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Is the Affordable Care Act (un)constitutional?

Posted by Benjamin Schaefer, MD February 27, 2011 at 1:06 PM

Being a native of Germany, I have always had a different perspective on health care in the United States. Coming from a country with near universal coverage, and somewhat naïve, I was surprised that when we were offered health insurance upon entering residency, some of my future colleagues opted to not have coverage for medication. It seemed to me shortsighted, or at least risky, not to have the benefit and backing of a drug plan when one could easily pay hundred’s, if not thousands of dollars per year if one got sick. This was before Medicare part D, so imagine my surprise when I learned that Medicare did not offer many drug benefits either, in a population that almost certainly would need it.

I have lived here over a decade and have to come love the country and its people. However the attitude towards healthcare still puzzles me today, especially when the constitution is brought into it. In that context there has been much discussion if the constitution is a “living document” or not . What is a constitution? According to the New Oxford American dictionary, it is “a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed.” Its main purpose is to establish the basic principles of how a nation will function in its legislative, judicial and executive branch. It stands to reason that when we talk about a law being “unconstitutional,” it jeopardizes the very principle of the nations foundation.

Along those lines, I took a look at a few documents: the US constitution (1787); the French constitutions of 1791 and 1793; the German constitution of 1849 and 1949 (the latter being called the “basic law” – Grundgesetz –  rather than a constitution).  Many constitutions include a statement about  human rights, e.g. the rights of man and citizen in the French documents. The German basic law, undoubtedly one of the most modern constitutions in the Western world, created under the auspices of the Allied Forces including the Unites States, designates “inviolable and inalienable human rights” as “directly applicable law.” This is in direct reference to the UN declaration of human rights, ratified one year earlier in 1948 and endorsed by the United States, too (stating in paragraph 25 that “everyone has the right to a standard of living (…) including food, clothing, housing and medical care and necessary social services.

In contrast, when it comes to health care, Libertarian conservatives seem to put the individual above all (an interesting quiz to score your political orientation is here – it identified me as a liberal, which is not surprising).  A great example is Maine State Senator Roland Collins, who recently advocated to loosen seat belt laws because people should have a choice – in disregard of common sense, the widely accepted fact that seat belts save lives and that accident related costs, which are much higher when people do not wear seat-belts, are often borne by the public.

Now, for the question: is the Affordable Care Act (ACA) (un)constitutional?

1. Is there anything in the Constitution that directly mandates or forbids the ACA?

No. While the Bill of Rights is less explicit on human rights in comparison to the more encompassing and modern UN declaration, there is certainly nothing in it prohibiting the provision of health care. Interestingly, the preamble of the constitution tasks the nation to look after its citizens, to “promote the general Welfare.” The scope of this task also has been much debated, pretty much from the start. It is asserted that the preamble does not confer any power to the United States government and it is used to show intent and as a context for interpreting the constitution, but not for case adjudication.

However, even if the authors of the constitution has more explicitly outlined human rights, it stands to reason that they would not have addressed healthcare. The view on sickness was largely seen from a fatalistic viewpoint, and chronic diseases such as diabetes, if present, rarely required the resources they consume today.  Recall the times it was written in.  George Washington was 67 when he died, Thomas Jefferson even made it to 83.  In contrast,  as recently as 1850’s, the life expectancy for whites was ~ 40 years, for blacks 23!  The same decade, one in three black infants died, as did one in five whites.  While nowadays cardiovascular disease account for most deaths almost worldwide, in 1700 people mostly died of infectious diseases, while stroke and sudden death were rare (0.5% in an often cited list from London in 1700), as was cancer. Effective treatments were all but non existent. Surgery was feared not only because of lack of anesthesia (diethyl ether was shown to be effective in 1846, chloroform in 1847), but also because wound infections took their toll (Semmelweis “discovery” of antisepsis dates to 1847). We spent the majority of health care dollars on tests and treatments, as well as intensive care of the terminally ill  that has only been available in the last few decades.

2. Does the ACA shake the foundations of the United States?

This is the crux of the matter, aka “slippery slope” of the Broccoli Objection. The argument here is that the US government must not have the power to force us to buy health insurance, because it would open the flood gates to allow it to mandate almost anything and – oops – we suddenly have a potential totalitarian regime (OK, that is the short version). The counter argument, as far as I understand, is that the commerce clause, which allows Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes“, does apply to health insurance and that not buying it constitutes an activity that falls under the purview of Congress. One may argue that despite health insurance corporations being mostly national, insurance is not sold across state lines and  I can see that the argument that Congress can mandate such activity, given the ramification of a very federalist country, seems shaky (some further reading here and here). As I side note, I find it ironic that the Republicans, who oppose the ACA, argue to sell insurance across state lines….  giving the commerce clause more weight! While I believe that the Supreme Court will eventually uphold the ACA, this is certainly a nail biter.

3. Could NOT having universal health insurance be unconstitutional?

I think a compelling argument why we need universal coverage in the 21st century is that not having it creates social and economic injustice. Let’s not discuss for one moment who would be the payer, or if this should be regulated at the federal or state level, or if health care is a basic human right.  Let’s agree that there will always be people in a society that are less fortunate and will need public  assistance to survive and be provided with health insurance.

That being said, let us work through a hypothetical scenario:

John, Jack and Jeff (or if you want Jane, Julie and Jess) all work in the same state, for different companies. They all started to make about the same wage, $5.50/hr in 1970  and worked 40 hr weeks for 48 weeks a year (giving them about the average annual income then) and let’s assume their employers were nice enough to adjust their income for inflation. Roughly, by the end of a 40 year career in 2010, they make $61 k/year,  will have earned $1.4 Million over 40 years, and probably paid ~ $20,000 into the Medicare fund.  Now John’s employer pays for health insurance, Jack’s and Jeff’s does not, but Jack decides to buy insurance while Jeff does not. I do not have good data available for the cost of health insurance from 1970 to now, but he Kaiser Family Foundation states that in recent past health insurance cost has been about 16% of income for a single person. The calculation becomes difficult, but I estimate that the difference in take home pay over a lifetime between John and Jeff is probably ~ $200,000. If Jeff invested his 16% wisely, this could amount $1.5 million after 40 years, a nice nest egg ad probably enough to cover most medical expenses. However, Jeff may not have done that, but might have a bigger house, a nicer car, maybe send his children to a better school etc.  Until  any of them get sick, Jeff may think this was a smart choice. But say all three develop diabetes and heart disease in their 50’s. Jeff is less likely to seek medical care, and is less likely to be compliant with medicines prescribed, as he pays out of pocket (this has been well studied,  but if you do not believe it spend one day with me in the office). He is at higher risk for a heart attack, eye, nerve and kidney damage, ending up on dialysis, needing bypass surgery etc. Jack is also at disadvantage, because his health insurance premium are likely higher than John’s group based plan – he is more likely to chose a high deductible plan that costs less, and probably less likely to seek out the same level of care as John.

Long story short, our three average folks might arrive at their “age of universal coverage” by Medicare in very different condition. Before that age, people like Jeff were more likely to default on their medical bills. Once on Medicare, he is likely to have higher health care utilization. Meanwhile, not only did John and Jack pay higher premiums because health care institutions and providers recoup the money they lose on self-pay, Medicaid and yes, in some instances, Medicare patients. They also had less opportunity to build equity with the 16% “missing” from their paycheck. The whole overall cost increases when people delay to seek care, and eventually will lead to a decline in treatment options and availability, as resources are not unlimited. We already have a lack of primary care providers, particularly in rural areas.  This will only get worse, affecting everyone health.

Is that fair? It is one thing for everyone to pay into a health care system, to spread the risk and as a principle of solidarity, as some will use more health care than others through events that are largely outside their control. It is another matter that we allow a section of the population to forgo health insurance at the cost of others,  putting those others at an economic disadvantage. As demonstrated, the uninsured, average citizen may be able pay for their health care if they plan ahead. In practice, they don’t have the resources and likely will quickly deplete their saving once they get seriously sick, leaving it up to the public to pay the bill.

We recall that the Constitution guarantees not being “deprived of life, liberty, or property, without due process of law” (5th  and 14th Amendments).  I think not requiring everyone that is able to pay into the system seems to violate that, in principle. If Congress enacted a law that stated you had to pay extra for gas so some can choose to fill up for free, there would be outrage. Likewise,  if we had no health insurance, I think we’d have no (legal) problem. However, we now have some universal coverage (for the elderly, the disabled, the poor, and to some extend children and veterans), much of it publicly funded, which creates imbalance. Even Republicans and tea partiers do not want to get rid of Medicare.  As we almost all need health care at some point, a decision to not obtain the means to pay for it affects everyone. Who provides universal coverage and how it is provided becomes secondary. The ACA bring us closer to the goal. To assure equal protection,  universal health insurance seems not only humane and just, but may be necessary according the principles set forth in the very document the ACA is said to violate.

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