In March of 2010, the Affordable Care Act, aka “Obamacare, was signed into law. The package of reforms polarized politicians and constituents alike for a slew of different reasons. While many conservatives claim that the laws unlawfully extend the reach of the federal government, many liberals who initially pushed for reform were dissatisfied by the holes in coverage that remained.

But that ain’t the end of the story.

Two years after the passing of the bill, and before the majority of policies were put into place, the legality of the law was questioned in front of the US Supreme Court. Specifically, the legality of what’s referred to as the Individual Mandate, a law requiring most Americans to have healthcare or pay a fine.

The reason that the individual mandate was first proposed is to lower overall healthcare premiums by cutting down on the cost of treating uninsured patients. Our society has deemed it morally right to provide emergency life-saving care to any person, regardless of whether they have insurance or not. These people are not just those who can’t afford insurance, but also those who deem that they don’t need it. These people are not necessarily irresponsible; many young people feel as though their good health negates any need to get insurance. But when a healthy 29-year-old on a budget gets hit by a car, the hospital foots the bill. Knowing this, hospitals increase their prices to incur those additional costs, ultimately making premiums for those who have healthcare insurance higher.

In a sense, the law is about personal responsibility.

Yep. It’s about doing your fair share so that others don’t have to support you.

Personal responsibility? Doing your fair share? That sounds a lot about something Republicans would support.

That’s because it was Republicans who initially proposed the idea in the early 1990s when the two sides were engaged in a similar argument as they are now. In the late 1980s and early 90s, many Democrats pushed for universal health care, and the individual mandate was one of the Republican responses. The conservative Heritage Foundation pushed Republican Congressmen to support the law, which would have put the responsibility of closing the coverage gap into the hands of the people rather than the government.

But now the law is in the hands of the Supreme Court.

The arguments used by the Obama Administration’s lawyers to defend the law are basically as laid out above. It is a necessary element of the bill, which attempts to close the coverage gap without the single payer system that was initially favored by many liberals. If a single payer system had emerged from the “2009 Health Care Reform Clusterfuntacular”, the individual mandate wouldn’t have been necessary. Single payer means that the government would essentially run the insurance side of healthcare. In this case, the government wouldn’t have to force everyone to buy healthcare, because everyone would have healthcare (This is often referred to as universal healthcare). Despite what many pundits and politicians against reform may say, single payer does not mean that the government would run the actual healthcare services. Hospitals and doctors could still operate for profit and conduct business however they liked (For the most part – the Affordable Care Act is a giant bill with many different laws in which I don’t have time to analyze separately), but they would send the bill to the government rather than an insurance company.

You’re getting sidetracked.

I know – back to the individual mandate.

So in summary, the Obama administration asserts that the mandate is a necessary aspect of the bill in its current form. It is an integral part of both lowering premiums and closing the coverage gap. They say that the mandate is legal due to the Commerce Clause of the Constitution (Article 1, Section 8, Clause 3 for all you nerds) which permits the federal government authority to regulate commerce that affects interstate commerce. 

But not everyone agrees.

And many have good reason not to. The reason that many are opposed to the mandate, and the reason it was brought before the Supreme Court, is that it may be a teeny tiny bit unconstitutional.

Opponents of the mandate argue that any law that requires people to purchase something or pay a penalty is unconstitutional. They say that although the Commerce Clause allows the government to regulate markets, it does not say that it can force people to enter markets.

So, essentially, the entire Supreme Court case is to determine whether it is or isn’t constitutional for the government to penalize American’s for not buying healthcare?

Yes, and both sides took different approaches to proving their side.

You can read the entire transcript here:

http://www.usatoday.com/news/washington/judicial/story/2012-03-27/t...

But because it’s pretty long, I’ll try to summarize.

The Solicitor General, Donald Verrilli, who defended the law acknowledged that in most cases the government cannot force people to enter a market. But the healthcare market is unique, because consumers often do not have a choice of when to enter the healthcare market. Even if they calculate that they are at a low enough risk that insurance is not worth it, there is still a possibility that they would need emergency care. A study brought up in the case showed that hospital bills in Maryland were 7% higher due to the hospital’s responsibility to incur costs of unpaid care. He argued that for this reason, healthcare is a unique industry. 

On the other side was Paul Clement, who argued on behalf of the 26 states that challenged the bill. He laid out several arguments for why the mandate should not be law, including a “slippery slope” argument amongst others. He solidified the point that people should have choice in what they buy, and it was illegal to penalize someone for not participating in a market. 

One interesting part of the arguments was that both Clement and the Justices seemed to regularly resort to comparisons to prove validity. At one point a Justice asked if it would also be legal for the government to force people to buy broccoli. Another asked if it should also be required that people buy burial insurance, so to not place costs on others when they die. Clement also made an extensive metaphor comparing this law with precedents set in the car and agricultural industry.

These examples did a very effective job of bringing into doubt the legality of the mandate. After reading the transcript, it was clear that those trying to prove the unconstitutionality of the mandate certainly had a case.

Now don’t get me wrong, using abstract comparisons to prove validity is one of my favorite things to do. But healthcare is not a topic that should be discussed in these parameters.

Behind all the arguments about legality, the comparisons, the debates about economic efficiency and personal freedom lies a key question that we need to address about healthcare before anything else.

Should healthcare be a privilege or a right?

That is to say, should equal access to quality healthcare be implemented like it is with education? Or is healthcare a product that is earned, like the products we buy everyday?

Should the rich have access to better care than the poor? Is a young child of millionaire parents more deserving of top-notch care than the child of a bus-driver? Is someone more or less deserving to live based on their income?

As a society we have decided that when it comes to emergency care, healthcare is a right. If a man was rushed into a hospital room with two bullets in his chest and nothing in his wallet, the hospital would save his life because it is the right thing to do. No one should die because they can’t pay. But people do die because they can’t pay. It is estimated that 18,000 people die every year for being underinsured or uninsured (http://www.allhealth.org/publications/Uninsured/toolkit_uninsured.a...)

Now is the part where I get all preachy.

If someone comes in to a hospital with a bullet in their chest, we take it out. If it’s a tumor, we say that they are going to find a way to pay or there’s the door. What difference does it make if they are dying in two hours or two months?

Do we not value the lives of our friends and neighbors, let alone fellow humans?

As a country, we spend hundreds of billions of dollars every year to make our military the most well equipped fighting force in the world. Billions of these dollars are spent to help make the lives of soldiers much safer in combat and non-combat situations.

I am not at all saying this money is wasted. The men and women who protect our country deserve to know that we value their lives and I’m willing to spend whatever it takes to protect them. But why will we not do the same for everyone else?

Government may not be the most efficient. But before debating efficiency, constitutionality, Commerce Clauses, or anything else, we need to ask ourselves one simple question: Should anyone ever die because they can’t afford to pay?

- Michael Clauw