We all need to be able to see a Doctor when we’re sick.
It’s that simple. And somehow, that fact seemed to elude much of our discussion around the Supreme Court oral arguments on the Affordable Care Act.
Legal arguments, particularly when they reach the highest court in the land, can be detached from daily life. But this may have been one of the more insensitive and callous cases we have heard in recent years.
A debate about the US Constitution’s Commerce Clauses can be a yawn. But in this case, the question of whether the Constitution allows our national leaders to have us pay a penalty or purchase health insurance can be a matter of life and death, particularly for people of color. Fifty million people are uninsured in the US today, even if they have a job. And insurance and accessible healthcare providers are two of the biggest contributors to our health.
Far too many people, many of them white men, are losing healthcare insurance as they lose their manufacturing jobs. This is commerce by most real world definitions. The market is the driver of healthcare affordability. People of color are worse off because of higher rates of uninsurance, despite employment, and because they have fewer places or farther to go to get care. Almost a third of Latinos and 20% of African Americans and 16% of white people lack a usual source of health.
Many readers know that people of color are more likely to suffer from chronic illnesses, disease and die younger than their white counterparts. One of the important things the Affordable Care Act does is attempt to address health disparities. The Joint Center for Political and Economic Studies reported in 2009 that reducing health disparities could prevent 85,000 deaths per year.
The central fight in the case has been the so called "individual mandate," which requires those who don’t choose to buy insurance to pay a token penalty on the annual federal tax return. Justice Scalia asked the US Solicitor General whether this would empower Congress to force people to buy broccoli. Walter Dellinger, with whom I had the privilege to speak with the day after arguments concluded, explains eloquently why this is a ridiculous "fear" from a legal perspective. The callous part of this line of questioning is the suggestion that it is more important to protect people from broccoli than from death.
Justice Scalia’s argument, echoed by Justice Alito and other conservative Justices in different ways at various points in the argument, suggests that it is wrong for elected leaders, elected by voters at state and local level, to promote healthcare through a small penalty. In other words, well over 84,000 people dying each year (that number does not include White deaths, so it must be much higher) is not as important as permitting people to stay out of the insurance market and, eventually, crippling the economy when they get uncompensated care.