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Thoughts on the Morning After the Supreme Court’s Ruling

Having read the majority and dissenting opinions in NFIB v. Sebelius over the last day, I am left with the following thoughts. First, all the Justices developed a deep understanding of health policy and the extraordinary challenges facing Congress in constructing health reforms across the minefield of conflicting interests.

Second, the dissenting Justices were intent on taking a wrecking ball to the entire ACA; the dissent itself is filled with surprising language about the goals and approaches of the Affordable Care Act.[1] Nevertheless the dissent, in its discussion on severability, shows superb understanding of the tough balancing act in enacting the ACA and the challenges in developing the interwoven trade-offs necessary to move the nation forward. On the facts, they were egregiously wrong about the lack of a need for coverage for those in their twenties.[2] This is the age when most women have their children, and health coverage is vitally important for young families.[3] This is also the age when many are testing the limits of young adulthood, and emergency rooms, trauma centers and urgent care centers therefore have lots of visits from “young invincibles.”[4] Finally, for a subset of the young, this can be the time of the onset of mental illness and substance abuse, and for those afflicted, their lifelong struggles are best mitigated and controlled when they are young.[5] For the healthy young, the ACA offers the option of a reduced scope of coverage – catastrophic coverage – and also authorizes insurers to set the premiums at 1/3 those of middle age and older Americans.

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[1] E.g. “Here, however, Congress has impressed into service third parties, healthy individuals who could be but are not customers of the relevant industry, to offset the undesirable consequences of the regulation. Congress’ desire to force these individuals to purchase insurance is motivated by the fact that they are further removed from the market than unhealthy individuals with pre-existing conditions, because they are less likely to need extensive care in the near future. If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws … spare neither sex nor age, nor high nor low, nor sacred nor profane.”
The Federalist No. 33, p. 202 (C. Rossiter ed. 1961) If you go back to the actual source and read it, you will see that Hamilton, a forceful advocate of a strong central government was rebutting not endorsing the dissent’s quote of his views of the Commerce Clause. The Federalist papers No. 33. usgovinfo.about.com/library/fed/blfed33.html 

[2] This strikes home on a very personal note. I would not be alive today, but for the extraordinary diagnostic efforts over many months of a very persistent physician when I was in my twenties. Just a few years later, I represented a young woman, just a few years out of college, who developed an unusual disease which left her debilitated and unable to work; Massachusetts had just terminated coverage for a group, often referred to as the MIAs (medically indigent adults), persons with no children living in the home, so she lost her coverage and access to medical care. Why did the state terminate this group? Because there was no federal Medicaid match. Under the ACA, Medicaid will now cover this group of eligibles. My father was in his twenties when he went over a mine in the war and would not have lived his wonderful life nor fathered his five children but for extensive efforts of the medical profession.

[3] One of my early legal clients who had been laid off and just got a new job came to my office saying, “I have a notice, we are being cut off Medicaid, can you help? I can get my care through the VA, but I have nowhere to turn for my wife and little kids since there is no coverage for us at my new job”. Why couldn’t they get coverage? Because Medicaid income eligibility stopped at an absurdly low level, which was linked to the state’s welfare levels. The ACA will increase the levels at which families and individuals can get some help to 400% of the federal poverty level – about $88,000 for a family of four.

[4] In California’s county health systems, roughly half the users and costs are for young uninsured adults, the other half are for older individuals with chronic illnesses. California counties spend on average $300 per year per uninsured on care to the uninsured. In comparison, the average California cost of health insurance exceeds $5000 per insured.

[5] The symptoms of mental illness often emerge in one’s late teens and twenties. For some, this is a lifetime struggle. For others, it may be co-morbid with substance abuse. The ACA will cover effective treatments for mental illness and substance abuse. California covers only mental health treatments for the severely and chronically mentally ill in its county mental health programs.

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