The Right to Health Care Is Not on Trial: Does the Supreme Court’s Review of Health Reform Matter?

As the U.S. Supreme Court embarks on its review of the Patient Protection and Affordable Care Act (ACA), advocacy for and against the law is reaching fever pitch, driven by long and intensive planning efforts. If only the vision for a truly universal, publicly funded health care system attracted the same fervor, funding, and strategic savvy! 

It is almost a year ago that a people’s human rights movement prompted the state of Vermont to pass the country’s first law for providing health care as a public good, yet tepid discussions about replicating this organizing model elsewhere pale in comparison to the large-scale strategic planning that went into the ACA defense (let alone its defeat). Needless to say, the fight over the federal law is less about health care for the people and more about job security for the president and the power grab of the radical right.

This Supreme Court case illuminates how the radical right has continued its ascent to power during the Obama presidency, and how liberal advocacy groups have been reduced to defending policy positions that were only recently vacated by conservatives. The case against federal health reform is a case without legal merit, pushed through the courts by a well-oiled right-wing machine that has become so sophisticated that it can credibly ridicule policies – such as the individual mandate – that its own politicians and think tanks favored only a few years ago.

This is not to argue that the ACA itself doesn’t matter. When the Supreme Court issues its ruling this summer, it can change the course of federal health care reform and eliminate requirements imposed on states, along with federal funding. State-based campaigns for universal health care will have to take note. The court can also repeal both harmful and helpful provisions of the ACA; most prominently, the “individual mandate” requiring individuals to buy health insurance, on the one side, and the Medicaid expansion on the other. The court may decide to void one, but not the other; it may decide to let provisions stand that are not related to the purchase of insurance – or not. Will it matter to the ongoing struggle for a universal, publicly funded health care system? Will it matter to the people who suffer from a lack of health care? Those should be the questions of the health care reform debate.

For the universal health care movement, the ACA may well be a greater hindrance than help. NESRI’s human rights assessment showed that the ACA fails to meet human rights standards. Rather than guaranteeing universal health care, the law excludes many millions of people from access to coverage and care. Instead of ensuring that care is available to all who need it, the law requires individuals to buy private insurance. In short, the ACA strengthens the private, market-based health care system, which treats health care as a commodity, sold by a for-profit industry that is propped up by public subsidies.

For some people unable to access health care, the ACA does contain important improvements. (Note, however, NESRI’s assessments of how the ACA fails to fundamentally improve the health rights of women, people of color, and immigrants). The Medicaid expansion, in particular, is designed to enhance access to care for many poor people, though only in states that have failed to expand public health care programs on their own account. But there was – and is – no need to link this expansion to the ACA’s insurance provisions. The Medicaid expansion and other helpful initiatives can easily work as standalone measures.

The individual mandate, which entrenches the for-profit insurance market by herding “customers” endowed with public subsidies into the suffocating embrace of insurance corporations, stands at the center of the case against the ACA. Whereas the human right to health care entitles people to receive the care they need, regardless of payment, the market mandate forces everyone not covered by public programs to buy private insurance or pay a tax penalty. From a human rights perspective, it is clearly unacceptable to make access to care dependent on the purchase of private coverage sold for no other purpose than to generate revenue and profits for an insurance company. By contrast, human rights do allow a state or country to set up a public or social insurance program that requires universal participation. It is no small irony that the ACA’s constitutionality would not be questioned if it had headed the demands of single payer advocates and required everyone to take part in a federal tax-funded public program like Medicare. It is the treatment of people as consumers of market-based coverage that has prompted the challenges from both right-wing and single payer opponents of the ACA.

Yet we must avoid falling into the trap of repeating conservative arguments against the individual mandate. Some single payer supporters have filed an amicus brief in favor of striking the individual mandate, yet in order to do this, they felt compelled to use the same legal arguments the radical right has pushed for many decades. They seek to interpret the Constitution’s commerce clause as limiting congressional powers when it comes to making rules for the 50 states. This is a scary argument, since many of this country’s most progressive laws, including civil rights and women’s rights legislation, were dependent on congressional actions that outlawed rights violations in the states. The flaws of a market mandate cannot be addressed by undermining necessary federal powers and pandering to “states’ rights.”

The Supreme Court’s review of the ACA constitutes a momentous distraction for advocates. At the same time, it is impossible to ignore the threat it entails to both federal powers and public programs for poor people. Yet a repeal of the individual mandate, and presumably the related insurance regulations, could also offer a new impulse for states to follow Vermont and consider more meaningful reforms. Making health care a public good and outlawing rather than subsidizing a harmful industry would have to be part of a new phase of state-based reform initiatives. None of this will happen without the emergence of people’s movements organizing for the human right to health care. Vermont’s Healthcare Is a Human Right Campaign can serve as an inspiration, regardless of the fate of the Affordable Care Act.