Behind That Door

Everyone knows the conventions of most every Hollywood horror movie. A group of young people, which must include at least one hot babe, finds themselves at night in the middle of nowhere, except that there’s this dark mysterious house on the hill, and in spite of their misgivings, they decide to check it out. They never look at each other and say nope, let’s not go up there – there’s just no reason to bother. It’s always something – pride or a dare or curiosity, or it’s raining – so they end up in that incredibly spooky house. The details may vary – it might be a castle not a house, or an old hotel or school. Abandoned old mental hospitals are even better. But there’s always a door that no one should open, and the hot babe stands in front of it, conflicted. But because she’s innocent or charmingly naïve, or kind of stupid, she slowly opens that door – the sound editors add loud, slow creaking of course – these movies need good Foley artists. Then the audience reacts as the audience is supposed to react. No, DON’T OPEN THAT DOOR!

But she has done it, and there’s a monster behind it, or a killer of some sort – it’s never just a closet full of old comic books, or even worse, a boring empty closet with a few random coat hangers. And she dies, or is turned into a zombie, or a vampire, or her body is occupied by an alien from outer space or by Satan – it varies with the movie.

But everyone knew something awful was going to happen. They paid good money to see what they expected to see. They didn’t pay to see those young people decide to forget the spooky house on the hill and shrug and move on, in search of a Taco Bell or McDonalds. They paid to see the horror – as everyone loves imagining the worst. It’s human nature. What could possibly go wrong? Plenty – and we all know it. That’s probably how most people see life. Call it fatalism. In Hollywood they call it profit.

In Washington they call it the last week in June, when the Supreme Court will announce its final decisions for the term, when it’s clear to everyone they will declare the Affordable Care Act unconstitutional, or at least declare that the individual mandate, requiring that all Americans be part of the healthcare insurance risk pool, is unconstitutional – which will make every other part of the law impossible to finance. There can be no requirement that insurance companies cover those with preexisting conditions and all the rest – insurance companies cannot comply with any of that stuff unless the risk pool is massive, and national, and inclusive. It would bankrupt them. So it all falls down.

This is the horror the Democrats must face – the end of the dream of any sort of basic healthcare coverage for all citizens, or for even any coherent national healthcare policy. But like the kids in the horror movie they walked right into it. They opened the door. The Republicans win big too – Obama’s signature achievement goes down in flames, and in spite of a healthcare system in further escalating chaos and tens of millions of Americans now suddenly without health insurance at all, it’s worth it. They can defeat Obama in November. It’s a nightmare for the Democrats, and for tens of millions of Americans. It’s their House on Haunted Hill.

They should have seen it coming and not been innocent or charmingly naïve, or kind of stupid. In late March, in the oral arguments on the matter, they should have seen it coming, considering what Scalia said about how this would force young people to buy something they just didn’t need:

We’re not stupid. They’re going to buy insurance later. They’re young and – and need the money now. When they think they have a substantial risk of incurring high medical bills, they’ll buy insurance, like the rest of us.

Why would you buy insurance against something that might happen in the future? You buy insurance when you know something is terribly wrong, or will go terribly wrong pretty damned soon.

Yes, that’s an odd view of insurance, which most people see as spending money, paying monthly premiums, most often reluctantly, as a hedge against what might happen, no matter what the situation is at the moment. But never mind – they say Scalia is a brilliant man.

Solicitor General Donald Verrilli didn’t get it, and got all practical:

They’re going to make that calculation that they won’t get it until they’re sick and they need it, and so the pool of people in the insurance market gets smaller and smaller. The rates you have to charge to cover them get higher and higher. It helps fewer and fewer – insurance covers fewer and fewer people until the system ends.

Scalia was unmoved, and Anthony Kennedy, considered the swing vote here, was just inscrutable:

In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there are some severe moral criticisms of that rule, but that’s generally the rule.

Let’s see. People should buy insurance. It’s good for them, and maybe it’s good for the country, and the economy – and there are moral considerations here too. But the law has no concern with any of that – so don’t argue what’s right and good, just argue what’s legal.

And Samuel Alito drifted off into talk about making everyone buy burial insurance:

Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, “You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else.” Isn’t that a very artificial way of talking about what somebody is doing?

That was odd, but not as odd as when Scalia suggested that if the government could make people buy insurance, then it could make them buy those so-called healthy vegetables too:

Could you define the market? Everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.

Maybe Scalia doesn’t like broccoli – but the broccoli-argument first came up on Fox News and was repeated there many times, and finally three of the Justices were repeating it. Maybe Roger Ailes doesn’t like broccoli and sent them talking points. But nevertheless what was said by the conservatives on the Court in the oral arguments was that creaking door opening in every horror movie ever made. Don’t open that door. There’s a monster behind it.

Still, there’s no decision yet, as Jesse Holland notes in this AP item:

This is information that could move markets, turn economies and greatly affect this fall’s national elections, including the presidential contest between Obama and Republican challenger Mitt Romney. But unlike the Congress and the executive branch, which seem to leak information willy-nilly, the Supreme Court, from the chief justice down to the lowliest clerk, appears to truly value silence when it comes to upcoming court opinions, big and small.

No one talks, and that’s the way they like it.

Contrast this with the rest of the government, which couldn’t keep secret President Barack Obama’s direct role in supervising an unprecedented U.S. cyberattack on Iran’s nuclear facilities or the existence of a double agent inside al-Qaida’s Yemen branch who tipped the U.S. to a new design for a bomb to put on a jetliner.

The rest is Washington insider nonsense about who talks, about what, and why – if you like that sort of thing. But at Talking Points Memo, Pema Levy discusses what experts think as revealed in a survey conducted by Bloomberg News – and we’re talking about constitutional law professors at the nation’s top twelve law schools, considering whether the individual mandate is constitutional. Nineteen of the twenty-one respondents said yes, obviously – the law is clear and the precedents established. But five said that the Court will strike down the individual mandate anyway, and eight said it as a toss-up.

There’s the law, and then there’s the monster behind the door. And maybe all that hostile questioning during oral arguments shows what will happen. Or maybe not:

In one response, Jesse Choper, a law professor at the University of California at Berkeley, dismissed the “hostile” questions from the conservative justices. Instead, he said the Supreme Court is likely to uphold the mandate due to precedent. “It’s relatively straightforward – if they adhere to existing doctrine, it seemed to me they’re likely to uphold it.”

And on the other side:

Christina Whitman at the University of Michigan’s law school gave more weight to oral arguments than precedent in making her prediction. Whitman said that although precedent “makes this a very easy case,” the mandate is likely to be overturned based on what she heard during the arguments in March. “But the oral argument indicated that the more conservative justices are striving to find a way to strike down the mandate,” she said.

These guys listened to Fox News and they’ll find a way to bend the law. They’ll use broccoli. There’s killer broccoli behind that door you shouldn’t open.

But this is interesting:

Almost all of the respondents, 18 out of 21, said that the Supreme Court will lose credibility if the mandate is struck down in a 5-4 decision. If that should happen, “it looks like the court is simply an arm of one political party,” University of Chicago law professor Dennis Hutchinson told Bloomberg.

That’s not news, but most of them agreed that only the individual mandate would be struck down, not the entire law, except for Bruce Ackerman of Yale:

“I continue to find it extremely unlikely that Justices Roberts and Kennedy will support a 5-4 decision that has such an insubstantial basis in 75 years of Supreme Court case law,” Ackerman said.

What could possibly go wrong? And the hot young babe opens the mysterious door.

Sahil Kapur has more on what tea leaves there are to read:

Justice Ginsburg, a likely vote to uphold the law, last week foreshadowed “sharp disagreement” in the high-profile decisions to come this month. “Some have described the controversy [over the health care law] as unprecedented,” she said at a legal conference.

“If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall?” she said, according to CNN. “Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

Ginsburg evoked “the utility of dissenting opinions” to “propel legislative or executive change.”

Ginsburg seems to be suggesting Congress or the president will have to come up with an alternative to the individual mandate, some other way to create a massive risk pool, and maybe they can use her dissent to get something done. She’s way ahead of them.

Scalia, on the other hand, is doing what he must:

Meanwhile, Justice Scalia published a book this week in which he found fault with Wickard v. Filburn, the 1942 ruling that constitutes the legal foundation for the constitutionality of the individual mandate. The decision – which granted Congress broad authority to regulate activities that have a substantial effect on interstate commerce – has since been reaffirmed and expanded, most recently by the Supreme Court in the 2005 Gonzales v. Raich case.

Notably, Scalia concurred with the 6-3 majority in Raich that relied heavily upon Wickard to authorize the sweeping federal power in question. His admitted reversal on the Commerce Clause just ahead of the health care ruling – “wisdom has come late,” he writes – indicates that the outspoken conservative justice is laying the groundwork to strike the law down, which he not-so-subtly hinted he’ll do during oral arguments back in March.

He’s ready to throw out all precedent, even his own – he’s suddenly decided he’s been wrong all these many years. But if, as he suggests, everyone has been wrong about the Commerce Clause all these years, that would mean much of the civil rights law settled in the sixties most be overturned – all that stuff about fair housing and public accommodation and where you have to sit on the bus. There are other monsters behind that door.

And everyone is getting fatalistic:

The ‘Obamacare’ lawsuits were initially seen as a long-shot as even conservative scholars agreed that the individual mandate comfortably fits within longstanding judicial precedent. The magnitude of the shift in expectations since then was embodied last week, with Republicans openly preparing for victory and Democrats admitting they’re hedging their bets. …

Progressive supporters of the law, fearful that an unfavorable ruling will give their party cold feet, are downplaying the importance of the individual mandate to the overall law. That view cuts against a policy consensus that covering pre-existing conditions is problematic without a requirement to purchase insurance. Democratic Party stalwart Howard Dean went further in dismissing that: “I don’t give a damn about the individual mandate,” he said. “It was a foolish thing to do anyway, and I hope it does get thrown out.”

This is odd:

So what caused such a seismic shift in expectations? Part of it was the relentless attacks from Republicans and the conservative movement decrying the mandate as federal overreach, which mainstreamed a fringe legal theory.

“We haven’t seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage,” the legal scholar Orin Kerr, an early libertarian skeptic of the ‘Obamacare’ lawsuits and former clerk to Kennedy, told The New Yorker. “There were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.”

It is, and Brian Beutler reports that the Democrats are preparing for all contingencies – provisions guaranteeing that everyone can buy health insurance regardless of pre-existing conditions, and cost-sharing to allow high-risk people to afford insurance. But how to develop a big enough risk pool to cover such things is unclear. It’s mostly happy-talk.

Beutler also adds this:

The fact is that if the mandate falls next week, nothing will happen. Then the next week, nothing will happen. Nothing again the week after that – and nothing will continue to happen for the next 70 weeks, which is roughly when the bulk of the law takes effect. In the meantime, Congress can do something, or it can do nothing. Democratically controlled states can step in, or not. If lawmakers move aggressively and fix it in advances, great. If they don’t and then in 2014 the reforms start to wobble, Congress will do something, or a lot of states will pass their own laws to broaden the risk pools, and things will settle down. That’s my hunch at least – that if the policy becomes unsustainable, then the politics of not fixing it will be unsustainable too.

So it all makes sense:

Presumably that’s why President Obama’s telling his supporters he might have to “revisit” health care in his second term, rather than, say, in the middle of the campaign, when he’ll probably want to avoid using the word “mandate” altogether. If he loses, then of course the mandate’s probably dead. But in that case, it stands to reason that the mandate and much of the rest of the law will vanish anyway, regardless of what the Court does. Which I guess is a long way of saying there’s an appeal to both approaches but it’s the sort of problem that, perhaps inelegantly, will eventually solve itself.

Now, that’s real fatalism, but Igor Volsky at ThinkProgress offers Ten Things You Would Miss about Obamacare which includes these:

Access to health insurance for 30 million Americans and lower premiums – more than 30 million uninsured Americans will find coverage under the law.

And now they won’t, and there are these that will be gone:

The ability of businesses and individuals to purchase comprehensive coverage from a regulated marketplace…

Insurers’ inability to discriminate against people with pre-existing conditions – beginning in 2014, insurers can no longer deny insurance to families or individuals with pre-existing conditions. Insurers are also prohibited from placing lifetime limits on the dollar value of coverage and rescinding insurers except in cases of fraud. Insurers are already prohibited from discriminating against children with pre-existing conditions.

That’s all gone, as are tax credits for small businesses that offer insurance and affordable health care for lower-income Americans, and mandates that women pay no more for health insurance than men, and that bit about young adults’ ability to stay on their parents’ health care plans. The more than three million folks already doing that will have to buy health insurance now, and fast, or do without. Discounts for seniors on brand-name drugs go away too. Medicare Part D reverts to its previous state, even if seniors have already saved more than three billion dollars on prescription drug costs under a current Affordable Care Act provision.

That’ll be gone. And the seventy thousand folks in the new temporary national high-risk pools will find themselves now uninsured and uninsurable. There was a monster behind the door. But Obama will be gone. That’s the price that must be paid to rid us of this meddlesome fellow.

Meanwhile there’s Theresa Brown, an oncology nurse and the author of Critical Care: A New Nurse Faces Death, Life, and Everything in Between – someone on the front lines. And she discusses a terminal patient who said he wished Obamacare actually had those Death Panels that Sarah Palin only imagined. He knew he was bankrupting his family, and Brown sees the problem:

Hospitals are filled with people like him, patients who will need thousands of dollars of medical care just to have a chance at staying alive. At the top of the list are those with a fatal cancer. But there are many other less obvious ones: a patient who got kidney failure from strep throat, a healthy 22-year-old who needed a stay in the intensive-care unit to survive the H1N1 virus, a flight attendant far from home and desperately short of breath because of a blood clot in the lungs.

As a result of the 1986 Emergency Medical Treatment and Labor Act, patients needing immediate care cannot be turned away from an emergency department because of an inability to pay. But who picks up the cost of that visit and any later care that’s required? Either uninsured patients get huge bills from the hospital, or the rest of us pay for their care indirectly, through higher insurance premiums and increased out-of-pocket costs and deductibles.

But that’s becoming economically unsustainable:

The uninsured are not paying into the system up front, but one way or another the costs of their care are still being covered. To address this cost-benefit disparity, the Affordable Care Act requires all Americans to buy health insurance – the idea being that if most of us pay regular insurance premiums, then we as a nation will have enough money in the insurance pot to cover everyone needing care at any one time. Additionally, requirements for getting insurance will become more uniform, and costs will drop.

But if the Affordable Care Act is overturned then the insured will continue to subsidize the uninsured. Costs of coverage and care will jump and that will then make insurance affordable for fewer and fewer people:

Critics of the Affordable Care Act argue that many Americans neither want nor need health insurance, and that it forces them to pay for coverage against their will. But just as the government collects taxes to pay police officers and firefighters, the individual mandate compels Americans to pay for a service they may not immediately want but could at any time desperately require.

It’s pretty simple:

Much of the debate has focused on the role of government in everyday life. I don’t discount the value of that question, but my focus is on real needs. I treat patients with $20,000 chemotherapy injections or monthly doses of IV immunotherapy that cost $10,000 a bag. If they don’t receive these drugs my patients will die, so to me, the most pressing issue here is compassion. Without change, the patients will resemble the man with leukemia – human beings without insurance terrified that their lives aren’t worth what it will cost to save them, all because of a broken but fixable system.

Crowds at conservative rallies have, astoundingly, cheered the idea that uninsured people should, if they become ill or badly hurt, be left for dead. It’s easy to imagine such a thing in the heat of a rhetorical moment. But the reality is, I hope, harder to embrace. Because reality means a real person – you, me, someone we know – condemned to a possibly preventable death because, for whatever reason, they don’t have insurance.

So let’s get real:

My patient with leukemia is dead. He got the best care money could buy, but his disease only briefly went into remission and he went home on hospice care. Should he, because he did not buy insurance, have been denied this chance for a cure?

The Affordable Care Act is not the health care solution everyone wants, but when patients wish for death panels as a response to leukemia, something needs to be done, and soon.

So that’s the real horror story. It’s not the kids in the haunted house. But there is a monster behind the door.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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