The unprecedented three days
of Supreme Court deliberations over the constitutionality of the Affordable
Care Act, known by its critics as Obamacare – began with a question by
Justice Anthony Kennedy: “Can you create commerce in order to regulate it?”
There are 40+ million
Americans who do not have health insurance. Many are young and healthy and
are gambling they will not need expensive hospital care. However, they
consumed about $115 billion in health care services beyond what they paid
for, according to Solicitor General Donald Verrilli, who was defending the
The cost was passed on to
others in increased health insurance premiums, about $1,000 per year per
Obamacare proposes to require
everyone to buy insurance, or to pay a fine of at least $695 if they are not
poor, and up to 2.5 percent of incomes of wealthier people.
Twenty-six states challenged
the law, arguing that this “mandate” to purchase insurance is
unconstitutional. For the first time, Congress was attempting to regulate
inactivity by requiring individuals to buy a product in the private sector
just because they are alive.
Several Justices put the
issue in familiar terms. Chief Justice John Roberts asked, “Can the
government require you to buy a cell phone because that would facilitate
responding when you need emergency services?
Justice Samuel Alito
asked whether government should require people to buy burial services
insurance since everyone eventually dies, and shifts the cost to others, if
they haven’t saved for it. “Most people are going to need health
care…Everybody is going to be buried or cremated at some point.”
He noted that the
average estimated cost for health insurance unsubsidized by government or
employers will be $5,800 in 2016. However, young healthy individuals need
only $854 in health services. So the law is “requiring them to subsidize
services that will be received by somebody else.”
Kennedy, who is regarded
as the “swing vote” on the court, giving conservatives a 5-4 majority when
he votes with them, put the issue starkly in the opening minutes:
“When you are changing
the relationship of the individual to government in this…unique way, do you
not have a heavy burden of justification to show authorization under the
Verrilli, clearly over
his head, stammered at times. Conservative Justices were unrelenting,
though lightening their suspicions with humor.
Justice Antonin Scalia:
“Everybody has to buy food sooner or later…Therefore you can make people buy
broccoli.” But he was also serious: “The Federal Government is not supposed
to be a government that has all powers. If the government can do this…what
can it not do?”
Liberal Justices tried
to come to his rescue. Justice Ruth Bader Ginsburg noted that one hospital
“bills 7 percent more because of these uncompensated costs, that families
pay $1,000 more than they would if there were no uncompensated costs.”
That’s the kind of
answer Verrilli should have given, but did not.
A major issue is cost.
When Obama proposed the law, the Congressional Budget Office estimated its
10-year cost at about $950 billion. But that was because it included years
before new people were covered. CBO now says the 10-year cost is $1.75
Those who want to reduce
the yawning Federal deficits begin with striking Obamacare.
Parts of the law are
popular, such as the requirement that insurance companies cover everyone,
even those with pre-existing conditions. However, supporters say it’s not
possible to pay for that provision without the mandate that millions without
insurance buy it.
indicate that mandate is opposed by two-thirds of Americans.
There are two other
elements of coercion in the law.
The law would vastly
expand Federal funding of Medicaid, so that states could provide free
medical care to those with lower incomes, but a step above the poverty
line. However, if states refused to expand Medicaid coverage, they would be
forced to lose present Federal subsidies which states consider essential to
provide medical care to the poor.
That would impose
conditions “so coercive as to pass the point at which pressure turns into
compulsion,” argued the attorney representing states opposing the law.
The Obama Administration
has also written rules to implement the law that will force all employers –
even Catholic universities and hospitals – to offer free contraceptives,
sterilizations services and “morning after” drugs that cause abortions, even
though Catholics think they are immoral.
Dr. Richard Land,
President of the Ethics & Religious Liberty Commission of the Southern
Baptist Convention, joined with Catholic Bishops to oppose that provision:
“This is a debate about
coercion, not Catholics; science, not contraceptives; and freedom, not
fertility. This is about principle, not `pelvic politics.’”
The law should be ruled unconstitutional.