Despite all the betting that Associate Justice Kennedy held the ACA’s fate in his
hands, it was Chief Justice John Roberts who found a way to thread a judicial needle
and uphold the law’s major tenet, the individual mandate. Chief Justice Roberts did so
without bending his judicial philosophy to political pressure. In short, he found a way
to do the right thing.
The right thing was not the ruling one way or the other. The right thing was
consenting to the people’s elected representatives, allowing them to alter the manner
in which over one-sixth of the country’s commerce is paid for—and doing so without
invoking the Commerce Clause of the Constitution, or any of the other enumerated
powers, as to render the ACA unconstitutional.
Roberts stated, “it is not our job to protect the people from the consequences
of their political choice.”
He agreed with his conservative brethren that the Constitution does not give
Congress the power to regulate economic inactivity (i.e., not buying something—be
it insurance or broccoli). However, by calling the penalty (also known as the shared
responsibility payment) a tax on those without health insurance, and confirming what
we all know—that the power to tax lies with the Congress—he allowed the individual
mandate to stand.
The Chief Justice found this way because, as was written before him, “every
reasonable construction must be resorted to, in order to save a statute from
unconstitutionality” (Hooper v. California).
I am still pushing my way through the almost 200 pages of the decision, but
the Roberts section is brilliantly written and logically presented. The references are
extensive and the language is clear as well as erudite. I urge everyone to read it.
This is a great day for America, because one man, John Roberts, did exactly
what he said he would do at his confirmation hearing. He acted as the umpire, calling
balls and strikes. He did not insert himself into the political line-up. If this were
December 28, instead of June 28, I would say he’s Time’s Man of the Year and maybe
Sports Illustrated’s as well, for staying out of the game.
A note of caution must also be injected into the elation of those who supported
the ACA and were certain of its constitutionality.
The Court also ruled that threatening a state with the loss of all current as well
as future Medicaid federal funds if the state does not implement the full expansion of
Medicaid coverage as described in the ACA was unconstitutional. This leaves the door
open for states to walk away from the expansion, but maintain their current federal
allotment and limited level of support for those who currently receive Medicaid (pregnant
women, children, needy families, the blind, the elderly and the disabled, but not childless
adults living in poverty).
For those of us in Texas, with 6 million uninsured, many of whom do not qualify
for Medicaid now, but would under the expansion that is part of the ACA, this is most
concerning.
As an oncologist, why do I say that?
I just have trouble after 35 years in the academic oncology business seeing people
die unnecessarily simply because they have no access to mammography, colonoscopy,
Pap smears and smoking cessation programs.
Obviously we don’t know everything we need to know to cure cancer—or have even
identified the best route to pursue this ultimate goal. But we know a lot about what can
prevent it or detect cancer early.
Everyone who needs these prevention, screening and educational strategies—
many of which do not require a physician to implement—should have access to them.
This could really lessen the incidence of cancer and surely lower the cancer death rate,
and could do so far faster than sequencing the genomes of metastatic malignant tumors.
The Medicaid expansion would save lives, but it can no longer be presumed that this
expansion will be implemented everywhere.
But for today, let’s enjoy another demonstration of the brilliance of the political
system established by the Framers. Sometimes, the magic works! Thanks Mr. Chief Justice
for being a man of your word and having the courage, as well as the intelligence, to lead
us forward.
Leonard Zwelling is a professor of medicine and pharmacology at MD Anderson Cancer
Center and is a former Robert Wood Johnson Foundation Health Policy fellow who served
on the staff of the US Senate Health, Education, Labor and Pensions Committee during
the initial phases of the health care reform debate.
