Will the Courts Wreck Health Care?

As if our political system was not having enough trouble already, we now confront the possibility that a highly partisan judiciary will undo a modest health care reform that is a first step toward resolving a slew of other difficulties.

As you watch the suits against the Patient Protection and Affordable Care Act work their way through the courts, consider that what you are really seeing is a great republic tying itself into as many knots as possible to avoid facing up to a challenge that every other wealthy capitalist democracy in the world has met.

Yes, all the others have decided that it's both more just and more efficient for all its citizens to have health insurance. Countries do this in different ways. Some rely primarily on government, others on a mix of private and public resources. But given the costs of health care, even the most conservative governments have concluded that the public sector has to play a large role in its provision.

Not us. No, thanks to our own peculiar brand of conservatism that sees government-subsidized health care as a lurch down the road to serfdom and dictatorship, we kept finding ways to evade the problem — until last year's breakthrough. But having failed to block health care reform in our elected branches of government, conservatives now hope that they can achieve their end through judicial fiat. They were against judicial activism until they were for it.

And we Americans are thoroughly inconsistent. We supposedly oppose government health care, yet Medicare — essentially a system of socialized insurance — is an exceedingly popular program. That's why House Republicans are paying such a high political price for their efforts to dismantle it.

Conservatives talk an excellent game about individual responsibility and the idea that there is no such thing as a free lunch. They have a point, which makes it all the more astonishing that their legal attack has focused on the health law's requirement that all Americans purchase health insurance. (Mitt Romney actually understands this. That's why he's in the midst of trying to square his own support for an individual mandate in Massachusetts with anti-mandate orthodoxy among GOP primary voters.)

There's a simple truth here. People who get sick and show up at emergency rooms will get care whether they have insurance or not — and they should. Under a law signed by President Reagan — the Emergency Medical Treatment and Active Labor Act of 1986 — nearly every hospital is required to offer treatment to those in urgent need of help. The law stops private hospitals from “dumping” (the word of art in the medical profession) patients onto public hospitals.

The way things work now, the cost of treating those patients falls onto those who already pay for insurance, or onto the taxpayers. The mandate is designed to get everyone inside the system and have them pay something. The new law also provides subsidies for those who can't afford the full cost of insurance.

In defending the Affordable Care Act before the 4th US Circuit Court of Appeals in Richmond on Tuesday, Neal Katyal, the acting solicitor general, offered a defense whose breathtaking simplicity cut through all the nonsense being peddled by the mandate's opponents. “Everyone is going to seek health care,” he said. “Nobody can know precisely when.” That's why it's important to establish a fairer and more rational way of covering the costs in advance.

Virginia Attorney General Ken Cuccinelli made a revealing argument against the mandate. He kept referring to health insurance as a “private product.”

There's the rub. Health care is anything but a “private product.” The system is replete with cross-subsidies from hospitals, taxpayers and the already insured. There is no law requiring a car dealer to give you a new Lexus if you just walk onto the lot that compares to the statute requiring hospitals to treat you if you show up. We consider health care a largely public good, but we don't pay for it that way. That's foolish.

If a conservative majority on the Supreme Court eventually strikes down the individual mandate, it won't change this reality. It will simply delay our day of reckoning as we keep trying to rationalize the mishmash that is our private/public health care system. Like it or not, collective provision will always be central to any humane health care system. Our competitors understand that. The sooner we do, the better.