The intriguing Supreme Court decision

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Category : Medical Rants

I have favored the individual mandate throughout the process.  Like most observers I had no clue whether it would pass constitutional muster.  So having the Supreme Court affirm the right of Congress to create an individual mandate and "tax" those who do not participate becomes a victory.

Of course the victory is intriguing.  Having read many editorials this morning, I have found no consensus on what the ruling really means.  One should not fall prey to bashfulness on such an issue, so I will proffer my take – borrowing much from other pundits.

To remind readers, I favor the individual mandate because we already have established that physicians and hospitals cannot refuse to provide care, regardless of ability to pay.  As an academic hospitalist, I take care of just the patients who will benefit from the individual mandate.  Moreover, we must remember that those of us who have insurance are currently subsidizing the hospital care of these uninsured patients.  

Chief Justice Roberts defined the penalty as a tax.  Every pundit has an open on why he did that.  The best reason that I have read is that he has a strong belief that the judiciary should respect the legislative branch.  He seems to want to avoid striking down laws, and seems to look for ways to support the legislature.  But then my opinion has as much value as any other.

The Medicaid decision strikes a blow for states' rights.  The Court removed a penalty that they considered draconian.  Now states can choose to expand Medicaid (with great financial help from the Federal government) or refuse to expand, depending on their local calculations.  No longer does the entire Medicaid program in a state depend on accepting this expansion.

Both sides won in this decision.  Clearly upholding the individual mandate allows the US to approach universal health care.  Universal health care is such a worthy goal, that we must applaud this victory.

At the same time the Court cautioned Congress that they can no longer use the "Commerce clause" to tell states what they should do.  George Will: Supreme Court gives conservatives a consolation prize:

The big challenge now becomes implementation.  We should all challenge Congress to address the other major issues of health care that they ignored in this bill:

  1. Malpractice and tort reform
  2. Our payment structure – starting with SGR
  3. Increasing primary care
  4. Making high-value, cost-conscious care the norm rather than the exception

Comments (6)

Whatever good may come of the law, and their certainly may be some, there are two immutable facts and one likely fact.
the two immutable facts are:
1. Congress has imposed a new tax in an uncertain environment
2. Government is now inextricably hooked into healthcare in every way. This never turns out well in the long run.
Likely, not certain
3. There is no good guarantee costs will come under control
The first ominous suggestion that this may not be good for patients or doctors is right here: 
http://theunionlabelblog.com/2012/06/29/rep-jan-schakowsky-says-doctors-should-unionize/
 
But maybe I'm wrong.
 

I think that if you try to look for coherence in Roberts' opinion – the thread that ties everything together – you'll come up with a lot of frayed ends. In my opinion, Roberts wanted to lay the foundation for a number of novel legal theories, approaches to the Commerce Clause and Spending Clause that may either become the cornerstones of future shifts in how the Court approaches legislation, or will be forgotten if the court returns to the approach of the past 70 years. It is odd that he chose an expansive interpretation of Congress's power to levy taxes in order to 'save' the legislation, when he could have avoided that simply by joining with the four other justices who wanted to uphold the law and applying standard Commerce Clause analysis. I would be surprised if the Court follows that interpretation in future cases – see Richard Epstein's analysis ( http://www.nytimes.com/2012/06/29/opinion/a-confused-opinion.html ) – but I don't think Roberts expects it to do so.
From a constitutional standpoint the Medicaid decision was bizarre. Essentially Roberts put himself in the position of arbiter, assuming the role of assessing when the modification of a federal program is transformative such that Congress can be deemed to be creating a different program rather than continuing the prior program, and creating a new rule that if the modification is transformative Congress must give states the opportunity to continue the former program. (Never mind the administrative burden that can create for a system like Medicaid). Conservatives have traditionally railed against that form of judicial review – where a court sits as a substitute legislature, reviewing the legislature's political and economic determinations, rather than basing its decision on the law.
More than that, Congress has the right to terminate Medicaid. Following the termination of Medicaid, Congress would have the right to create a new program called "Medicaid II" and invite states to "take it or leave it". To conclude that Congress cannot exercise through implicit action the same powers it could exercise through explicit action puts form ahead of substance.

I don't see that Cory's link about whether physicians should unionize is either ominous or has anything to do with the ACA. Another perspective:  http://www.kevinmd.com/blog/2007/05/should-doctors-unionize.html ; and another http://www.uapd.com/all-doctors-need-a-union/ .

By doing nothing to support primary care, the ACA is speeding up its demise. That the primary care societies so uncritically supported the ACA and got nothing for their membership in return is just another indication of their incompetence.

"I have favored the individual mandate…"
Why? I'll ignore the fact that the individual mandate was yet another violation of the enumerated powers spelled out in the Constitution. In and of itself, the individual mandate is bad policy because it requires too much health insurance. A mandate requiring everyone to have catastrophic coverage health insurance would make sense. One that requires Cadillac coverage health insurance does not.
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"Universal health care is such a worthy goal…"
I get annoyed whenever I read such nonsense. We already have health care available for all. It may not be perfect, but it's there. What you are referring to is federal government single payer health care financing, which is not the same thing as universal care. If you get your wish, you will discover that everyone will be able to get delayed, mediocre health care administered by clinicians who are more bureaucrats than care-givers. Perhaps a long visit to England would change your mind.
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"…Both sides won in this decision…."
Not hardly. First, there were more than two sides. Second, those of us who favor minimal government lost big time. The opinion now gives Congress a green light to write laws that financially penalize anyone who fails to perform an activity it favors. I foresee much mischief from this.
The majority opinion of the Supreme Court was a joke. The five justices had to close their eyes and ears to the facts that the ACA legislation, Congressional discussions of the legislation, Obama's public statements, and the written and oral arguments of the government attorneys in previous federal court cases and in this Supreme Court case all stated that the penalty for not purchasing an approved health insurance policy was NOT a tax. The justices once again twisted meanings and fractured language to legalize what is constitutionally unacceptable (as they blatantly did with the Kelo eminent domain decision in 2005).

Aaron:
You don't see anything suspicious in one of the most liberal Democratic members of Congress calling for physicians to unionize the day after the health care bill is passed?
What could that possibly mean in terms of politics? Why would she do that?
And for the record I was a member of a house staff union –  which is completely different from a physicians'  union- house staff are employed for a couple years at the most.  Regardless of what it means for doctors and politicians, a physicians union would be a bad thing for patients in the long run. Physicians are professionals (their oath is to patients), at least now. What happens as a result of this law is anyone's guess.
 
 

It seems that many physicians in the US have the delusion that a single-payer system (this is in fact what many mean when they talk about "universal" health care)  will solve their health care problems and that it is the correct thing to do from an ethical/societal point of view.
From a practical point of view, however, it will have disastrous effects. For patients, there will be long waiting lists (take a look at UK or even Sweden, the waiting period to have a  consultation with a specialist or have a surgery is considerably longer than in the US) and provision of care will deteriorate immensely (look at countries like Greece and Portugal where the hospitals/health centers frequently run out even of sutures/ gauzes). Not to mention that inevitably there will be rationing of care.  For doctors, there will be a sharp decrease in salaries, both for primary care physicians and, to a greater extent, for specialists. This will  have a huge impact in the quality of doctors produced, in Germany, for example, the brightest students do not go to medical school any longer. Most worrisome, primary care physicians tend to adopt a bureaucratic mentality and lose their motivation for continuous development.
But the greatest problem with a health care system like the NHS in UK, as many of you seem to advocate, is a conceptual/ethical one. It assumes that health care is a right and not a responsibility. This mentality, expanded in other aspects of life, will lead to an entitlement society of apathetic citizens who expect everything to be taken care of by the state. This is already happening in Europe, even in the relatively more successful Nordic countries. It is surprising to me, why would you ever want to adopt a system that has already started collapsing. So, as a friendly cautionary advice from a physician in Europe, examine in more detail the real advantages/disadvantages of a "universal" health care system before committing yourself to sth that may prove a colossal mistake.

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