Monday, October 18, 2010

Health Reform in the Judicial Branch

If you need a high school civics refresher, just follow the new health care bill. The bill passed Congress, was signed by the President, and literally minutes later the law had a number of lawsuits filed against it. Of the 20 lawsuits, the major theme deals with the Individual Mandate, where starting in 2014 most individuals will be legally required to have some type of health insurance. Opponents claim that the provision in 'unconstitutional,' as citizens should not be required to purchase a private product. Though logical on the surface, the argument falls short on a number of levels especially in terms of finances.

For one, there is a 1986 law on the books that any individual who enters an Emergency Room (insured or not) can not be denied care (Thanks Reagan!). And that care is always paid for. If the individual happens to be uninsured, all those emergency room costs are more often then not picked up by the taxpayers in the form of 'uncompensated care.'  Opponents to the provision should understand that if we the taxpayer are going to pay for it anyway, health insurance and prevention are FAR cheaper than the emergency room, where an infection treated early through primary care costs a fraction of the price. This is a clear-cut way to reduce the public burden. The argument could develop into 'well then maybe they shouldn't get treated if they can't pay up front', but this would brew a whole new set of moral and ethical issues that only a distant band of the political spectrum would support.

The second financial argument deals with the insurance market reforms. Almost everyone likes the idea of banning pre-existing condition exclusions and rescissions, and guaranteeing access to health insurance, but these are impossible without the mandate. The three legged stool of 1) insurance subsidies, 2) consumer protections, and 3) individual mandate can not be separated, at risk of creating adverse selection, where individuals who are guaranteed insurance will simply wait to purchase it until they get sick. As all Americans  access the health care system at some point in their lives, this would inherently upend the entire insurance model, which is designed to spread risk across a pool and not concentrate it. Google the death spiral to learn more.

Back to the lawsuits, I would bet my right tunica albuginea that one of them eventually reaches the Supreme Court (most likely the Florida or Virginia case, as the Michigan suit was thrown out last week). When it does, the lawsuit will most likely be dismissed for 'not buying insurance' effects our society as a whole given the assessed costs, in addition to the basis of the 'Commerce Clause' where Congress has the right to regulate commerce. The use of this Clause would be unprecedented in this sense as now 'economic inactivity' (NOT buying insurance) would be included, so we can expect an increasingly fierce debate as one or more of the suits makes their way to higher benches.


  1. I think you could realistically expect the Roberts Court to rule the individual mandate unconstitutional. Which as you correctly point out would wreck the whole deal. However if we continue to view reform as a process where we take two steps forward and one back, that might not be so bad. If the Democrats take back Congress in 2012, perhaps MediCare for All will be back on the table. We can dream, right?

  2. Adam, you are one in the first generation of M.D.'s entering this new revolution in healthcare having no contact with the previous imagining of the concept. Your enthusiasm for positive and longstanding action while entering this brand new reality bodes well for your generation of doctor. I'm proud to say I'll be watching the innovation you bring to the field of medicine closely.