Advocates hail Supreme Court decision — worry at law’s shortcomings

9th July 2012   ·   0 Comments

By Paul Kleyman
Contributing Writer

(Special from New America Media) — Initial reactions to the U.S. Supreme Court’s general upholding of the healthcare reform law late last month ranged from the American Public Health Asso­ciation’s (APHA) heralding the decision to conservative groups, such as the Association of Ameri­can Physicians and Surgeons, decrying it as “a victory for those who want the Federal government to micromanage your life and medical care.”

Buzzing beneath the first bluster of reactions, though, advocates for uninsured or underinsured Ameri­cans are raising concerns about the impact — if any — of limitations on the high court’s decision.

Chief Justice’s Surprise
Swing Vote

First, here’s what the court decided: The 200-plus-page judgment breaks down into two major parts. In a 5-4 majority opinion written by conservative stalwart Chief Justice John Roberts, who became the surprise swing vote, the court upheld the law’s provision mandating that individuals have insurance or pay a penalty.

The decision states, “The Affordable Care Act’s [ACA] requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.”
Roberts thus accepted the Obama administration’s secondary argument that compelling people to buy insurance or be penalized was not tantamount, as dissenting Justice Antonin Scalia argued, to compelling citizens to buy broccoli for their health. Instead, says the majority, the penalty for not purchasing health insurance is no different from any other federal tax permitted by the U.S. Constitution.

The Chief Justice, however, sided with his four conservative colleagues on the administration’s primary argument calling on them to uphold the individual mandate under the commerce clause of the Constitution as federally protected interstate commerce.

This highly controversial part of the decision by the conservative justices throws into question 70 years of Supreme Court decisions affirming the government’s right to regulate interstate trade on such concerns as product safety, the clean air act and some worry the 1964 Civil Rights Act.. Seemingly obscure to most Americans, it was hotly argued by the White House and public advocates. But on this issue the five conservatives prevailed.

Even though, as ACA advocates asserted, factors determining health care costs are national and don’t stop at a state’s borders, health insurance, usually regulated by states, is a states-rights matter not subject to federal control. This part of the decision – although not in the headlines now – is likely to have a huge ripple effect on issues unrelated to health care.

Vote Limiting Medicaid Expansion

The court’s decision may well trigger long-term problems for lower-income, uninsured people in some states. The court voted* that the federal government can expand the Medicaid program when the full law goes into effect in 2014. But if state political leaders don’t want the new program and its rules for covering people adequately, the United States government cannot threaten to withhold payments they already receive or existing Medicaid services.

Although the ACA will now move ahead with the aim of covering about 31 million uninsured people, about 17 million are supposed to be covered under state-run Medicaid plans. Some experts believe that even staunch GOP governors and legislatures won’t pass up the generous payments to states set by the law. Under the ACA, the federal government will pick up 100 percent of the cost of newly insured people for the first few years and 90 percent after that. But others aren’t so sure.

For very low-income people in the Medicaid program, the federal government sets minimum rules for what a state has to cover and pays from 50-70 percent of the costs, with poorer states, such as Mississippi, receiving the larger subsidy. But states have had a lot of leeway to restrict eligibility rules, such as according to what illnesses people have or how severely impaired they are. Recession-strapped states have also been able to limit access to care, such as twisting a cap on how many prescriptions a patient needs at a time, regardless of their need or physician’s orders.

With the ACA, anyone now unable to get coverage need only show that his or her income is below 133 percent of the federal poverty line, that is, just a little above being the poorest of the poor. Under the Supreme Court’s decision, though, some health care advocates are asking whether, for instance, the 26 states with Republican governors — the same states who sued the Obama administration, partly leading to the Supreme Court’s decision — could simply ignore the ACA’s Medicaid provision.

Others speculate that few if any states will decline such rich funding to provide vulnerable citizens with health care.

Impact on Multiethnic Communities

The ACA’s complications will be entangled in intense debate through the November election and beyond. But for now, health care advocates are counting the law’s blessings to date.

The American Public Health Association, for example, noted in praising the decision that already:
• 54 million U.S. families have additional benefits, including greater access to preventive health care services recommended by the U.S. Preventive Services Task Force, such as vaccines and preventive care and screenings for women;
• 2.5 million young adults up to age 26 are able to stay on their parents’ health insurance plans;
• Nearly 18 million children with pre-existing conditions are protected from insurance coverage denials;
• 3.6 million seniors received 50 percent discounts on their drugs in 2011 as an initial step in closing the “donut hole”; and
• Almost 33 million seniors accessed preventive services now available without cost-sharing through Medicare.

Kathy Lim Ko, president and CEO of the Asian and Pacific Islander American Health Forum, issued a statement hailing the decision and calling ACA a “landmark civil rights law that brings the work of equity and justice to the health arena.”

Ko noted that through implementation of ACA’s early provisions, “97,000 Asian American and Pacific Islander young adults have been able to remain on their parent’s insurance plans and nearly three million Asian Americans have received preventive health care at no cost. By 2016, an estimated two million Asian Americans will have gained or become eligible for coverage.”

At the Greenlining Institute, a multiethnic policy nonprofit, General Counsel Samuel S. Kang, stated, “Every day we wrestle with the reality that African Americans, Asian Americans and Latinos are less likely to have health insurance than whites, and the Affordable Care Act is already helping to fix this massive problem.”

In California, Kang said in a release, over a million people have already benefited from the law, including 400,000 low-income earners.

Health Care Gaps Remain

In the long run, however, the 2,700 pages of the Affordable Care Act and the 200 pages of interpretation — majority and dissenting — added by the Supreme Court, leaves “a substantial gap between the diagnosis of America’s medical problems and the remedies the White House and Congress could agree to,” according to Yale professor emeritus Theodore Marmor, among the leading health policy authorities in the country.

Although ACA’s mosaic of “bits and pieces” of reform undeniably benefits many, the measure fails to create a coherent national health care policy within a system of continuity of care, fails to establish long-term care for elders and those with disabilities, and fails to control health care spending in a system now costing double that of countries having significantly better health outcomes than the U.S.

For today, though, most health care advocates would concur with the statement Thursday of APHA Executive Director Georges C. Benjamin, MD. The Supreme Court’s decision, he said, “marks tremendous pro­gress towards reshaping our health system into one that saves the lives of at least 44,000 people who die annually simply because they do not have health insurance that could keep them healthy.”

*An earlier version of this article erroneously reported that court voted 7-2 on the Medicaid portion of the decision based on numerous initial article (Scotus blog, USA Today). But while the New York Times concurred that “seven justices agreed that Congress had exceeded its constitutional authority” in this decision, the times later reported that two of them actually joined their conservative colleagues in voting to strike down the entire Medicaid expansion, not just to limit it. So the correct vote was 5-4 for the limitation.

This article originally published in the July 9, 2012 print edition of The Louisiana Weekly newspaper.