Preventive Medicine Column
Dr. David L. Katz
Here is a passage from NY Times coverage of the decision by a federal judge in Virginia that the Obama Administration’s health care reform legislation is in parts unconstitutional: “Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration, while Democratic appointees have found for it.”
Richmond, we have a problem. The contents of the U.S. Constitution shouldn’t change when seen through a red lens, or blue. It makes reading the Constitution sound like reading tea leaves.
In the case of the controversial provision- the requirement that everyone buy health insurance or be penalized- what DID the Constitution mean to say?
Almost certainly: not a thing! When our Constitution was drafted, health insurance wasn’t on anybody’s radar (neither, for that matter, was radar). Medicine was primitive; hospitals were all but nonexistent; long-term care institutions did not exist. There was no dialysis, no organ transplantation, no open heart surgery, no angioplasty. Acute threat to life or limb generally meant…loss of life or limb. And when the medical services of the day were required and of any use, the barter system took care of the costs more often than not.
One need not be a Constitutional scholar (I hasten to note: I am not!) to know that the Constitution was silent on health care insurance for the same reason it was silent on Internet use. Such concerns were not part of the world in which the document was drafted.
But the Constitution is, of course, vocal about government powers and their limits. The Constitution says the government can’t force you to buy anything.
Or something like that. The states can force you to buy auto insurance if you drive a car. But, they can’t force you to drive- or own- a car. So- free will prevails! The Constitution is OK with this.
The state can’t force you to buy or rent an abode. But the authorities can hassle you interminably if you attempt to rest your head elsewhere- just ask a homeless person in any major city. Let’s call this one a bit gray.
Judge Hudson in Virginia stated that the government lacks authority “…to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.” The crux of the matter, then, is involuntarily entering the stream of commerce.
Alrighty, then; what about involuntarily bleeding to death? What about involuntary meningitis, or heart failure? Few people I know volunteer for medical calamities. Medical calamities are, quite predictably, involuntary. And there’s the rub.
On any given day, any of us can be involuntarily thrust into the “stream” of health care commerce by an involuntary disaster. Then the only question is: will we, or won’t we, have a paddle?
When life and limb are imperiled, we intervene- and worry about the bill afterward. Human decency requires nothing less. But afterward, there IS a bill- and someone has to pay it.
Leaving out the details, that someone will be us. It will be paid through our taxes, or paid in our health premiums. In other words, we, the insured, ARE being forced to ‘enter the stream of commerce’ involuntarily, to pay the bills of others.
That’s the problem with thinking of health care- and the insurance to pay for it- as if it were any other commodity. People can just say no to any other commodity. They can’t say ‘no’ to resuscitation from cardiac arrest – at least not until after they are a beneficiary of it!
And worse than that- the only bills we pay on behalf of the uninsured are typically high-cost, post-calamity bills. We don’t pay for preventive care; those opting out don’t get it. Those on the outside won’t get their cholesterol checked, but they will get CPR.
I contend that health care access does belong in the Constitution, but not as an afterthought in a clause about commerce. Health insurance is not like any other ‘commodity,’ and flows in a current quite apart from the prevailing ‘stream of commerce.’
Universal access to life- and limb- saving services and tried-and-true preventive care is a public good, and a human right. The Bill of Rights is where it belongs. But the Bill of Rights, for now, includes no such entry.
So perhaps we could be a bit more humble about imposing our political views of today on what we think the Constitution meant to say yesterday. That the meaning of the Constitution varies diametrically when seen from the left or seen from the right is, in a word, wrong. We are putting words never spoken into the mouths of our Founders.
Maybe they didn’t answer this question for us, and we have to figure out for ourselves what constitutes the right thing to do.
Dr. David L. Katz; www.davidkatzmd.com