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Posted by on Dec 13, 2010 in Guest Contributor, Health, Law, Politics | 0 comments

Curtains for Obamacare? Not Hardly

The ruling by Judge Henry E. Hudson that parts of Obamacare are unconstitutional has set off a wave of euphoria among opponents of the law who believe that the decision will make it impossible to implement the bulk of reforms contained in the bill.

At issue was the coercive requirement that all Americans purchase health insurance. It appears to me that the judge zeroed in on what the individual mandate truly represented:

“Despite the laudable intentions of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within constitutional bounds,” wrote Hudson, a George W. Bush-appointee.

“Because an individual’s personal decision to purchase — or decline to purchase — health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary” for health care, Hudson wrote.

Cuccinelli argued that the Affordable Care Act conflicts with the Virginia Health Care Freedom Act, which was passed by the state in anticipation of the passage of the federal law. Virginia’s law said that no individual mandate could be required. Hudson ruled that the law raised constitutional questions on Congress’ power to penalize people for refusing to participate in interstate commerce.

And that’s the bottom line; how, in a free society that historically values the rights and liberties of the individual, can government force people against their will to purchase anything? (The requirement for liability insurance for drivers is an entirely different matter because you can opt out of the requirement by refusing to drive. The only way to opt out of Obamacare is by refusing to breathe.)

While there is “severability” between health care reform and the mandate, there are many other parts of the bill that are independent of the mandate’s reach and will probably become law in 2014. The issues dealing with Medicare will almost certainly stay, as will the formation of most of the boards and commissions that will oversea the new regulatory regime of the health care industry. Individual states will still be able to open their Medicaid programs to the uninsured, although how they are going to pay for it is unknown. It’s even a possibility that Congress will go ahead and offer subsidies to people who wish to purchase health insurance but can’t afford it.

It’s hard to summarize what stays and what goes in a 3,000 page bill that few have read and even fewer understand, but I suspect this is a temporary set back for insurance reformers. Where there’s a will in Congress, there is usually a way and while the GOP is taking over the reins of power in January, the insurance crisis isn’t going away and will probably be exacerbated by this ruling. Once their constituents start screaming about double digit rate increases, a new way will be found to regulate the insurance industry in order to bring costs down.

Curious that the White House put out this fact sheet over the weekend in anticipation of this ruling and made this bizarre claim:

However, unless every American is required to have insurance, it would be cost prohibitive to cover people with preexisting conditions. Here’s why: If insurance companies can no longer deny coverage to anyone who applies for insurance – especially those who have health problems and are potentially more expensive to cover – then there is nothing stopping someone from waiting until they’re sick or injured to apply for coverage since insurance companies can’t say no. That would lead to double digit premiums increases – up to 20% – for everyone with insurance, and would significantly increase the cost of health care. We don’t let people wait until after they’ve been in a car accident to apply for auto insurance and get reimbursed, and we don’t want to do that with healthcare. If we’re going to outlaw discrimination based on pre-existing conditions, the only way to keep people from gaming the system and raising costs on everyone else is to ensure that everyone takes responsibility for their own health insurance. If we don’t, then we will go back to the days of allowing insurance companies to deny coverage to people with pre-existing conditions.

It was a given that a substantial percentage of the uninsured would “game the system” under Obamacare because the penalty for not purchasing insurance was far less than the yearly cost of premiums – even with the subsidies Congress was dangling in front of citizens. The “Young Invincibles” who would make up the bulk of uninsured who might be coerced into buying policies aren’t stupid and can probably add and subtract fairly well. Why pay thousands per year for a health policy when the penalty for not doing so would have been, on average, $325?

Perhaps the bottom line questions are, how coercive should government be? What’s the tipping point where someone draws the line and says, “This far no farther?” And where do the rights of the individual end and the “greater good” begin? It’s not really a question of whether government is able to do it; it’s a matter of whether government should do it.

There are alternatives to the mandate – including subsidies – as well as the Medicaid option for the poor that would take care of millions of Americans who want health insurance but can’t afford it. Other reforms involving a mix of the free market and government regulation would almost certainly slow the cost of health care and the rise in premiums.

Selling Obamacare as the only alternative to doing nothing was always more a political truth than any accurate reflection of reality. Now it’s back to the drawing board for at least some of the reforms contained in the bill.