Supreme Court – Day 2, Part 1

If I had to sum up what happened on the second day of oral arguments at the Supreme Court last month, it would be this: Several of the justices demonstrated for the world that, while they may be experts in the law, they are anything but experts in the U.S. health care system. Of course, that didn’t apply to everyone, and it often seemed that those most likely to rule against the Affordable Care Act were those with the poorest grasp of health economics. What I’d like to do now is walk you through some of their more ridiculous comments.

Justice Kennedy, the guy that most experts think the outcome hinges on, asked quite early on “Can you create commerce in order to regulate it?” That’s not an absurd question, but it does underscore a theme that several of the justices continued to visit throughout the day, which is that they don’t think that everyone is already in the health care market by virtue of their existence. It came up when Justice Alito asked if there was a market for burial services (since everyone dies), and when he said, referring to healthy young people, “Isn’t it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.” To which Justice Ginsburg (who “gets” it) responded: “If you’re going to have insurance, that’s how insurance works.” She’s right, of course.

Then the analogies really broke down. For instance, Justice Scalia compared the health insurance market to the market for automobiles: “Mr. Verrilli, you could say that about buying a car. If people don’t buy cars, the price that those who do buy cars pay will have to be higher. So, you could say in order to bring the price down, you’re hurting these other people by not buying a car.” General Verrilli rightly responded that the health care market is different because the uninsured are “going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow–that–to which we’ve obligated ourselves so that people get health care.” To which Justice Scalia actually said “Well, don’t obligate yourself to that.” That’s right. Scalia is actually suggesting that the burden of the uninsured doesn’t have to be a burden, because we could just refuse to provide them care. He has a point, though. If this is going to be a country where the sick and the dying are refused treatment because they didn’t get insurance before their health declined, then we don’t need an individual mandate. That’s not the America I believe in.

At a later point, Scalia also said “When they think they have a substantial risk of incurring high medical bills, they’ll buy insurance, like the rest of us.” Man, this guy just doesn’t get it. I’m guessing he’s never heard of Joseph Stiglitz, who won the Nobel prize in Economics for, among other things, detailing the phenomenon of the “death spiral” in which, if only sick people buy insurance, the price keeps getting more and more expensive until the entire system collapses.

Finally, I’ll conclude this post with the comments of the counsel for the State of Florida who said “It is clear that the failure to buy health insurance doesn’t affect anyone.” It doesn’t? Is that why my health insurance premiums are inflated to account for the costs of uncompensated care? Maybe not in Justice Scalia’s world, but that’s precisely what happens in mine, and I’d like it to stop.