Hope on Trial
By Adrienne LeBio
I was frustrated as I read the oral arguments for what is being called the most important Supreme Court case of the past two decades. The Court’s decision on Department of Health and Human Services v. Florida will have huge economic, social, and moral implications for this country; the entirety of President Obama’s sweeping health care legislation, the Affordable Care Act of 2010, is at risk. Yet even with all this on the line, the oral arguments were painfully lackluster.
In past years the Obama camp and its supporters have pulled at the heartstrings of the American people, advocating for health care reform that would ensure that Michael, the eight-year-old cancer patient would not be denied treatment – that he would not be deprived of his fundamental right to life because his family could not afford it; or that Gail, the 32-year-old mother of four would have insurance to pay for her lymphoma treatments, even if it was a pre-existing condition. The right to life. Equal opportunity. For the supporters of Obamacare, this is what health care reform has been about. This is what we have been fighting for and the Affordable Care Act was one big step towards social justice in America. But this was not what was discussed in the courtroom.
The health care debate in the Supreme Court was about limited government, about taxes and penalties, about who is buying into what markets and whether the federal government has the constitutional power to regulate it. Divested of its provocative elements, President Obama’s signature legislation was discussed solely in legal terms. Solicitor General Donald Verrilli, Jr., arguing on behalf of the federal government, struggled to answer pointed questions from the more conservative justices, namely Justice Scalia and Chief Justice Roberts. As General Verrilli fumbled with the limitations of the commerce clause in an attempt to answer Justice Scalia’s counterfactual about mandating the purchase of broccoli, I felt the momentum of the liberal argument come to a painful halt.
Of course it is always easier to make the slippery slope argument. It has been used countless times to challenge the jurisdiction of the federal government, and when the burden of proof is on your side you have to explain what makes your case exceptional, what makes it in accordance with the Constitution, and what constitutes going too far. How is mandating the purchase of health insurance different from mandating the purchase of broccoli? Justice Ginsberg stepped in to help General Verrilli, saying that what makes this case unique is that “people who don’t participate in this market are making it much more expensive for people who do…it’s not your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way.” As Justice Breyer put it, if we do not buy insurance and we get sick, our fellow taxpayers will pay for our treatment through the Federal Government. “It shows there is a national problem, and it shows there is a national problem that involves money, cost, insurance.”1 This is the main legal argument used by the proponents of the Affordable Care Act. It is within the power of the Federal Government, under Article 3 Section 8, to regulate inter-state commerce. The health insurance and health care markets are inter-state markets.