Washington Post

Health reform will survive its legal fight

Tuesday, December 14, 2010

In March, New Hampshire preschool teacher Gail O'Brien, who was unable to obtain health insurance through her employer, was diagnosed with an aggressive form of lymphoma. Her subsequent applications for health insurance were rejected because of her condition. With each round of chemotherapy costing $16,000, she delayed treatment because she knew her savings wouldn't last.

Then President Obama signed the Affordable Care Act. Thanks to this law, O'Brien is getting treatment through a temporary program that provides affordable coverage to people who've been shut out of the insurance market because of a preexisting condition. Even better, she knows that in 2014 insurers will be banned from discriminating against her or any American with preexisting conditions.

That's what makes the recent lawsuits challenging the Affordable Care Act so troubling. Roughly 20 cases question the new law's individual responsibility provision, which says that Americans who can afford to must maintain basic health coverage.

Federal courts in Michigan and Virginia have upheld the law as constitutional, but Monday, a federal court in Virginia reached the opposite result. These and other cases will continue through our courts as opponents try to block the law. But these attacks are wrong on the law, and if allowed to succeed, they would have devastating consequences for everyone with health insurance.

The majority of Americans who have health insurance pay a higher price because of our broken system. Every insured family pays an average of $1,000 more a year in premiums to cover the care of those who have no insurance.

Everyone wants health care to be affordable and available when they need it. But we have to stop imposing extra costs on people who carry insurance, and that means everyone who can afford coverage needs to carry minimum health coverage starting in 2014.

If we want to prevent insurers from denying coverage to people with preexisting conditions, it's essential that everyone have coverage. Imagine what would happen if everyone waited to buy car insurance until after they got in an accident. Premiums would skyrocket, coverage would be unaffordable, and responsible drivers would be priced out of the market.

The same is true for health insurance. Without an individual responsibility provision, controlling costs and ending discrimination against people with preexisting conditions doesn't work.

The legal arguments made against the law gloss over this problem even as opponents have sought to invent new constitutional theories and dig up old ones that were rejected 80 years ago.

Opponents claim the individual responsibility provision is unlawful because it "regulates inactivity." But none of us is a bystander when it comes to health care. All of us need health care eventually. Do we pay in advance, by getting insurance, or do we try to pay later, when we need medical care?

The individual responsibility provision says that as participants in the health-care market, Americans should pay for insurance if they can afford it. That's important because when people who don't have insurance show up at emergency rooms, we don't deny them care. The costs of this uncompensated care - $43 billion in 2008 - are then passed on to doctors, hospitals, small businesses and Americans who have insurance.

As two federal courts have already held, this unfair cost-shifting harms the marketplace. For decades, Supreme Court decisions have made clear that the Constitution allows Congress to adopt rules to deal with such harmful economic effects, which is what the law does - it regulates how we pay for health care by ensuring that those who have insurance don't continue to pay for those who don't. Because of the long-held legal precedent of upholding such provisions, even President Ronald Reagan's solicitor general, Charles Fried, called legal objections to the law "far-fetched."

As these lawsuits continue, Americans should be clear about what the opponents of reform are asking the courts to do. Striking down the individual responsibility provision means slamming the door on millions of Americans like Gail O'Brien, who've been locked out of our health insurance markets, and shifting more costs onto families who've acted responsibly.

It's not surprising that opponents, having lost in Congress, have taken to the courts. We saw similar challenges to laws that created Social Security and established new civil rights protections. Those challenges ultimately failed, and so will this one.

Rather than fighting to undo the progress we've made, and returning to the days when one out of seven Americans was denied insurance due to their medical histories, supporters of repeal should work with us to implement this law effectively. The initial decisions about the Affordable Care Act will be reviewed on appeal. We are confident that the law will ultimately be upheld.

Eric H. Holder Jr. is the attorney general of the United States. Kathleen Sebelius is secretary of health and human services.

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For the sake of all the people without health care insurance at present, I hope it survives.

-- Edited by Sanders on Tuesday 14th of December 2010 01:24:58 PM