Five Supreme Court Justices Put Our Health Care On The Line

People line up to hear oral arguments on the Affordable Care Act. Alex Wong / Getty Images

My fellow americans, your health care is now in the hands of the right-wing majority of the Supreme Court. These are the folks who disgraced themselves in Bush v. Gore and who auctioned off democracy in the Citizens United decision. You thought it was bad when Congress and the insurance companies were making health-care policy? Wait till you see what five Republican lawyers can do.

The oral arguments on the Affordable Care Act give us very little reason to have faith in the wisdom of the court. Some of the justices came off as smug, arrogant, and frighteningly detached from the realities of everyday life in America. Justice Samuel Alito engaged in a discussion of whether Congress could force Americans to purchase burial insurance. “I don’t see the difference,” Alito said. “You can get burial insurance. You can get health insurance. Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What’s the difference?”

The difference, you want to scream, is we don’t have a burial-insurance crisis in America. We aren’t spending 17 percent of our total national wealth on burials year after year. We aren’t bankrupting families because burial costs are out of control. Perhaps most important, if a person doesn’t get good health care, he or she will die. If someone doesn’t get a good burial, well, she or he is not going to die. Because, you jerk—I mean, your Honor—that person is already dead.

I have a law degree. I passed the bar. I know what Justice Alito is trying to do: reductio ad absurdum. He is probing the limits of Congress’s constitutional power. But here in the real world he’s wasting our time. And he’s pissing us off.

Civic Freeloaders: People who have insurance are being overcharged to cover free riders who think they’ll never get sick—like Mary Brown, the small businesswoman who filed the original lawsuit asserting her right not to buy health insurance. “She firmly believes that no one should have the right to tell her she has to use her own money to pay for health insurance,” Karen Harned, executive director of the National Federation of Independent Business legal center, said two years ago when NFIB filed the lawsuit on Brown’s behalf. But Brown is no longer the named plaintiff. Why? Because NFIB dropped her when the real world intruded. She got sick. The bills came due. And without health insurance, she went bankrupt. She had to close her auto-repair shop. And she stiffed her doctors and hospital—leaving folks who were more responsible than she to cover her uncompensated care.

In the real world, of course, that care is not “uncompensated.” Responsible Americans who carry health insurance cover the health-care bills of free riders. In fact, if you have health insurance, you have been paying $1,017 a year more to cover folks who don’t have health insurance. That’s a real fact from the real world, but Justice Alito dismissed that thousand bucks a year as “a very small part of what the mandate is doing.” Perhaps that’s only small to Justice Alito because as a government employee his health-care bills are paid by We the People.

The National Interest: In the real world, before President Obama, House Speaker Nancy Pelosi, and Senate Majority Leader Harry Reid enacted Obamacare, people died because they didn’t have the kind of health insurance Justice Alito enjoys. People like Pal Hannum, for example. Hannum was trying to live the American Dream in California, eagerly awaiting the birth of his daughter. He got sick, but he didn’t have health insurance. He got worse. “He had a little girl on the way,” his older brother Curtis said. “He didn’t want the added burden of an ER visit to hang on their finances. He thought ‘I’ll just wait,’ and he got worse and worse.” Eventually, Hannum’s appendix burst. He died without ever holding his baby in his arms.

Justice Alito’s colleague, Chief Justice John Roberts, had a different analogy than burial services: cellphones. Since we never know when we might need emergency services, he hypothesized, could Congress mandate that everyone buy and carry cellphones? I don’t know the answer to that question. But I do know this: Congress can force each of us to buy a gun. The Second Militia Act of 1792, signed by George Washington, required every able-bodied (white) male between the ages of 18 and 45 to purchase a musket and ammunition. It’s clear the people who wrote the Constitution thought Congress had the power to compel citizens to purchase certain goods to advance an important national interest.

But then again, the Founding Fathers lived in the real world, not the rarefied world of bloodless abstractions preferred by the court’s right-wing majority.

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