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Healthcare law’s day in court

When the Supreme Court takes up the 2010 healthcare reform law this week, the legal and political arguments will be in near-perfect alignment. And the stakes couldn’t be higher on either front. The court briefs echo the themes that President Obama’s Republican rivals are sounding on the campaign trail: The Patient Protection and Affordable Care Act, which they derisively call “Obamacare,” is an attack on freedom, epitomizing the administration’s disregard for constitutional limits on federal power and disrespect for citizens’ rights to make decisions for themselves.

As we’ve said before, we don’t believe the law is the threat to individual liberty that its critics claim it is. Instead, the most controversial provision — the requirement that almost all adult Americans obtain insurance coverage — is a key piece of a broad effort to fix a healthcare system that is too expensive, inefficient and inaccessible to too many Americans. The justices should dismiss the challenge to this individual mandate, as well as the other claims against the law.

The court is scheduled to spend three days this week hearing arguments about four issues raised by the healthcare appeals. The core questions are whether Congress has the power to impose the insurance mandate, and if not, whether the rest of the act should be thrown out as well. Here is where the political and legal dimensions of the debate converge, with Republicans and the law’s opponents rallying around the notions of limited government and personal freedom.

Opponents of the law contend that the federal government has never before required Americans to purchase a product or service. But there’s a long-standing principle that individuals have to pay their own bills. That principle has led Washington and state governments to require people who participate in the markets they regulate — for example, home buyers, car owners and motorcycle riders — to obtain such things as flood insurance, car insurance and motorcycle helmets to defray the cost they would impose on society in the event of a mishap.

Critics of the healthcare law argue that this is different because any American can opt not to drive and therefore wouldn’t have to pay car insurance, or not to buy a home in a flood hazard area and thus avoid having to carry flood insurance. But underlying the law is the sound assumption that every American uses healthcare services at some point. The individual mandate is a means to ensure that people who are hit with unexpected medical bills can pay them, rather than leaving doctors or hospitals to recover their costs from the taxpayers and patients with insurance. That notion of personal responsibility is as deeply ingrained in the founding principles of this country as the idea of individual liberty. Put another way, there is no constitutional right to make other people pay for your healthcare.

Some opponents have seized on the fact that the mandate forces people to buy something from private companies, which is somehow more objectionable on constitutional grounds than forcing them to buy from the government. But leaving insurance companies in place was a pragmatic decision to rely on an existing set of resources, just as states have done with the mandates to buy car insurance from private carriers and motorcycle helmets from private manufacturers. It was also a concession to the political reality that Congress wasn’t going to nationalize the health insurance industry.

The rationale for the mandate goes beyond the issue of personal responsibility. It’s also an integral part of Congress’ effort to stop insurers from excluding people with preexisting medical problems. That sort of cherry-picking leaves millions of Americans unable to find affordable coverage. To combat that, the law requires insurers to expand their risk pools, offering coverage to all applicants at prices based only on their age, locale, family status and tobacco use, not their medical records. But these requirements could have the perverse effect of inducing people to drop coverage whenever they’re healthy, signing up for policies only when they know they need expensive treatment. Such “adverse risk selection,” as economists call it, would result in insurers covering only the sickest people, sending premiums through the roof. To minimize that problem, Congress added a requirement that all adult Americans carry insurance at all times.

Granted, there are other ways to deter coverage gamesmanship. Congress could have imposed waiting periods for insurance, required higher premiums for those who renew coverage after dropping it, or even allowed insurers to temporarily deny coverage for preexisting conditions. But because the mandate plays a clear role in the new regulatory regime Congress enacted for insurers, it falls safely within the limits of the commerce clause that the Supreme Court has laid out over the last century.

The most powerful argument against the mandate is that it sets a dangerous precedent for further congressional intrusion into personal decisions. But that’s not persuasive for at least two reasons. As long as doctors and hospitals are required to treat patients in urgent need, people who decide not to carry insurance are deciding to make someone else pay for the care they can’t afford. In that sense, it’s not a purely personal decision that the law is regulating, and Congress isn’t really breaking new ground.

More important, the Constitution isn’t the only limit on governmental power, nor necessarily the most effective one. Lawmakers are restrained from overstepping by the voters, who can (and do) replace the ones who support measures they don’t like. Just ask the roughly two dozen Democrats who lost their seats in 2010 largely because of their support for the healthcare law. And even if the Supreme Court upholds the law, voters will have the chance to render their own verdict when the two last redoubts of support for the measure — the White House and the Senate’s Democratic majority — are up for grabs in November.


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