Posts Tagged ‘Supreme Court’

Birth control fight just shows job-health coverage link must be cut

December 12th, 2013

Should your boss have the right to keep you from getting birth control? This question is at the heart of two cases now before the U.S. Supreme Court involving a couple of companies whose Christian founders are suing for the right to deny their employees birth control coverage mandated by the Affordable Care Act. Oklahoma-based arts-and-crafts chain Hobby Lobby and Pennsylvania cabinet maker Conestoga Wood Specialties are arguing before the court that corporations have religious rights that should be protected by the Constitution’s guarantee of free exercise of religion. The justices are scheduled to hear the matter in March.

If Hobby Lobby and Conestoga prevail, and corporations are granted religious rights, how far would that go? Already under the ACA, health plans are not required to cover abortion. So what’s next? What if your boss belonged to a religious sect that opposed blood transfusions or HIV treatment? Could he or she then refuse to provide you health coverage that includes those services? The actions of Hobby Lobby and Conestoga are exactly why the connection between employment and health insurance must be severed. Without health coverage, birth control can be costly, especially for low-income women.

Fortunately, now that with the ACA, millions of Americans won’t be tied down to their jobs in order to keep their access to health care. But we don’t want to be a society where people who have jobs don’t have access to the kind of medical treatment they need just because their boss doesn’t approve of said treatment for religious or other reasons.

Companies have no right to dictate their employees’ medical treatment, and especially have no right to interfere in their employees’ reproductive health decisions. Instead, companies should be focusing on providing their customers with a good product. We need a healthcare system where the kind of health coverage you get doesn’t depend on whether you have a job or where you work if you do. It should be the sole responsibility of the public – through progressive taxation – to provide health coverage to all.

Should the right to health care be in the Constitution?

December 17th, 2012

When the Affordable Care Act was being debated within the lofty chambers of the Supreme Court earlier this year, I was unhappy that the right to health care in this country was even being debated at all. It should be a given. What right do nine unelected people in black robes have to decide whether 300 million other people should see a doctor when they get sick? I felt that the traditional doctrine of judicial review was completely inappropriate when it came to health care. But then, I thought about all the great civil rights decisions of the 20th century. Where would we be if the Supreme Court hadn’t stepped in then?

Eventually, the Supreme Court ruled (narrowly) in favor of the Obama administration and the ACA. The 5-4 majority upheld the individual mandate’s financial penalty as a tax permissible under the Constitution. The ruling really only established a right to purchase health insurance – not an inalienable right to health care. So the question is this: should the right to health care be added to the Bill of Rights? Would that have made a difference in the outcome of health reform? Had that right been established in the Constitution long ago, would we be a different country today?

The Universal Declaration of Human Rights, of which the United States is a signatory, establishes health care as a basic human right:

Article 25.

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

The World Health Organization’s constitution states the following:

The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without the distinction of race, religion, political belief, economic or social condition.The constitutions of many countries have some language establishing the right to health care or the duty of the state to provide health services.

A 2004 Cornell University study compared the constitutions of 189 countries and found that about two-thirds have some language addressing health or health care. Many establish the right to health care and/or the duty of the state to provide health services. A sampling from each region:


Art. 196. “Health is the right of all and the duty of the State and shall be guaranteed by social and economic policies aimed at reducing the risk of illness and other maladies and by universal and equal access to all activities and services for its promotion, protection and recovery.”


“The public authorities shall guarantee for everyone, as provided in more detail by an Act, adequate social, health and medical services and promote the health of the population. Moreover, the public authorities shall support families and others responsible for providing for children so that they have the ability to ensure the well-being and personal development of the children.”


“The right to the protection of one’s health is hereby recognized. It is everyone’s duty to participate in the promotion and preservation of individual and community health. The State shall maintain a satisfactory environment for the protection of everyone’s health.”


“The individual has the right to security, education, health care, and social security. The Iraqi State and its governmental units, including the federal government, the regions, governorates, municipalities, and local administrations, within the limits of their resources and with due regard to other vital needs, shall strive to provide prosperity and employment opportunities to the people.”


“All people shall have the right to maintain the minimum standards of wholesome and cultured living. In all spheres of life, the State shall use its endeavors for the promotion and extension of social welfare and security, and of public health.”


“(1) Everyone has the right to health protection. (2) Equal access to health care services, financed from public funds, is assured by public authorities to citizens, irrespective of their material situation. The conditions for and scope of the provision of services are specified by law. (3) Public authorities are obligated to provide special health care to children, pregnant women, handicapped persons and persons of advanced age. (4) Public authorities are obligated to combat epidemic illnesses and prevent the negative health consequences of degradation of the environment. (5) Public authorities shall support the development of physical culture, particularly amongst children and young persons.”

South Africa

“(1) Everyone has the right to have access to—(a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment.”


“The State, in order to improve national health, shall establish extensive services for sanitation and health protection, and a system of public medical service.”

However, just because a country’s constitution establishes a right to health care doesn’t mean it always lives up to that promise. Some of the nations with the right to health care written into their constitutions don’t necessarily have advanced hospitals and/or the healthiest populations. These tend to be authoritarian regimes or Third World countries with few resources. Of the countries that don’t have the right to health care in their constitutions, some are First World nations with healthcare systems that rank among the best in the world. For example, the constitution of number one ranked France is silent on the right to health care. The same goes for Canada, whose system is seen as the preferred model for single payer advocates in the United States. The study’s authors concluded that a nation’s commitment to health care has no relation to whether or not healthcare language is in its constitution.

So is it a nation’s culture and history (coupled with enough resources) that makes the difference? Europe’s devastation after World War II set the stage for that continent’s widespread adoption of social democracy, characterized by a robust social safety net. That included a commitment to universal health care. Social democracy was seen as the alternative to the competing ideologies of fascism and communism. On the other hand, America evolved quite differently. The United States was founded on the frontier idea of individual liberty. Colonizing a vast continent where your nearest neighbor could, quite literally, be miles away from you meant the concept of self-reliance was a virtue. This concept combined with America’s historic embrace of Calvinism – the Protestant work ethic and the Christian idea of predestination (success as an indicator of being favored by God) – which gave rise to modern capitalism. America’s history of racial and class strife has also contributed to weak social solidarity. A more conservative judiciary built up over the last 40 years has favored an interpretation of the Constitution that seeks to limit government’s role in public life rather than expand human rights. Hopefully the United States will evolve into a country with a de facto universal right to health care without having to amend its founding document. But, it may have been far easier to implement if that right had been included long ago.


Don McCanne, MD: Stuart Butler on the 30 million uninsured

August 13th, 2012

The New ACA Score And The Perils Of Letting Cost Estimates Drive Policymaking

by Stuart Butler

Health Affairs Blog, July 24, 2012

If you were expecting the Congressional Budget Office (CBO) recalculation of the Affordable Care Act (ACA) to rival the drama of the Supreme Court decision, you will have been disappointed.  But the new CBO re-estimate underscores the dangers of basing major policy changes on such forecasts.

While the Court caused political shockwaves by declaring the ACA’s “penalty” to be a “tax”, that in itself did not have major implications for the new score.  CBO projects a net reduction in total federal outlays of $84 billion over 10 years (the new total is $1,168 billion) and an increase in the uninsured of about 3 million, when compared with its earlier estimates.  Significant numbers, but not earth-shattering.  The Joint Committee on Taxation provided revenue estimates for the CBO forecast.

But CBO faced enormous challenges in estimating the impact of the ruling, and its seemingly precise estimate clouds the significant guesses it had to make.

The Challenge Facing CBO

Rather than the tax-not-penalty decision, the part of the Court’s ruling with the greatest budgetary implications concerned Medicaid.  It also gave CBO its biggest headache.  The Court struck down the provision requiring states to expand Medicaid coverage to households up to 133 percent of the poverty level.  So CBO had to figure how many states – indeed which states, given different Medicaid coverage pattern today in the states – would decline short-term federal funding for the expansion (what the Wall Street Journal called the “teaser rate”), knowing they would have to pay a portion of the cost in future years.  The governors of several states, including Texas, Florida and South Carolina, have already declared they would refuse the money.

So what could CBO do?  Take such declarations at face value?  Factor in a bit of politics, consult a political crystal ball, and predict what might actually happen in state houses next year? Give a range to show, say, the different effects of all states declining or all agreeing to expand Medicaid?

To compound the scoring challenge, CBO had to project what would happen to newly eligible Medicaid households in states that decline federal money to expand Medicaid.  Some, but not all, would be eligible for subsidies in the new ACA exchanges, depending on household income.  But how many would sign up (adding to subsidy costs, even though they would not have added to federal Medicaid costs)?

According to former CBO Director Douglas Holtz-Eakin, depending on your guess the potential range of budgetary effects would be large.  If the six states currently saying they will not expand Medicaid follow through with that threat, Holz-Eakin estimates the net budget impact would be $22-80 billion between 2014 (when the expansion occurs) and 2021.  But if all states decide the expansion is an offer they must refuse because of the long-term state cost, the impact could be as high $627 billion.

A False Sense Of Certainty

Faced with the uncertainty about state action, CBO declined to give a range (a bad thing).  Instead it avoided second-guessing states (arguably a good thing for people who wear green eyeshades rather than appear on political talk shows) and projected a number based on “the middle of the distribution of possible outcomes.” That’s defensible, in the same sense as a weather forecaster splitting the difference on the chances of thunderstorms next Friday, but it results in a seemingly precise number that is almost certainly wrong and yet gives a false sense of certainty to policymakers.

This case of CBO scoring highlights once again why it is so important for policy to be driven a bit less by budget estimators generating apparently precise numbers.  That leads to policies based on guesses needed for a computer algorithm rather than on judgment and public discourse about the nature and purpose of government.  But alas, Congress insists that CBO come up with one number for its deliberations, not a range or a zone of probability.  And so even though CBO wisely warns that its number “should not be viewed as representing a single definitive interpretation of how the ACA should or will be implemented in light of the Court’s decision,” regrettably it will be.

Posted response by Don McCanne:

The policies inherent in the Affordable Care Act do create uncertainty as to how many will remain uninsured. Nevertheless, the CBO projection of 30 million uninsured will be the number quoted in policy discussions, since it is the best we have, and it does provide a rough estimate of how short ACA falls in the goal of covering everyone.

To provide a perspective of the enormity of this policy failure, let’s assume that we chose a different set of policies that would cover the same total number of individuals, still leaving 30 million uninsured. Let’s say that we want to have 100 percent coverage in each state, beginning with the largest states since they would have the greatest health care burden in terms of the sheer numbers of patients. Let’s continue to cover 100 percent of each state until we run out of funds to pay for coverage for the last 30 million people – the residents of the least populated states.

Under such a policy, everyone would be covered except all of the residents of Alaska, Arkansas, Delaware, District of Columbia, Hawaii, Idaho, Kansas, Maine, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming.

Who could ever support such a ridiculous policy scheme? Yet since we have buried other ridiculous policies into a highly dysfunctional, fragmented, administratively wasteful ACA financing scheme, we are going to accept those policies as the best we can do? It’s okay to have 30 million uninsured as long as we don’t concentrate them in two-fifths of our states?

Stuart Butler implies that we need policies based on “judgment and public discourse about the nature and purpose of government.” If we were all sincere in such a discourse, and laid partisanship aside, we would end up with a decision to enact a single payer national health program that included everyone.


By Don McCanne, MD

Stuart Butler has a valid point that the variables in the Affordable Care Act and its implementation are great enough that we cannot accurately predict the precise numbers of individuals who will remain uninsured. The information that the Congressional Budget Office relied on to come up with 30 million uninsured does give us a very rough estimate of the total, and enough confidence that we can say with certainty that at least tens of millions will remain uninsured.

So what is Stuart Butler’s point? He indicates that instead of using this precise number to establish policy, we should choose policies based on “judgment and public discourse about the nature and purpose of government.” Well, let’s use the less precise estimate of tens of millions uninsured. What then should be the role of government?

It is clear that the private sector has been incapable of insuring everyone, and that government involvement is required if universal coverage and access are to be our goals. It is also clear that the Affordable Care Act is not an adequate response on the part of government since that is what led to this estimate of the large numbers who will remain uninsured.

So what would Butler propose? In 1989, we thought we knew the answer when he coauthored the report from the Heritage Foundation which called for the principle that, “Every resident of the U.S. must, by law, be enrolled in an adequate health care plan to cover major health care costs,” and “The requirement to obtain basic insurance would have to be enforced,” and “If the family did not enroll… a fine might be imposed.” Yes, an individual mandate.

This did prove to be partisan since the concept was used in proposed Republican legislation designed to counter the health care reform proposal of Bill and Hillary Clinton. The Clinton effort fizzled, and the Republican proposals were never enacted. Little did we realize then that a couple decades later the partisan support for the individual mandate would flip from the Republicans to the Democrats.

In a USA TODAY op-ed this year, Butler indicated that his views had changed based on newer policy research, and that today the individual mandate “means the government makes people buy comprehensive benefits for their own good, rather than our original emphasis on protecting society from the heavy medical costs of free riders.” Sort of, you take care of your own needs but don’t turn to me for help when you can’t meet them – the perpetual conflict between individual responsibility and social solidarity.

He wrote, “health research and advances in economic analysis have convinced people like me that an insurance mandate isn’t needed to achieve stable, near-universal coverage. For example, the new field of behavioral economics taught me that default auto-enrollment in employer or nonemployer insurance plans can lead many people to buy coverage without a requirement.”

We know that default auto-enrollment does result in higher rates of participation, but we also know that an entirely voluntary program for purchasing our often unaffordable private health plans would leave far more uninsured than would the policies contained in the Affordable Care Act.

We should have that public discourse that Butler calls for – the one about what we, as a nation, want. Do we want absolutely everyone to be included in our health care system? Or do we want to continue with policies that provide the equivalent of covering everyone in the most populous states, but none of the residents of Alaska, Arkansas, Delaware, District of Columbia, Hawaii, Idaho, Kansas, Maine, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming?

Heritage Foundation: “A National Health System for America” 1/2/89

USA TODAY: “Don’t blame Heritage for ObamaCare mandate” by Stuart Butler

Re-posted with permission from

Don McCanne, MD: So is ACA all there is?

July 17th, 2012

Senator Bernie Sanders
June 28, 2012

In my view, while the Affordable Care Act is an important step in the right direction and I am glad that the Supreme Court upheld it, we ultimately need to do better.  If we are serious about providing high-quality, affordable healthcare as a right, not a privilege, the real solution to America’s health care crisis is a Medicare-for-all, single-payer system. Until then, we will remain the only major nation that does not provide health care for every man, woman and child as a right of citizenship.


By Don McCanne, MD

The responses to the Supreme Court decision to uphold the basics of the Affordable Care Act were quite predictable. Through all of the cacophony, two predominant views settle out: 1) After a period of celebration, the proponents want to move forward with implementation, and 2) The opponents want to change control of the government so that they can repeal the Act (though maybe proceed with reintroducing limited elements of it).

Yet there is another view simmering under the surface. There is a grave concern that too many people will be left out of the system, that those who have insurance will find that the subsidies are inadequate to provide financial security in the face of medical need, and that the Medicaid program will remain chronically underfunded, resulting in health care access limitations. It will become obvious that these are not acceptable outcomes.

People who understand the single payer model realize that it is the only feasible option, but just as it was buried during the reform process, it will now be buried under the fervor in implementing the Affordable Care Act. We will continue to speak out, but the supporters of the Act will refuse to listen because they are too busy with implementation.

By about 2015 or 2016, those dedicated ACA supporters will see that the numbers really aren’t working, in spite of their efforts – still too many uninsured, costs too high, personal financial hardship rampant, and inability to adequately fund Medicaid because of the stigma of being a welfare program. By then, the celebration of the Supreme Court victory will have long worn off, and our friends will understand that decisions will have to be made as to how to alter course.

Those currently in charge are tinkering incrementalists. They will be looking for solutions such as enhancing consumer empowerment (i.e., keeping insurance premiums down by shifting costs to patients), structural reform of delivery systems (after the failure of accountable care organizations), capping malpractice awards (wrong solution to tort problem), and opening insurance markets across state lines to make insurance affordable (even if health care isn’t). After all, since the ACA provisions aren’t working, it’s time to try the conservatives’ favorite approaches, they’ll reason.

Come on. The solution is staring them in the face – single payer! Yet the resistance will continue. We’ll have ever more of “let’s try this first.”

It will take us until about 2015-2016 to have an impact, only because we’ll have to wade though the muck of ACA reform before our well-meaning friends see that there is only more muck ahead. At that time they will be looking for better solutions, but we cannot wait until then to recharge our campaign. The need is now! We have to establish single payer as a meme. It has to be an automated mentation process.

This means that we have to gear up immediately with an unrelenting campaign to get our friends to understand that single payer is not only the logical solution, but it is the only feasible alternative since it is the only approach that will work. It is long past time for us to replace the concept of political feasibility with the concept of social feasibility.

Re-posted with permission from