Courts can’t cure America’s health care ills

Texas v. United States probably doesn’t ring a bell for most Americans, but the legal proceeding heard earlier this month by a federal appeals court in New Orleans could have dire consequences for the nearly 20 million Americans who have health insurance today because of the Affordable Care Act. Last December, a U.S. District Court judge in the Lone Star State struck down the ACA for a suspect legal reasoning — declaring the individual mandate unconstitutional and inseverable from the rest of Obamacare, thus dooming the entire framework.

In the language of the health care debate, that makes the 5th Circuit an actual death panel, not the phony-baloney kind conjured by Obamacare critics a decade ago. The judges literally have in their hands the power to kill the medically needy. According to one Harvard University study, increased insurance enrollment has caused patients to seek medical treatment earlier and thus avoid more risky surgical procedures and other treatments. The federal government’s own analysis show it has saved Americans billions of dollars in the form of lower health care costs. If one 2006 Massachusetts study on the importance of government-backed health insurance can be relied upon, the ACA may have saved 24,000 lives in its first nine years of existence. Kill the ACA and you are going to pull the plug on thousands of human beings, too.

What’s truly breathtaking about Texas v. United States, however, is its legal reasoning. Judge Reed C. O’Connor based his ruling on the decision by Congress to render useless a single provision of the ACA — the individual mandate. The Republican majority did so in 2017 by taking away the penalty as part of its tax cut legislation. No longer do individuals face a fine (or, technically, a tax, according to the Supreme Court) for failing to obtain insurance. No tax? No law. That’s what Judge O’Connor decided. Yet Congress had the option of killing the ACA instead of simply removing the penalty and didn’t take it. And now the courts are going to usurp the legislative function? Isn’t that what conservatives are supposed to hate?

Make no mistake, we argued against congressional action to zero out the individual mandate two years ago because it has been a helpful part of the ACA, spurring young, healthy people to buy health insurance, which not only protects them from medical and financial disaster but makes premiums more affordable for everyone by balancing out the risk pool. It’s a winwin approach. But even without the mandate, the thought of denying health insurance to millions of Americans who wouldn’t otherwise be able to afford it is unacceptable. This country is already suffering enough social and financial division, enough haves versus have-nots class warfare, to throw yet another timber on that particular fire. Forget the ambition of Medicare For All, how about just some basic health insurance coverage of any type for the working poor that they can actually afford?

Twice, the Supreme Court has given its stamp of approval to Obamacare. Kill the health care law now and there will be chaos. The nation’s health care system has adapted. Huge investments have been made. Millions are in the system. If Congress wants to put the nation on a different path, they need to be the ones to make that choice. The jurists of the 5th Circuit aren’t equipped to fundamentally remake health care delivery. Particularly not on such a slender legal thread — on an argument that a provision now rendered useless by the legislative branch was too critical to circumvent.

Let’s recall all the ACA provisions that Americans really, really like. Take, for instance, the ability to keep a child on a family health insurance plan until age 26. Or coverage for preexisting conditions. Or expanded Medicaid coverage in many states. What happens to all that if the entirety of Obamacare goes away? The short answer: They go away, too. As much as some people may truly believe President Donald Trump’s claim that he and Republicans in Congress have a heretofore unknown plan to replace the ACA after the 2020 election, Americans should be skeptical.

That’s like expecting professional saboteurs, vandals and graffiti artists to devote themselves to restoring public infrastructure to pristine conditions. No one is expecting the court to fix the nation’s health care problems. They’d settle for judges not making them much, much worse.