Do the right thing?

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When former US Senator Tom Daschle spoke at the recent SAS Health Care and Life Sciences Executive Conference, he opined on the legal fate of the Affordable Care Act by quoting Winston Churchill:

“You can always count on Americans to do the right thing – after they’ve tried everything else.”

On Wednesday, 26 states and a three-judge panel in Atlanta moved the country a step closer to having tried everything else when the court heard opposing viewpoints about the law, which was designed to guarantee health insurance for all. Opponents – in this case, the 26 states that disagree with President Obama – say the provision that requires citizens to buy health insurance, whether they want it or not, violates the US Constitution. The federal government cannot compel an individual “to take part in commercial activity,” they argued.

But the acting solicitor general disagrees. He says the Constitution’s commerce clause permits individual mandates because they correct the current system of cost-shifting that occurs when uninsured citizens inevitably seek medical attention.

Doctors and hospitals cannot legally turn away patients who cannot or will not buy coverage. So the cost of their treatment – about $43 billion a year – shifts over to everyone else’s bills.

To the law’s supporters, cost-shifting puts an unreasonable expectation on those who do pay for insurance. “It’s about failure to pay, not failure to buy,” the solicitor general said.

Arguments about the role of the federal government in anything – not just health care – are as old as the country itself. And they’re not going away anytime soon. The Atlanta hearing was just one stop in an appellate-court roadshow of similar lawsuits across the country, all winding their way to Washington for a showdown in the Supreme Court.

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  1. Truly a defining topic of our times in our society, and a compelling drama to witness and partake in.
    Are there other similar examples of cost-shifting? If the final decision affirms this interpretation of the issue, would it serve as a precedent for other mandates?
    If the final decision, on the other hand, eliminates the mandate to buy health insurance, would this serve as enough of a legal argument to also overturn the obligation to provide care to those without insurance or money? Sounds morally reprehensible, but could a lawyer successfully argue the point?
    Tune in next week for the next episode! 🙂
    By the way, other than the fact this topic was talked about by a politician at a SAS event, is there a reason this is being blogged about on sas.com? Is there a play for SAS solutions in this conversation?

  2. Hi Mike,
    Your questions are crucial to understanding this debate. Below are my own, personal thoughts on each one.
    Take care,
    Barry
    1.) *Are there similar examples of cost shifting?*
    One could argue that the federal tax system offers plenty of examples of cost shifting -- including the IRS’ $1,000-per-child tax credit, which shifts some of the financial burden of raising (other people's) kids to childless taxpayers and empty-nesters. The only difference between that federal subsidy and the one behind the insurance requirement is that revenue to fund the latter will come from "penalties" and "fees" -- not from "taxes." Wink-wink.
    2.) *If upheld as constitutional, will individual mandates serve as a precedent for other mandates?*
    Opposing attorneys argue, “What’s next -- will politicians mandate us to eat broccoli?” Man, I sure hope they don't do that.
    3.) *If the Supreme Court rejects the individual mandate, would the door open to reversing laws that oblige doctors and hospitals to treat the uninsured?*
    Thinking through that scenario ... the very act of removing government from both sides of the equation could, in fact, prompt sufficient popular and political support for a federally subsized system of health insurance for all -- voila!
    4.) *Other than the fact that former US Senator Tom Daschle spoke about the legal fight over individual mandates at a SAS event, why is SAS blogging about it?*
    The issue ultimately relates to the importance of health analytics. Understanding that need, SAS has opened the Center for Health Analytics and Insights.
    http://www.sas.com/news/preleases/chai.html

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