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SCOTUS PPACA Day 1: The Calm Before Storm

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On my way to dinner on Monday, after spending the day covering the various protests and rallies on the Supreme Court steps in Washington, DC, I passed the Ronald Reagan building, where there stood a statue with the inscription: “The voice of reason is more to be regarded than the bent of any present inclination.” If only such wisdom had been heeded by those I saw arguing the merits and flaws of the Patient Protection and Affordable Care Act (PPACA), the fate of which will be argued this week, from Monday through Wednesday.

Today, the arguments centered on an obscure bit of the law that essentially begged the question: can you overturn the individual mandate before it formally takes full effect in 2015? Both sides of the argument were eager to have this matter settled now, and not surprisingly, the Supreme Court decided that it would be appropriate to hear the other arguments regarding PPACA’s potential overturn.

The real fireworks will kick off tomorrow, when the arguments begin over the Constitutionality of PPACA’s individual mandate – the requirement that all buy at least some minimum level of health insurance. On Wednesday, the arguments will focus on whether, if one part of PPACA is overturned,  the entire thing be overturned? Separate arguments will go over how PPACA impacts Medicare, but the heart of all this will be Tuesday’s arguments over the individual mandate.

PPACA SCOTUS opposites

The arguments will be passionate ones, and already, those outside the Court spent the day rallying around their own reasons for why PPACA should stay or go, and trying to shout over the noise of the other side. As I walked among the crowds in front of the Supreme Court, I noticed a few common themes that made me deeply appreciate that the fate of PPACA was being decided within the SCOTUS building rather than out in front of it.

The crowds today were overwhelmingly pro-PPACA. The largest group was People of Faith for Health Care, a religious group who felt that PPACA needed to stay law because it protects the poor and helpless. There was Doctors for America, a group for medical professionals and medical students who supported PPACA because they feared that without it, patients would no longer be able to afford medical services. The National Association of Women was on hand to support PPACA’s provisions concerning the guarantee of contraception (a relatively late-breaking issue that I think has only served to distract everybody from the larger realities of what PPACA is, does and means). And there were a number of other miscellaneous supporters who seemed to support no particular cause, but whose reactions showed how much they thought PPACA was a good idea that needed to stay.

Central to the arguments of almost all of these groups was the tenet that universal access to healthcare is a basic human right. In a country as advanced and as wealthy as the United States, so goes the logic, there is no excuse for why anybody should go uninsured. Every American has a right to be healthy, and a right to the medical procedures required to return one to health when they fall ill. Fair enough; anybody who travels abroad, especially to countries less developed than this one, can appreciate the notion that Americans can surely support a system that makes sure everybody has access to at least basic medical services.


But what none of these groups seem to appreciate is that if healthcare is a basic human right, like freedom of speech, then there comes with it a duty to exercise that right responsibly. We are in the grip of a crippling obesity epidemic, caused largely because a quarter of all Americans make choices every day that lead them to obesity and because another quarter make choices that merely leave them overweight. If there is a right to healthcare, then all of these people really should be willing to change their lives in order not to abuse that right. After all, if freedom of speech still means you can’t yell “Fire!” in a crowded theatre, then freedom from medical problems means you can’t knowingly bring those problems upon yourself. That should be the logic, but somehow, I doubt anybody was thinking things through that much. What they were arguing for, really, was an entitlement without a lot of thought toward cost or logistics.

Next page: Enter Santorum

Lest you think I’m here to beat up on PPACA, rest asured that there was just enough nonsense coming from the other side of the aisle. There to protest PPACA, and to cheer for its overturn were relatively small groups of very vocal protestors who, it must be said, were not very organized in either their message or their delivery. Some seemed to be offended by the notion that PPACA would pave the way for ever-greater requirements. Some were there to protest the contraception mandates and by extention, to protest government-sanctioned abortion. Some were there to protest government rationing of healthcare. One protestor with the Tea Party Patriots thought that the requirements of PPACA would bankrupt the entire health insurance inudstry, and there would be no more private insurance, ever.

None of these arguments were likely to withstand a concerted cross-examination by anybody with insurance industry experience, but the point that seemed the most brittle was the one forwarded by a small group of young men with no formal affiliation other than the fact that one of them wore a Mitt Romney t-shirt. Their point was that PPACA gave people something for nothing. People deserve healthcare, so they get it. “I deserve a Porsche. Shouldn’t I get it, too?” I see the point, but it is one undone by its enormous asymmetry. Access to healthcare by way of the individual mandate is already being paid for, so the something-for-nothing argument is not nearly as cut and dried as it might appear at first. Also, healthcare is a critical service that sustains life. A Porsche is a luxury.

PPACA SCOTUS breitbart

But I got where these folks were coming from, even if their argument seemed flawed, so I asked them this: uninsured people who are hurt or injured still go to the hospital, and when they cannot pay for medical care, the rest of society pays for it, ultimately, in higher premiums that pass the cost along to those who can pay for insurance. If their objection is that PPACA is taking from everybody and giving it to an undeserving few, how was the situation before PPACA any different? They had no answer for that.

There were two surprises of the day. The first was when an insurance broker from California argued with some Tea Party Patriots over some insurance numbers they were quoting. When I spoke to him later, he said that he appreciated the stress PPACA was putting on health brokers (he sold health insurance, but his firm sold other insurance, also), but at the same time he said that the healthcare business had gotten so out of whack that it had to be reformed. I do not know which was more surprising to me: that the first insurance guy I met today was in favor of PPACA instead of against it…or that the first insurance guy I met today was also the only insurance guy I met today.

The other susprise was an unannounced appearance by Sen. Rick Santorum (R-Pa.) who showed up to compare Romneycare to PPACA, and to stress why he was the best GOP candidate to run for the Presidency. From a campaigning standpoint, the appearance seemed pretty shrewd, really. But surprisingly, as he spoke, he was repeatedly drowned out by a large crowd of nearby pro-PPACA supporters. Seeing Santorum was unexpected; that he would fight unsuccessfully to be heard was even more so.


I do not know what to expect on Tuesday. I really don’t. But if Monday is any indicator, I think what we saw today is just the opening act, and every deeply held opinion about PPACA, however incorrect or fueled by ulterior motives, will come to the fore with a vengeance. This is not good for a rational debate on such an important piece of legislation. Sadly, like so much else with insurance, those most likely to shout about it one way or the other, seem the least likely to actually learn about it. No wonder SCOTUS does so much behind closed doors. It’s probably quiet enough to think in there.

All images by Bill Coffin


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