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Challenging Obamacare

by Stephen Lendman

March 26, 2012

Last November, the Supreme Court agreed to hear challenge arguments against Obama's Patient Protection and Affordable Care Act (PPACA) - aka Obamacare.

From March 26 - 28, oral arguments on PPACA’s constitutionality will be heard, especially certain provisions. A decision is expected by June.

Contentious issues include:

  • mandating all adults have health insurance or be taxed to compensate;
  • PPACA's Medicaid expansion provisions; and
  • whether the Anti-Injunction Act bars courts from reviewing the individual mandate until it's effective in January 2014; "severability" also is also at issue: namely, whether one issue can be struck down while leaving others intact.

Many of PPACA's provisions took effect. Others, including the individual mandate, begin in January 2014. "Severability" opponents say PPACA provisions are too interconnected to permit striking it.

Lower courts differed on its constitutionality. Last June, the Six Circuit Court of Appeals upheld it based on the Constitution's Commerce Clause. In August, a Florida district judge ruled it unconstitutional. The Eleventh Circuit Court of Appeals overturned his decision. It found PPACA could stand if the individual mandate's removed.

Last November, the US Court of Appeals for the District of Columbia also upheld the individual mandate based on the Commerce Clause.

The Supreme Court chose to review the Florida case. It includes 25 other states as plaintiffs, as well as the National Federation of Independent Business.

In addition, 136 amicus briefs ("friends of the court") were filed for Court consideration. It's a third more than the previous record number.

Appellate lawyers specializing in preparing them say they cost from $25,000 - $50,000 each. During the Court's last term, justices cited only 8% of 628 NGO briefs filed. Of those, around half were written by prominent Washington-based attorneys specializing in Supreme Court cases.

Former Justice John Paul Stevens complained of amici fatigue. Justice Antonin Scalia said he lets law clerks read them. As a result, groups filing them face stiff headwinds.

The High Court could rule several ways, including:

  • striking the entire law, including the individual mandate;
  • upholding the entire law;
  • striking the individual mandate alone; or
  • delay ruling for now.

In the meantime, debate again takes center stage, at least for a few days before again erupting when the Court rules in June.

PPACA: A Boon to Industry Predators

In 2010, Ralph Nader called Obamacare a sellout to Big PhAMA and other healthcare giants, saying:

It doesn't "provide universal, comprehensive or affordable care to the American people. It shovels hundreds of billions of dollars of taxpayer money (to predators that) created the problem."

"It requires no contractual accountability or other benefits for people denied coverage under a pay-or-die system that's the disgrace of the Western world."

There's no public option. Millions are left uninsured, millions more underinsured, and as poverty increases, so will their ranks exponentially.

"There's (also) no free choice of doctor and hospital under this. There's all kinds of exploit(ive provisions to let) health insurance (and drug) companies continue their ravenous ways over people who are (the) most vulnerable....when they're sick or injured."

Former CIGNA vice president, Wendell Potter said Obamacare lets insurers shift costs to consumers, offer inadequate or unaffordable access, force Americans to pay higher deductibles for less coverage, and end up scamming them.

"What worries me," he said, "is that people who are forced to buy coverage and all they can afford to buy is a high deductible. (So) if they get really sick, they have to pay so much out of their own pockets that they're going to be filing for bankruptcy or (lose) their homes."

What the 1913 Federal Reserve Act did for bankers, PPACA may do for insurance, PhAMA, and hospital chain predators. Controlling one-sixth of the economy, they're more than ever able to game the system by:

  • making it dysfunctionally worse;
  • selling junk insurance, leaving millions underinsured;
  • keeping premiums unaffordable for full coverage;
  • adding high deductibles and co-pays for less coverage;
  • denying care by delaying, contesting, or preventing access;
  • letting pharmaceutical companies provide toxic drugs at unaffordable prices, and avoid generic competition on new products by lengthy patent protection periods;
  • assuring providers more customers and higher profits by requiring individuals and families buy insurance or be penalized; and
  • by 2018, imposing an excise tax on so-called "Cadillac" plans to cut corporate costs, make workers pay more, force many to settle for less, be underinsured, and unable to obtain costly care without paying for what they can't afford.

In March 2010, Physicians for a National Health Program (PNHP) took "no comfort in seeing aspirin dispensed for the treatment of cancer."

Instead of fixing the "the profit-driven, private health insurance industry....this costly new legislation enrich(es) and further entrench(es it by forcing) millions of Americans to buy" defective coverage.

As a result, they're worse off at a cost of hundreds of billions of taxpayer dollars given predators to game the system for profit.

Problems PNHP listed included:

  • 23 million or more Americans will be uninsured; it "translates into an estimated 23,000 unnecessary deaths annually and an incalculable toll of suffering;"
  • millions will be forced to buy insurance "costing up to 9.5 percent of their income but covering" only 70% of their expenses; they'll be left one serious health emergency away from bankruptcy and/or loss of their homes; moreover as costs rise, affordability declines proportionately;
  • for most people, good policies are unaffordable or "too expensive to use because of the high co-pays and deductibles;"
  • insurers get around $450 billion in public money "to subsidize (buying) their shoddy products;" they and other industry giants are also more than ever emboldened to block future reform;
  • safety-net hospitals lose billions in Medicare and Medicaid payments; tens of millions of under and uninsured are left vulnerable without care when they most need it;
  • workers with employer-based coverage face higher costs, fewer benefits, and restrictions on selecting providers;
  • most will be hamstrung with future stiff costs because of unrestricted premium hikes, higher deductibles and co-pays;
  • costs keep rising exponentially because Obamacare doesn't contain them; providers can raise prices freely;
  • so-called new regulations (like ending pre-existing condition denials) are riddled with loopholes, ambiguities, and legal interpretations to let insurers manipulate them advantageously; and
  • "women's reproductive rights (are) further eroded, thanks to the burdensome segregation of insurance funds for abortion and all other medical services."

In other words, PPACA scammed the public with a package of expensive mandates, new taxes, sweetheart deals, and "a perpetuation of the fragmented, dysfunctional, and unsustainable system that is taking such a heavy toll on our health and economy today."

It gets worse. Last summer, a study showed nearly one in 10 large and mid-sized companies planned to stop providing healthcare to employees by 2014. Another one suggested close to a third opting out once all PPACA provisions take effect.

Moreover, one in three employers provide temp or part-time workers no coverage. Expect that percentage to rise sharply.

Businesses with over 50 employees dropping coverage face fines up to $2,000 for each not covered. Providing it costs much more. In addition, most others providing insurance plan shifting more costs to workers.

Except for the very poor, households (individual or family) face 2% of income penalties.

PPACA’s a can of worms. Industry predators alone benefit. Growing millions are on their own out of luck.

No Debate on Universal Coverage

The Supreme Court challenge excludes the only equitable, effective solution: universal government provided full single-payer coverage, including dental, drugs, and everything else health related.

Everyone in. Nobody out, except industry predators able to game the system for profits at the public's expense.

A Final Comment

Now age 88, Arnold S. Relman is Harvard Medical School Professor Emeritus and former New England Journal of Medicine editor-in-chief.

Ahead of PPACA's enactment, he said "our health policies have failed to meet national needs because they have been heavily influenced by the delusion that medical care is essentially a business."

Current proposals "for a more 'consumer-driven' health system are likely to make our predicament even worse. A different kind of approach could solve our problems, but it would mean a major reform of the entire system, not only the way it is financed and insured, but also how physicians are organized in practice and how they are paid."

In 1980, he called America's health system the "medical-industrial complex," or in his assessment, a danger equivalent to Eisenhower's "military-industrial complex."

He said market-based medicine assures unaffordability, "variable quality," and inequity for millions. Only bottom line priorities matter. Patient needs are sorely neglected.

"Our present medical care system lacks the structure and incentives to provide proper care....A real solution to our crisis will not be found until the public, the medical profession, and the government reject the prevailing delusion that health care is best left to market forces."

"Once it is acknowledged that the market is inherently unable to deliver the kind of health care system we need, we can begin to develop the 'nonmarket' arrangements for the system we want."

On March 19, The New York Times published Relman's letter headlined, "The Health Law Mandate," saying:

The Times' March 9 article titled, "White House Set to Shape Debate Over Health Law" omits a key argument against PPACA's "mandated purchase of private insurance, the key issue before the Supreme Court."

He said 50 doctors and two nonprofit organizations filed an amicus brief. It argued that "Congress could avoid a mandate by legislating a national single-payer system that provides nearly universal insurance coverage."

Though flawed, comparable systems exist - Medicare and veterans' health benefits. "(N)o legal barriers prevent doing more."

"Since a mandate isn’t necessary for Congress to exercise its legitimate role in regulating health insurance, there is no justification under the Constitution’s 'necessary and proper' clause for such a legislative requirement."

How this argument influences the Court "remains to be seen. But the brief is another reminder that the single-payer idea, although currently off the table in Washington, should not be counted out."

It's all that's worth counting in as the only acceptable alternative. Healthcare's a vital need, a universal right no just society should deny all its citizens and permanent residents.

America isn't just and never was. That's the core issue. The High Court won't touch or resolve it.

People power alone can with commitment enough to accept nothing less than equity and justice for all, and not just on healthcare.

Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net.

:: Article nr. 86829 sent on 27-mar-2012 07:39 ECT


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