Civil rights-era case of­fers per­spec­tive on cur­rent ACA fight

Old civil rights-era case of­fers per­spec­tive on health re­form le­gal fight

Modern Healthcare - - NEWS - NEIL MCLAUGH­LIN Man­ag­ing Ed­i­tor

If last week’s marathon ar­gu­ments be­fore the U.S. Supreme Court (and all the demon­stra­tions out­side) on the health­care re­form law evoked some deja vu, it’s not sur­pris­ing. Among all the cases cited by the var­i­ous par­ties to the le­gal ex­trav­a­ganza is one some peo­ple might re­mem­ber: Heart of At­lanta Mo­tel v. United States. This lit­i­ga­tion arose out of the bit­ter con­tro­versy sur­round­ing Congress’ ap­proval of the Civil Rights Act of 1964. The law, which was largely based on Congress’ au­thor­ity un­der the Con­sti­tu­tion to reg­u­late in­ter­state com­merce, barred racial dis­crim­i­na­tion in public ac­com­mo­da­tions.

En­act­ment of the law prompted the owner of the large mo­tel, who re­fused to rent rooms to black cus­tomers, to file a suit con­tend­ing that the leg­is­la­tion ex­ceeded Congress’ au­thor­ity un­der the com­merce clause. The owner, who was a lawyer, also charged that the act vi­o­lated his Fifth Amend­ment rights to choose cus­tomers and op­er­ate his busi­ness the way he wanted, de­priv­ing him of his prop­erty with­out due process of law. More­over, he con­tended that the Civil Rights Act vi­o­lated his 13th Amend­ment rights, forc­ing him into in­vol­un­tary servi­tude by mak­ing him rent to African-amer­i­cans.

The owner was not alone in his protests. Op­po­nents com­monly ar­gued that Congress had ex­ceeded its au­thor­ity un­der the Con­sti­tu­tion. The in­vol­un­tary servi­tude tack was not so com­mon, although a lot of crit­ics might have felt that way.

In the end, the Supreme Court ruled that the Civil Rights Act was a valid ex­er­cise of con­gres­sional power un­der the com­merce clause, and that the mo­tel in ques­tion clearly did busi­ness af­fect­ing in­ter­state com­merce. And it dis­missed the Fifth and 13th Amend­ment ar­gu­ments.

We re­call this case not to pre­dict how the Supreme Court may rule on the Pa­tient Pro­tec­tion and Af­ford­able Care Act. But it does raise a ques­tion and of­fer some his­tor­i­cal per­spec­tive.

The ques­tion in­volves con­gres­sional au­thor­ity. What hap­pens if the jus­tices in rul­ing on the health­care law adopt a very nar­row in­ter­pre­ta­tion of com­merce clause en­force­ment power? Much of fed­eral law is tied to the clause, and many statutes would be sub­ject to se­ri­ous court chal­lenges. These in­clude civil rights, la­bor and en­vi­ron­men­tal laws, con­sumer pro­tec­tions and anti-cor­rup­tion statutes. Even some ACA op­po­nents won’t be happy with the in­val­i­da­tion of pet laws.

On the his­tor­i­cal front, there are par­al­lels to our time. Now, as then, we have Congress try­ing to en­sure that all cit­i­zens have ac­cess to ba­sic ser­vices. Then, it was a mat­ter of be­ing able to get a ho­tel room or a meal. To­day, it is whether peo­ple can en­joy ba­sic ac­cess to med­i­cal ser­vices. Once again, crit­ics are ar­gu­ing that Congress has no power to pur­sue an in­clu­sive goal—this time of univer­sal care or at least near-univer­sal—ac­cess to care.

Also note the sim­i­lar­ity be­tween the in­vol­un­tary servi­tude tack and the con­tem­po­rary cries of abridged free­dom by be­ing re­quired to buy health in­sur­ance.

The an­swer to the ul­ti­mate ques­tion un­der­ly­ing all of this is be­yond the Supreme Court’s ju­ris­dic­tion. That is whether Amer­i­cans are one peo­ple with com­mon in­ter­ests or a group of un­con­nected in­di­vid­u­als who find them­selves within com­mon borders. Af­ter World War II, the coun­try built a con­sen­sus that all U.S. cit­i­zens should be treated equally when it comes to ob­tain­ing ba­sic ser­vices. A con­sen­sus seems to have emerged grad­u­ally and painfully over the last cen­tury—re­sult­ing in Medi­care, Med­i­caid and the Aca—that sim­i­lar prin­ci­ples should ap­ply to health­care. Whether that con­sen­sus from the past holds un­der pow­er­ful at­tack is the real key to the fu­ture of health­care re­form.

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