Thursday, March 29, 2012

Mr. Roberts and the health-care debate

FOR John Roberts, Chief Justice of the Supreme Court of the United States, it was just one of those things ... a trip to the hospital on cerebral wings.

On July 30, 2007, with the temperature in the high 70's, the Chief Justice suffered a seizure that caused him to fall somewhere between five and 10 feet while on a dock near Roberts’ summer home on Hupper Island, Maine. Roberts, who suffered only slight scrapes in the fall, was taken with some dispatch to Penobscot Bay Medical Center in Rockport, Rockland, maybe 10 miles away. He spent the night there for observation.

Happily, it was apparently no big deal. In a statement, the Supreme Court said the Chief Justice had “fully recovered from the incident,” and that a thorough neurological evaluation “revealed no cause for concern.”  Doctors told CNN that the incident was a “benign idiopathic seizure.”

Apparently resembling a similar episode that occurred for no reason back in 1993.

No big deal.

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Denise Grady and Dr. Lawrence K. Altman, reporters for The New York Times, explored scenarios that were not so benign in an August 1 story:

“Because the seizure was his second … he meets the criteria for epilepsy, and he and his doctors will have to decide whether he should take medication to prevent further seizures,” the reporters wrote, citing doctors not involved in Roberts’ care.

“Even though his two seizures occurred 14 years apart, they meet the criteria for epilepsy because they were ‘unprovoked,’ meaning that they were not caused by a head injury,” or other causes, they reported.

A specialist in epilelpsy begs to differ. “Epilepsy diagnosis is a meaningless term in this case,” says Dr. Frank Gilliam, director of the epilepsy center at Columbia University Medical Center. In an interview with Time magazine, Gilliam said that one percent of the U.S. population is diagnosed with epilepsy, and 30 percent of those cases needed no medical treatment. “It's a wastebasket term for anyone who has had two or more unprovoked seizures,” he said.

Here’s every hope that Dr. Gilliam’s assessment is correct. Long life to Chief Justice Roberts; in the short term, as the Roberts Court deliberates the fate of the Affordable Care Act, he’s got a lot to do. But also for the course of the debate, Chief Justice Roberts may be an accidental symbol of the need for health care reform, a solid test case of how the current health-care system plays favorites, by coincidence and by design, with the universality of a common need and the social and economic inequalities related to those in this country who get that need satisfied, and those in this country who don’t.

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MANY on the conservative right — from former Pennsylvania Sen. Rick Santorum, his presidential campaign writhing in its death throes, to the mandarins of conservative electronic media and talk radio — are framing the totality of the Obama health-care law as an epic struggle for the preservation of federalism, the alignment and balance of power between federal and state governments.

This howling class has focused the crux of its argument on Article I, Section 8, Clause 3 of the Constitution, the so-called Commerce Clause, 16 words that convey to Congress the “Power ... to regulate Commerce ... among the several States.” Obamacare opponents have screamed for years at how the Obama health-care law is a repressive eat-your-peas law that eviscerates personal freedom; their argument also entertains the idea that for the court to approve it would be its own overreach of federalism, a breach of the separation between the elected branches of government and the judiciary.

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Rebecca L. Brown, Newton Professor of Constitutional Law at the University of Southern California Gould School of Law, refutes these expedient interpretations in a lapidary essay published Feb. 7 on the Web site of the New Orleans Times-Picayune.

“The challengers [to Obamacare] pluck out one situation from the vast interstate reach of the statute -- failure to buy insurance -- to designate as outside the meaning of "commerce," Brown writes.

“A deep American instinct insists that certain government interferences -- federal or state -- go too far in invading personal liberty. ...

“Powerful or not, this is not a federalism argument; not a claim about which government should set policy, but about what policy is set. ...

“As framed, the argument seeks instead to import -- surreptitiously -- the individual-rights impulse into the Commerce Clause, whose purpose is the different one of protecting from federal incursion the states' sovereign right to govern. The individual mandate does not implicate that federalism commitment.

“There is no serious argument that health care and insurance purchasing are not economic, or that they affect purely local interests -- the arguments in all prior Commerce Clause challenges. More importantly, no one urges that the health-care crisis can or should be addressed solely by 50 states acting independently. The undeniable strength of the national interest in this law renders it profoundly different from prior laws facing commerce challenges.”

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BROWN CONTINUES: “Yet the court is asked to invent a novel, artificial restriction on Congress's commerce authority, by arbitrarily carving out a failure to buy from "commerce" or a requirement to buy from "regulate" -- to vindicate a value, however laudable, having nothing to do with the policies underlying that clause. The requested judicial craftsmanship is dangerous because it finds no support in the Constitution's text, original understanding, precedent or theories of federalism, and thus undermines judicial legitimacy.

“Because the individual mandate neither threatens federalism nor violates recognized individual rights, the vote on the court should be unanimous — not because the justices like the law, but because they respect the Constitution.”

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The professor's insightful analysis has at its core the responsibility a government has to its people. When everything else is stripped away, it awakens the questions at the core of the health-care debate:

Does a society have a clear and present interest in the health and well-being of the people who inhabit it? Without question. Do a society’s elected leaders have a clear and present interest in seeking enactment of laws that enhance the health and well-being of those citizens? The answer is yes — or it should be in an enlightened society.

The relentless back & forth over the individual mandate — the linchpin of the Obama health-care law, and the trigger for the hue and cry against it — obscures the overriding national self-interest that a nation has in itself, first and foremost.

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THAT'S WHY this is way more than a law governing commerce, a string of citations and arguments related to the purchase of a “product.” This is bigger than that. Affordable health care, and its availability to the cross section of the nation, is more than a “product” like peas or lumber or truck engines. Or broccoli.

Affordable health care is nothing less than a statement that a nation intends to further its existence, by investing in the citizens that ensure its existence.

All the full-throated libertarian cries of Obamacare as an encroachment of liberty and an unwarranted government intrusion into everyday lives must confront that. They have to face the fact that there’s a compelling, unified national interest in health-care reform because there’s a continuing everyday national need for health-care reform, one that transcends the particularities of the individual states. They have to contend with how the four freedoms cherished by this nation don’t include freedom from sickness, or freedom from accidental injury. Or devastating diagnoses, and their equally devastating financial fallout.

Or freedom from hopefully benign idiopathic seizures.

The full-spectrum world-class health care that Chief Justice John Roberts certainly enjoys, and the freedom from having to ever having to worry about paying for it, is a world away from the overwhelming majority of Americans.

The Obama health-care law is as close as we’ve come as a nation to correcting that imbalance. The first truly comprehensive health-care reform in the nation’s history needs to advance on its merits, with the Justices of the Supreme Court sticking to a thorough application of the Constitution as written, not as conjured or envisioned through a partisan lens.

There are some peas we need to eat.

Image credits: Roberts: Robert F. Bukaty/Associated Press.

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