Tuesday, February 1, 2011

Judge Vinson's Ruling

I've spent several fascinating hours reading the decision handed down yesterday by Judge Roger Vinson of the U.S. District Court for Northern Florida. Judge Vinson concluded (1) that the individual mandate on which the Patient Protection and Affordable Care Act rests is unconstitutional and that (2) because, in his view, the entire law depends on the mechanism of the mandate, the law is itself unconstitutional. While I totally disagree with both parts of his conclusion, the opinion is well written and - at least to someone like me with limited knowledge of constitutional law - wonderfully educative.

In Judge Vinson's analysis, the case turns on seven words in Section 8 of the U.S. Constitution. Section 8 enumerates the powers of Congress. The third enumeration gives Congress power "To regulate Commerce...among the several states." What I found most educative in his opinion is the history he gives of the debate between more restrictive and more expansive interpretations of the commerce clause:
"...this case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system. In fact, it, is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government."
My response to the decision comes from (a) my understanding of the health care system and (b) my understanding of the ethical basis for universal coverage, and not from (c) any skill at arcane debate about the multiple court precedents.

It's hard for anyone who has worked in an emergency room or hospital to regard being uninsured as unrelated to "commerce." If I am not insured and am hit by a car, the Emergency Medical Treatment and Active Labor Act (EMTALA) requires the emergency room to treat me. And if I require surgery the hospital will swallow my debt unless I can pay the enormous bill. You will cover the bill I don't pay via your taxes and the increase in your own insurance premium my bad debt contributes to. If I have good manners I will thank you for your generous act of commerce! But if I'm focused on my own liberty, I'll be attuned to my right not to be insured, not your right not to have to pick up my tab. Commerce be damned!

Even if Judge Vinson agreed that lack of health insurance is a problem affecting "Commerce...among the several states," he comes down hard on the mandate as an unprecedented penalty for "inaction." Here are two key comments:
Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States. (p 38)

A statute mandating that everyone purchase a product from a private company or be penalized (merely by virtue of being alive and a lawful citizen) is not a “modest” addition to federal involvement in the national health care market, nor is it “narrow [in] scope.” (p 57)
As I and others have commented, the conservative attack on mandating purchase of private insurance, if successful, pushes the country towards the very thing the mandate is designed to avoid - tax supported universal coverage, whether by a single payer or a voucher system. In psychiatry that would be called "return of the repressed"!

For health professionals, having access to care rest on arcane arguments about commerce seems bizarre. The Preamble to the Constitution and the first enumeration in Section 8 both proclaim our responsibility, through the government, to "promote the general Welfare." Health is a core component of our "Welfare," and without health liberty rights mean nothing - we can't pursue or use our liberty from the sickbed. The Patient Protection and Affordable Care Act represents a serious effort to "promote the general Welfare" in the domain of health.

The fate of the reform law will ultimately play out in the Supreme Court. In addition to the dizzying interplay of precedents the justices will brandish against each other, I hope they give more recognition to the fundamental moral obligations for our society the Preamble to our Constitution asserts:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.


Mark said...

This is great. I hope a lot of people see it. It's interesting that the argument is sometimes made that the state requires someone to carry auto insurance, but only if you choose to drive; therefore (they say) the mandate to buy auto insurance has an opt-out that gives it a voluntary character that the health insurance mandate does not. (I believe the judge in the virginia decision that ruled the mandate unconstitutional made this argument). But the analogy would only hold up if someone who chose to forego buying health insurance would either a) agree to forego seeking and using healthcare services or b) agree to pay out of pocket, and the full fare.

If you see what I mean. The point being--which you make more clearly--is that using healthcare services without a means to pay for it is most certainly an "economic activity" with enormous implications that Congress can arguably regulate.

Jim Sabin said...

Hi Mark -

Good to hear from you. We definitely agree on this.

I don't have any inside political information, but I assume that the mandate mechanism is an effort to get the entire population into the health care "market" without doing it in the obvious direct way - via taxes. The only thing we, the body politic, hate more than being told what to do, is being taxed. My single payer friends think the Democratic leadership missed a chance to move to tax supported universal coverage. But my guess is that any proposal directly based on taxation would have crashed and burned in Congress.