Injustices and the mandate

March 29, 2012

Alan Maass analyzes the challenge to the health care law before the Supreme Court.

BARACK OBAMA'S health care law was debated in front of the U.S. Supreme Court this week, with the main focus on an issue that highlights the most fundamental of its many flaws--that the law puts the interests of the private insurance companies ahead of people's right to health care.

The challenge to the law is being driven by Obama's Republican opponents. All but one of the 26 state officeholders who joined together in the main lawsuit are members of the GOP. The Republicans did everything they could to stop any reforms when the legislation was being debated, and now they're trying to undo in the courts anything they failed to block in Congress.

But don't let the health care law's rabid opponents fool you. Even if it survives the Supreme Court intact, the Patient Protection and Affordable Care Act (PPACA) won't create a more just and equitable health care system.

The law's most helpful provisions, such as long-awaited regulations to prevent insurance companies from excluding the very people who need health care the most, were compromised again and again during the process of writing the law. What positive effects remain are outweighed overall by measures that benefit the insurance industry at the expense of ordinary people--especially the individual "mandate" to buy insurance that is at the heart of the challenge to the law before the Supreme Court.

The U.S. Supreme Court

People who oppose the Republicans and want to see the broken health care system reformed might assume they should rally behind the Obama administration and its law.

But the arguments made in defense of the PPACA by liberal and progressive supporters show just how far they have accepted an assumption that both Republicans and Democrats agree on--that a health care "reform" law must preserve the profits of the private insurance industry, even if that means punishing millions of people who desperately need access to quality care.

Deborah Burger, co-president of National Nurses United, summed up the reality: "Whether the Court overturns part or all of the law, or the Affordable Care Act remains fully intact, we will not have universal coverage, medical bills will still push too many Americans into bankruptcy or prompt them to self-ration care, and insurance companies will continue to have a chokehold on our health."

That means the struggle to make health care a right for all must continue--in the small fights in workplaces and communities against attempts to limit access to care and its quality, and in the broader struggle for a socialized health care system that would eliminate the rule of the insurance companies and the rest of the medical-industrial complex.

THE THREE days of oral arguments at the Supreme Court this week revolved around challenges to various parts of the health care law brought up in six different lawsuits against it, which the justices decided to take up together.

The most important is the so-called individual mandate, which requires most of the uninsured to buy private insurance policies by 2014 if they aren't covered in any other way--or pay a penalty on their taxes each year.

But there are other issues to be decided, including whether it's constitutional for the law to expand the Medicaid health care system for the poor, which is expected to provide for another 16 million low-income people.

A further complication is that if the mandate is found unconstitutional, the justices will have to decide whether other parts of the law are dependent on it and should therefore be struck down, too.

The Obama administration argues that the law's most important regulations on insurance companies--requiring them to cover everyone regardless of "pre-existing" conditions or characteristics like age and gender--would have to be scrapped, too, if the mandate goes. Republicans say that if the mandate goes down, every other provision should go down as well.

The justices are expected to deliver their rulings (if they do; another question they must decide is if it's too soon for the courts to pass judgment on the law since it won't be fully implemented until 2014) in June, giving Republicans and Democrats an issue to battle over in the 2012 elections.

The big question is the mandate. Both supporters and opponents believe the requirement that the uninsured buy private insurance is at the heart of the health care law.

The insurance industry agrees. From the start of the debate over the health care law, the insurance giants used a two-pronged approach to make sure their interests were served. Representatives of the corporations worked with the Obama administration in the early stages--and even more closely with Democratic members of Congress like Sen. Max Baucus--to shape health care legislation to their liking.

At the same time, the industry kept up a stream of criticisms of Democratic proposals and encouraged the Republicans' total opposition to all reform--including support for mobilizing the GOP base at events like legislators' town hall meetings.

The aim was to have it both ways--if the health care bill passed, it would be business-friendly, and if it lost, opposition to reform would have the appearance of a popular mobilization.

The insurance companies' attitude toward the Supreme Court case is not so different. If the health care law is struck down, they can go back to their old and profitable ways of taking money from the healthy and avoiding giving it to the sick. If the law is upheld, then the U.S. government has guaranteed them millions of new customers who will have to buy their product or else--not to mention an estimated $447 billion in taxpayer dollars funneled to insurers over 10 years in subsidies.

The worst-case outcome for insurers is a split decision--if the mandate is struck down, but the rest of the law, including the regulations that are supposed to stop them from excluding people from coverage, is left standing.

Why? According to the logic of the insurance industry, without a mandate to guarantee them that younger and healthier people will buy their policies, then only older and sicker people will buy them--and the insurers will have to cover them because of the new regulations. That's why, during the arguments before the Supreme Court, several justices repeated the same claim that dropping the mandate but keeping the rest of the law would "bankrupt" insurance companies.

It's twisted reasoning: The industry's greatest fear is providing health care coverage for people who are more likely to need health care. But those are the topsy-turvy priorities of a system built around maximizing profits--which in this case means taking in as much money as possible in premiums and paying out as little as possible in claims.

UNFORTUNATELY, YOU hear the same warped argument not only from the insurance industry and the Obama administration, but from liberal commentators justifying their support for the health care law's individual mandate. Legal scholar David Cole is a prime example. In the Nation, he wrote:

People would have a powerful incentive to wait until they get sick before they buy insurance, because they could not be penalized for doing so. Such "free-riding" would defeat insurance's purpose of spreading risk...[T]he right [to be covered without discrimination by insurers] afforded by the PPACA will work only if it comes with the responsibility to purchase insurance if you can afford it.

But the "responsibility" here is to keep a parasitic industry in business. That's been the problem with the Obama administration's vision of health care "reform" all along. Its primary measure of success--ultimately, it seems, even more important than how many people get coverage--is preservation of the insurance industry.

Given all that, it comes as no surprise that the idea of a mandate to buy private health insurance was developed by the conservative Heritage Foundation think tank in the 1990s--and promoted by Republicans during the debate about health care reform during the Clinton years.

It's also no surprise that the mandate is unpopular. Opinion polls consistently show majority opposition. For example, according to a Kaiser Family Foundation poll from last year, among all the major elements of the law, the mandate was the only one that people wanted repealed, by a strong two-thirds majority.

Clearly, opposition to the mandate doesn't just come from Tea Party fanatics. For example, last November, the same Ohio voters who overturned a Republican-backed union-busting law aimed at public-sector workers also passed a referendum to bar mandated health insurance. That result is in keeping with polls which show that among those who say they oppose the health care law overall, a significant minority think it didn't go far enough in providing coverage for the uninsured and putting controls on the health care industry.

What would the mandate look like in practice? In a discussion about the Supreme Court deliberations on Democracy Now! Dr. Steffie Woolhandler, cofounder of Physicians for a National Health Plan, described the consequences of the mandate in Massachusetts, where a health care law similar to the federal one was enacted in 2006--under then-Gov. Mitt Romney, no less:

[L]et me tell you the kind of health insurance that people have. If you go on the exchange website in Massachusetts and try to buy health insurance for someone my age, you're going to be taking $5,600 out of your pocket to pay the premiums. Then, if you got sick, you would have a $2,000 deductible. So you're $7,600 out of pocket before the insurance pays a penny. And you're mandated to buy that coverage; you don't have a choice.

And that description doesn't take into account the quality of the insurance people will be "mandated" to buy. Anyone who's ever battled an insurance company knows that along with high deductibles come limitations on coverage that leave even people who have insurance unable to get the care they need.

All this shows the bankruptcy of the Obama administration's approach to health care reform in the first place. The discussion began in 2009 with voices advocating a government-run, single-payer system excluded--and the administration bending over backward to include the health care industry as "stakeholders" in the process. Keeping insurance companies "at the table" became the priority, and the Democrats gave away one concession after another to do so.

This is what liberals like David Cole are defending when they advocate for the health care law, mandate and all--a "reform" that doesn't fix the system, that accepts the role of the capitalist market in health care, and that puts corporate profits ahead of people.

SOME OF the other issues at stake in the legal challenge against the health care law are more straightforward. The same lawsuit filed by the state officials claims that the federal government is violating state's rights by handing--in the words of Justice Elena Kagan--"boatloads of money" to state governments to expand the Medicaid program for the poor.

In this case, the Republican opponents of the law are taking aim at one of its positive provisions--though like so much about the PPACA, the Medicaid expansion has its own problems. For one thing, it's supposed to be paid for partly by cuts in the Medicare health program for the elderly, which will result in further deterioration of benefits there. And the plan to add more people to Medicaid comes as the program is being slashed at the state level, by governments struggling to close big budget deficits.

One other fact that barely gets mentioned in reports about the Supreme Court case is that a health care law which was supposed to provide universal coverage will fall far short from the start--as a direct result of the continued role for private companies. According to the Congressional Budget Office, 27 million people will still be uninsured in 2016, two years after the law is fully implemented.

Some liberal commentators who are critical of the mandate see a silver lining in the possibility that it will be declared unconstitutional. For example, former Labor Secretary Robert Reich argues that Obama should perform "a bit of political jujitsu" and use a Supreme Court ruling against the mandate as an opportunity to expand Medicare and make it available to all.

It might sound nice, but that's a fantasy. Obama and the Democrats made one concession after another to the health care industry to get the law enacted. They're certain to look for other ways to cater to the corporations, rather than take a tough line now.

Many people who have criticisms of the Obama health care law nevertheless believe it can be improved over time. But the experience since its passage is the opposite. At the federal level, and especially the state level, the health care industry is making sure the law's various provisions are implemented and interpreted in ways that make them even more pro-business.

The basic problem remains: The law preserves the dominant role of the health care industry. So whether the law is upheld or struck down or something in between, the insurance giants, big Pharma and the rest of the medical industry will remain in command--and so the crisis of the health care system will continue, with dire consequences for working people.

That means struggles for health care rights will continue to emerge, whether they start small in a single workplace or community, whether they are about single-payer systems at the state level, or they take up the broader question of the U.S. as a whole.

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