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Stop in the name of health. The supreme court rule on the Affordable Care Act

here were several historical moments on June 28 when the long-awaited Supreme Court decision on the Patient Protection & Affordable Care Act (ACA) was finally announced. First there was the “Dewey Wins!” moment on CNN when the ruling was announced as a defeat for the individual mandate—perhaps a symbol of the whole ball of wax turning out not to be what President Obama wanted it to be when he first started on the long road towards health care reform.

Then there was the unpredicted migration of Chief Justice John Roberts from his usual presence on the conservative side of the fence to his position of alliance with the so-called liberals on the Court and the subsequent shifting of Justices Breyer and Kagan to their conclusion that the feds cannot withhold all Medicaid funds from the states that choose not to go along with the Medicaid expansion set to occur in 2014.

There was also the satisfaction of seeing smug pundits on both sides sputtering and taken by surprise by the final decision. And the quiet trumping of the “big boys” of broadcast media by the obscure SCOTUSblog and its senior citizen journalist Lyle Denniston, who avoided the Dewey moment by waiting to accurately report the truth about the ruling.

Finally, after what seems like months of blunders, leaks, and no-wins, President Obama had control of the news cycle from a positive position of strength. Whether you’re for him or not, it was refreshing to see at least a day of something different.

The impact

But what exactly does the ruling mean for the HIV/AIDS community, for whom access to health care and treatment is literally a matter of life and death? Unfortunately, not much. Despite the glowing claims of victory from most of the national AIDS organizations, the facts are that, at this moment, the benefits that the HIV community and everyone else can derive from the ACA are:

• No lifetime caps on coverage
• No cancellation of coverage if you get sick(er)
• People can stay on their parents’ policies until they’re 26
• Women will no longer have to pay higher premiums based solely on their sex
• Premiums can’t be jacked up without “good reason” (the loophole by which they will be)
• If you have a child with a pre-existing condition, coverage can’t be denied, but no one ever mentions that there is no limit on what they will charge for premiums, deductibles, co-pays, and uncovered costs.
• The gradual closing of the Medicare Part D “donut hole” for seniors

The most-often trumpeted provision of the law—the 2014 expansion of Medicaid to cover those whose incomes are up to 133% of Federal Poverty Level (FPL is $11,170 for an individual, so 133% would be $14,856), as well as individuals who don’t have children—was hobbled by the decision that the federal government cannot withhold all Medicaid funding from states that elect not to participate in the expansion. Therefore, there is little financial incentive for states to join in and since many states, like Illinois, have decimated their Medicaid budgets due to their own financial crises, it seems quite possible that few would choose to take on the expansion. Of course, when Medicaid was first signed into law, many states opted out of the program and then later joined up, so time will tell.

Even if that part of the ruling had not been made, where will the money come from to implement this expansion? According to the law, the federal government will pay 93% of the cost of the expansion. As we read almost every day, Congress has unwavering focus on destroying the so-called “safety net” programs and while perhaps enough legislators have parents, in-laws, or friends who are on Medicare and/or Social Security that they might be reluctant to go too far with those, Medicaid is the black sheep in conservatives’ eyes, a handout to the lazy, irresponsible, sinful poor who are content to let others pay for their mistakes. To crow about this provision swooping in to save the HIV community is at best ill-informed, at worst tragically shortsighted.

For those who might argue that everyone knows the law isn’t perfect, but this is at least a “step in the right direction,” it should be pointed out that there have been other “imperfect” laws passed by this Congress (the Lily Leadbetter Fair Pay Act and the Dodd-Frank Financial Reform Act, for instance) that, while also being steps in the right direction, have yet to be fully implemented and are being fought tooth and nail by those who would prefer the status quo.

The ruling itself

In reading the 93-page ruling, there is surprisingly little ambiguity. Chief Justice Roberts wrote the majority opinion and laid it out clearly, first taking on the constitutionality of the mandate in relation to the Commerce Clause, which is what the Government argued it should fall under.

“The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the prin­ciple that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sus­tained under Congress’s power to “regulate Commerce,” Roberts concluded.

The backup justification for the mandate was via the Necessary and Proper Clause, the Government arguing that the mandate was an integral part of the other provisions of the ACA. Roberts’ answer to that was, “Nor can the individual mandate be sustained under the Nec­essary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.”

It was those parts of the opinion that had CNN pronouncing the death of the mandate, but if they had read further, and more carefully, they would’ve gotten to “Chief Justice Roberts concluded in Part III–B that the individ­ual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.

“The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power. It is therefore necessary to turn to the Government’s alternative ar­gument: that the mandate may be upheld as within Congress’s power to ‘lay and collect Taxes.’”

Further, Justice Roberts stated, “The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penal­ties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. None of this is to say that pay­ment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is un­lawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals ‘shall’ obtain insurance or pay a ‘penalty’—does not require reading §5000A [statute 5000A, which sets the mandate] as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insur­ance.”

And so the mandate was ironically saved by the mechanism of taxation, which is exactly how single-payer healthcare would be funded. The difference is the quality of what the tax would pay for.

Quality vs. compliance

One of the most interesting statements in Roberts’ opinion is, “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

Because policy-making is beyond the scope of the Court, there will never be a pronouncement on the legality of forcing people to buy health insurance that does not provide them with care. But that is perhaps the most untalked-about, salient issue involved.

The law states only that people are required to obtain insurance, either by purchasing it themselves or through their employer, that meets “minimum basic standards.” There is no language in the law that requires specific coverage and even the “essential health benefits” standards are being fought over and remain unclear. The insurance companies obviously would prefer to cover only the bare minimum, allowing them to suck in more record profits while providing little actual care. Just as is currently the case, people would be paying not only high premiums, but also deductibles, co-pays, co-insurance, and uncovered costs and many younger, healthy people would choose to pay the “tax” for not buying insurance rather than throwing their money away on insurance that would do them little good if they actually got sick or injured.

For those of us living with chronic and/or complicated conditions, the prices we’ll be required to pay for the coverage we need may very well be as untenable as the current COBRA and high-risk pool rates are. Just as with the provision that requires coverage of children with pre-existing conditions, the only thing the law says is that we cannot be denied insurance. It says nothing about how much that insurance will cost or how high out-of-pocket costs can be.

Once again, insurance company profits will soar while medical bankruptcies, worsening outcomes, and even increased death rates will also climb.

What’s next?

There will undoubtedly be a tendency to breathe a sigh of relief and settle back into complacency. After all, the big event is over, questions asked and answered, we can just get back to life and stop worrying about what’s going to happen.

Wrong. The House has already scheduled a vote on the repeal of the ACA for July 11. And they’ve proven that the number of opposing constituent phone calls, emails, and angry voices at town hall meetings on Social Security and Medicare mean nothing to them and will not deter them from their resolve to defeat President Obama.

And as states that had put their ACA insurance exchanges on hold pending the Supreme Court decision dust them off and get the wheels creaking forward, there will be more lawsuits, more battles, more rulings to wait for.

Democratic politicians have been all over TV and the Internet celebrating this victory as “universal healthcare” (it isn’t) and whooping about it providing access to “affordable, quality health care for everybody” (it won’t). After all the hoopla, what will we end up with? At least 20,000,000 still uninsured, over 100,000,000 underinsured, insurance companies with all the power and all the money denying claims, counteracting doctors’ recommendations, and maintaining armies of lobbyists who will in turn continue to control Congressional activity, continued medical bankruptcies, and more preventable deaths.

We can, however, resist falling into resigned complacency. We can ignore the spin and educate ourselves on the truth about what the law does and does not provide.

The HIV/AIDS community can be leaders here and many of you already are, hoping for the best from the ACA, but realistic enough to know it will never be the answer, never be enough. The ACA is the AZT of the health insurance disease we all live with. Just as you didn’t settle for AZT, just as you demanded more and better treatments, just as you continue to reach for a cure, we must all refuse to accept that this “treatment” is “the best we can do,” especially when the “cure” to our healthcare disease is within sight. It won’t be easy, but it starts with the refusal to settle for this.

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