When Health Care Reform Goes to Court

The health care reform process is now 2 to 1 in federal court challenges after a federal district judge in Virginia ruled today that one of reform's basic provisions, that most currently uninsured Americans buy health insurance or face a federal penalty for not acquiring it, was unconstitutional. According to the NY Times: "In a 42-page opinion issued in Richmond, Va., Judge [Henry E.] Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution.... The judge wrote that his survey of case law 'yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.'"

That's a big loss for Obamacare's mission to provide coverage to the nation's millions of uninsured since "insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions." The pro-reform argument is of course that government can compel individuals to pay for coverage since their failure to do so ultimately rolls over the final responsibility for their health services onto other taxpayers.

Two previous federal court cases on similar grounds were decided in favor of the constitutionality of the federal mandate. All three judges declined to freeze implementation of the reform law pending appeal, so the process will move forward despite this decision. There are as many as two dozen other court challenges to the 111th Congress's health care reform law (the Patient Protection and Affordable Care Act of 2010, good luck with that. Try Canada Health Act instead. Much easier read). Most legal analysts believe it will take the Supreme Court to issue a final ruling on the law's constitutionality, but the process could take years to reach that chamber.

Those hostile to reform will consider this the first winning battle in a long war of attrition against reform. Proponents of the health care reform may be reassured that it is so far this one aspect of the reform package, Section 1501, the government mandated purchase of insurance, that has drawn the most judicial attention. Other provisions of the law mean that reform is already expanding the number of people who can receive preventive and customary care under Medicaid. At least 12 million of the estimated 47 million or so U.S. uninsured will come under the care umbrella via an expansion of Medicaid, for example.

In fact I find myself wondering if a strategic loss on this aspect of the reform movement might not be such a terrible setback if your true goal happens to be universal coverage that is practical and affordable. Wouldn't a prohibition on constitutional grounds on the mandate only make it more likely that the public option, an early casualty in the February-March congressional campaign, may find itself returned to the field (if I can belabor that poor metaphor another beat or two). That prospect was certainly on the minds at the folks at the Physicians for a National Health Program had this to say about today's ruling:

This is a serious challenge. Without the requirement that everyone be included, the risk pools are subject to adverse selection (only those with greater health care needs enroll) which cause them to become unstable as premiums skyrocket. Even if Section 1501 survives this challenge, there are so many other flaws in the PPACA scheme that we can never hope to achieve universality and affordability—the two reasons that prompted the reform process in the first place.

Instead of a protracted battle in the courts, our government should pursue an approach that remains within the constitutional boundaries of congressional power and would actually work to provide everyone with affordable health care—an improved Medicare for all. After almost half a century of success, only a fool would challenge the constitutionality of Medicare.

Following this reasoning, Obamacare's opponents should be careful what they wish for; today's "loss" could be the first step to the end of health care reform as we've known it but toward a single-payer system that would radically alter the reach, manner and cost of American health care.