A Costly, Exclusive Health Care Market, do the High Court’s Conservatives Understand It?

April 4, 2012

by Jeremy Leaming

The right-wing challengers of the Affordable Care Act have spent more than a year honing the broccoli argument – if the federal government can require people to buy health care insurance then our fragile liberty will crumble because the monstrous federal government will order us all to buy broccoli, gym memberships and, well, who knows what else.

Last week’s oral argument in HHS v. Florida revealed that the broccoli argument is seemingly being taken seriously by more than just libertarian law professors, such as Georgetown’s Randy Barnett. Justice Antonin Scalia aped right-wing talking points when he pelted Solicitor General Donald Verrilli’s defense of the ACA’s minimum coverage provision, which will require some people to carry a minimum amount of health care insurance starting in 2014, with the, ‘oh hell-broccoli-is-next,’ argument.

But former Mich. Gov. Jennifer Granholm (pictured) hopes the Supreme Court’s conservative justices can get up-to-speed on how the health insurance market works, and consider how invalidating the landmark law will impact the lives of tens of millions of Americans who do not have the luxuries the high court justices enjoy. 

Granholm’s hope, however, may likely be too much of a stretch, especially for a conservative majority that found a way to run roughshod over longstanding precedent in Citizens United v. FEC, giving corporations unfettered ability to influence campaigns.  

Granholm, a speaker at the 2009 ACS National Convention, writing for Politico focuses on her hairdresser, Carmelita, who explained to Granholm that she already participates in the health care insurance market, albeit in a manner that leaves her wishing she could afford health care insurance.

Carmelita’s employers do not provide health care insurance, and she can’t afford to purchase coverage. “It’s just too expensive,” she said. “No way I can afford it.”

But if she could afford it, she would gladly purchase it, because she’s still “paying off a $3,000 health care bill from last year when I had walking pneumonia and finally went to see the doctor. They ordered an X-ray of my chest, and my life hasn’t been the same since, trying to pay that medical bill. Of course, I’d have health insurance if I could afford it! Anybody would.”

Granholm noted what several of the high court’s conservative justices seemed not to understand. Carmelita, along with tens of millions of other Americans, is “already forced to buy health care – but it’s the emergency room” kind.

Granholm says Carmelita “has been mandated into the uninsured health care market, banished from the ‘normal’ care by a wholly unaffordable insurance system. She doesn’t have insurance, but believe me, she’s participating in commerce. She was forced, mandated to purchase emergency care or choose to risk her life.”

The emergency-room health care coverage is not the kind that the nine-sitting justices will ever have to worry about dealing with, and according to Granholm that doesn’t sit well with Carmelita. She finds it “amazing,” Granholm writes, “that justices with lifetime appointments who will never have to worry about health care personally, who themselves will never be forced economic bystanders to the health insurance market, are likely to decide this case based upon arcane legal theory – and not upon human reality.”

As noted by former Solicitor General Walter Dellinger during an ACS briefing on oral arguments in the health care reform case, several of the conservative justices don’t seem inclined to consider consequences, other than to themselves. (During oral argument regarding whether any of the law could be salvaged if the Court were to strike the law’s minimum coverage provision, Justice Scalia groused about having to read the entire bill.)

Several of the questions lobbed, especially from Scalia, revealed callousness toward the ideal of not letting "people suffer and die on the steps of the hospital.” Scalia suggested to Verrilli that the government should not obligate itself to ensuring that the sick get treatment.

The high court’s right-wing justices, despite President Obama’s confidence that high court precedent strongly supports health care reform, may be too politically motivated and clueless to do anything other than kill health care reform. If the conservative justices take that step, however, it may do even more than Citizens United in stirring large swaths of the populace to question the high court’s legitimacy.