March 29, 2012

Column #1,596

Is Obamacare Unconstitutional?

By Mike McManus

            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 Administration’s law.

            The cost was passed on to others in increased health insurance premiums, about $1,000 per year per family.

            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 Constitution?”

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 trillion!

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.

Nevertheless, polls 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.’”