January 27, 2011
Having delayed it a week in deference towards Representative Gabrielle Giffords, shot through the head in Tucson, the Republicans of the House brought up and voted en bloc to repeal the health-care bill signed into law just ten months ago. The measure is entitled "Repealing the Job-Killing Health Care Law Act." Job-killing? Killing, period? Now that's a lovely choice of words, considering the topic and the circumstances. But even something kinder and gentler — "job-eliminating" or "employment- effacing," for instance — wouldn't soften the Republican message that health-care legislation is about jobs, or about the deficit, or about taxation, or about states' rights — about anything but health.
As usual, the anything-but arguments are hardly compelling. Republicans contend that the law will "kill" jobs because businesses will let employees go rather than be burdened by either insuring them or paying an additional tax; Democrats say the effect will be minimal.
The ambiguity in the deficit argument is even greater. The Congressional Budget Office predicts that repealing the law will add $230 billion to the federal deficit over ten years, while the Republicans insist that keeping the existing law will add $701 billion. The fact made obvious by this divergence is that nobody really knows for sure. This isn't policy, it's politics.
But consider the case of Rep. Giffords. What will be the total cost of repairing her wounded brain and leading her to recovery — the hospitalization, the teams of medical specialists, the surgeries, the medications, and all the rehabilitation therapies — speech, occupational, physical - that will last for months or quite possibly years? The figure will be astronomical, and it will be paid for almost entirely by her federal insurance plan.
What of the 12 others wounded in the shooting? Five of them are over 65 and covered by Medicare. As for the rest, are there maybe some who have little or no health insurance? What will they and their families do?
Last month, Virginia federal judge Henry Hudson ruled that federally-mandated insurance coverage for almost all Americans, a key provision in the law intended to distribute the costs more equitably, violates the Commerce Clause of the U.S. Constitution. "Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," he wrote. Virginia state attorney general Ken Cuccinelli, who brought the suit, remarked that "if the government can order you to buy health insurance, they can order you to buy a car, to buy asparagus, even cauliflower ... or join a gym. The power is expandable almost without limit if this is allowable and constitutional."
Two other federal judges have also weighed in on the question thus far, affirming the opposite, that the mandate is constitutional; so the issue is hardly settled. But while Cuccinelli's comment is just typically embarrassing Republican rhetoric (see "job-killing," above) the judge's sober analysis makes sense. Health insurance is no different from life insurance or homeowner's insurance; it's a product. How can the government compel people to buy it?
Health insurance is a commodity, "in the stream of commerce" — but the essential medical services it pays for are not. They are not a matter of choice, like cauliflower; they are a necessity.
Return to Rep. Giffords. When she was shot, the entire nation, and I daresay that includes the most libertarian opponents of health-care reform, focused single-mindedly on her condition and on the measures being taken by the heroic medical staff to save her life and restore her wholeness. In this tragic moment, health care suddenly was not about jobs or deficits or comparison shopping. It was about health.
And it's about us all. Rep. Giffords is exactly like the tens of thousands of people who will be hit with something just as unexpected and devastating this very day — a gunshot wound, a workplace accident, a heart attack, a diagnosis of cancer. Injury and disease are the absolute leveler, the one thing that eventually will afflict every single human being, from the billionaire to the indigent to the immigrant.
Despite its "laudable intentions," as Judge Hudson readily admitted, I believe the present law is flawed in preserving almost intact the role of insurance companies, reinforcing the notion that health care is product involving, in the judge's words, "an individual's right to choose to participate." It is not. Because it is a universal need, medical care should be considered a public responsibility whose burden must be shared by all. Like education, health care should be treated not as a commodity but as a civil right.