law, argued before the U.S. Supreme Court this week, touches all kinds of complex concepts and fancy jargon: a mandate, a severability clause (or lack thereof) and the Commerce Clause, health care exchanges, over-taxation and underinsured, and even a donut hole.
But the central issue is this: Should the government, under threat of monetary fines, force Americans to buy health care from private companies?
The health care reform bill famously requires all Americans to obtain health insurance either through their employer or purchase it on their own. Anyone who refuses to follow the mandate would face government fines.
It would, I believe, be the first time in American history that the government required all citizens to buy a product from the private sector. (The often-cited car insurance and home insurance analogies don’t fit. More on that further down.)
Politicians on both sides are complaining about many of the other provisions too. Republicans don’t like the Medicaid expansion to cover more poor families. And many Democrats wanted a government-run insurance plan.
But, generally speaking, your opinion of the health care law generally hinges on whether you can accept the health insurance mandate.
There seem to be two camps. Some look at the prospect of providing health care to 30 million currently uninsured Americans, including millions in Texas, and at the success the system has had in Massachusetts, and conclude the mandate is worth it. Others see government overreach—an unprecedented intrusion on individual liberties that can’t be justified no matter how many more people gain health insurance as a result.
No matter what you think of it, the mandate does set a dangerous precedent. As I wrote more than two years ago when Congress was debating the mandate:
“What items in your life does the government require you to purchase from a private company?
“I’ll venture a guess at the answer: Nothing.
“Car insurance, you say? Not really. You’re required to buy it only if you have a car. You still have the choice whether to buy a car. No car, no insurance. Same with home insurance. You’re still choosing to buy a home.
“In other cases, the government mandates something but provides the means. For instance, you’re required to educate your child, but the government provides a system of free, public schools.
“Nowhere in our lives does the government mandate that — no matter what — we must buy a product from the private sector.”
That may be about to change, depending on how the Supreme Court rules. The justices heard arguments over the mandate for two hours this morning—the second of the High Court’s three days of oral arguments on the law. As the New York Times reports, the conservative justices posed probing questions about the health care mandate.
“’Can you create commerce in order to regulate it?’” Justice Anthony M. Kennedy asked the lawyer, Solicitor General Donald B. Verrilli Jr., only minutes into the argument.”
“Chief Justice John G. Roberts Jr. asked if the government could compel the purchase of cellphones. And Justice Samuel A. Alito Jr. asked about forcing people to buy burial insurance,” according to the Times.
I won’t venture a guess on whether the mandate is constitutional or how the court will rule.
But if the court does strike down the mandate, we also may lose the most popular provisions in the law such as the ban on denying coverage due to pre-existing conditions and allowing dependents to remain on their parents’ plans up to age 26.
The insurance industry accepted these provisions in exchange for the mandate. The industry claims it can’t afford to insure people with pre-existing conditions without the added revenue from the many new customers the mandate would deliver. If the mandate is struck down, then perhaps insurance companies will again deny coverage because of pre-existing conditions.
Is that worth it?
Unfortunately, we’ve been forced into this choice by the bill that Congress and the White House designed. By maintaining the private insurance system and by refusing to implement a public option, the designers of the law had little choice but to require all Americans to buy insurance.
We’ve been forced to decide which principle is more important: basic civil liberties and freedom from government telling you what to buy or providing health care to tens of millions.
It’s a tough call, and it’s what made today’s Supreme Court argument so fascinating.