This is a column I wrote in April 2012, days after the U.S. Supreme Court heard oral arguments about the constitutionality of Obamacare’s individual mandate. Some of the same arguments are being re-litigated in Washington as congressional Republicans push for a replacement to the Affordable Care Act.
For all those who were disappointed in the tenor of the Supreme Court oral arguments last week – and the tact taken by some of the attorneys arguing the health care case – it surely seems that the highest court in the land, handling one of the biggest cases in recent history, should have raised the level of intellectual inquiry.
At one point, the court justices pondered the Affordable Care Act’s individual mandate within the context of the broccoli argument – which had already become a cliché among non-lawyers. That approach boils down a complex issue to this: If the federal government can force you to buy health insurance, can they then force you to buy a certain product, like broccoli?
Here’s the discussion I would have liked to have heard:
The market for health insurance is far different from buying products and, in fact, all insurance policies present much different dynamics than simply buying a vegetable. Everyone will use health care at some point; some will pay for it, some will force the rest of us to pay for it.
Have the justices considered that a healthy 30-year-old man doesn’t buy health insurance because he needs it now. He buys it because he knows that he will need it someday. That’s the obvious concept behind all insurance protections.
And, of course, a health care insurance “pool” that includes all the healthy young people in the nation keeps rates low by spreading the cost-savings to everyone.
That’s the reasoning behind state-mandated auto insurance. Without insurance, an auto owner, no matter how safe their driving habits, could be hit with huge repair bills at any moment. People do not buy extensive auto body repairs. They hope to avoid them. But they buy insurance to protect against that moment when extensive repairs are needed.
Has the high court considered that we are forced by banks and mortgage companies to purchase homeowner’s insurance. Is that unconstitutional? Or illogical? A person who buys homeowner’s insurance is not paying for elaborate home repairs. They hope to never suffer from a house fire or a tornado. But they are required to have insurance because they need to be responsible and to prepare.
When people buy life insurance they are, first of all, buying into the greatest Orwellian sales pitch ever devised by American companies. This is not life insurance, it is death insurance. So, who is happy about buying a product that provides nothing until you die? Are people who buy these policies wishing to die?
Insurance is for whatever may come – it’s not a product that you hold in your hand or use on a regular basis.
I wish an attorney who appeared before the court had presented this scenario:
Suppose a woman who has health insurance shops at the grocery store and buys a few items – but decides to avoid the broccoli. She goes through the checkout, leaves the store and decides not to head down the street to buy a gym membership.
As she heads to her car and steps off the sidewalk, she is hit by a bus and suffers serious injuries. When she stepped off the curb, did she, at that moment, make a decision to purchase health care? Of course not.
But she will receive medical care because of her insurance coverage. She previously demonstrated personal responsibility and planned ahead, creating a safety net for whatever may come.
She prepared for that bus accident, though she certainly did not wish for it. She did not happily buy emergency medical treatment provided in an ambulance. She did not pay for multiple operations. She did not purchase the high-tech machinery that helps the emergency room surgeons piece her back together.
A woman in that identical situation who lacks insurance will get all the expensive, quality care that the woman in the example above does. Except we all pay for the uninsured woman’s expenses — which would likely approach $100,000 — through taxes and higher insurance rates. This “uncompensated care” costs the nation’s families more than $1,000 a year through a so-called hidden tax.
That is the Feeloader Factor.
The individual health care mandate, which offers a financial penalty as an alternative, is based on the reality that one-fifth of the U.S. population is uninsured but hospitals are required to care for anyone who shows up at their ER door.
All of us, from our first breath, become part of our national health care system. It is not a free market system and never will be. We don’t make decisions on which hospital to use while we’re bleeding in the back of an ambulance. Our employers decide what insurance coverage most of us receive. And, in many cases, our doctors decide when we will use that coverage and to what extent.
Those who argue for a more individual, free-market approach have found that it is nearly impossible to “shop” for an MRI or a mastectomy. The person who purchases insurance is not buying a colonoscopy or an X-ray. They are paying for a financial management system that takes care of all the policyholder’s medical bills.
The uninsured also are interconnected within that system. They simply decide not to contribute financially. Many of those who choose “inactivity,” as the Supreme Court justices call it, are young people who seem healthy but are also the demographic group that most most frequently suffers serious injuries from accidents involving cars, motorcycles, bikes, Wave Runners or ORVs.
The conservatives at the Heritage Foundation who first devised the individual mandate many years ago saw it as complimentary to an “implicit contract” that all Americans accept. Someone who suddenly suffers a heart attack on the street and has spent their money over the years on various consumer products rather than insurance still receives medical care.
That’s the societal compact that binds us together and makes the claim of individual choice of insurance “inactivity” something that our Supreme Court should instinctively reject.
The alternative is an ideological system that deals with the uninsured in a simple manner: “Let ‘em die.”
Of course, the person who has no health insurance under that scenario probably also does not have death insurance. So, one individual’s irresponsibility, demonstrated at two levels, leaves one person dead and his family potentially destitute.
That doesn’t sound like the kind of American freedom that we expect our court to protect.