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Justice Ginsburg, the Healthcare Market, and Human Vulnerability

Today’s Supreme Court decision on the Affordable Care Act reaches 193 pages in total. The intricacies of the decision will be parsed out over the coming months, as it has caught many by surprise. At the heart of the debate over the last two years is the Commerce Clause and the individual mandate. Chief Justice Roberts ultimately decided he could not uphold the mandate under the Commerce Clause but that it was constitutional via the taxation powers of Congress. Thus, Roberts, Breyer, Kagan, Sotomayor and Ginsburg made up the majority which maintained the individual mandate; however, Justice Ginsburg wrote an opinion arguing in favor of the mandate under the Commerce clause (representing the four liberal justices). In her vibrant dissent on the commerce clause, Justice Ginsburg provides a clear and cogent explanation of why healthcare, in its delivery and payment, is not a market just like any other.

First, I highly recommend reading Justice Ginsburg’s opinion in its entirety.  In particular, her dismantling of the arguments that upholding ACA’s individual mandate via the Commerce clause would pave the way to mandating people buy broccoli is rooted in the concrete human reality of healthcare in society (p84ff). She states,

The health-care market’s size is not its only distinctive feature. Unlike the market for almost any other product or service, the market for medical care is one in which all individuals inevitably participate. Virtually every person residing in the United States, sooner or later, will visit a doctor or other health-care professional. (p68)

It is easy to think of someone who never participates in the auto-market – in terms of cars or insurance.  Living in and around New York, I know many people who will have no need to participate in the auto-market. The same cannot be said of healthcare. Try and think of a person who will never participate in the “healthcare market” in any way. It would be virtually impossible to conceive of someone (especially someone who survives into adulthood) who never gets sick, seeks any medical attention of any kind; and even harder to find an example of a family in which not one person ever experienced illness or was in an accident and sought medical attention.   You cannot opt out of the human condition.

Part of being human, is the reality that we get sick and that despite your best efforts, you cannot guarantee health.  Even if I do everything possible to maintain good health, receive preventative care, exercise and so on, that will not guarantee that I do not fall victim to a disease like ALS or be injured in an accident. (These issues, as Justice Ginsburg argues, should be viewed over an entire lifetime not in isolated segments.)  And as a society, we have determined that when you do get sick – a hospital cannot turn you away based on inability to pay.  If my child falls out of a tree or suffers from appendicitis, the emergency room cannot refuse treatment because of lack of insurance or money.   As Justice Ginsburg explains,

Unlike markets for most products, however, the inability to pay for care does not mean that an uninsured individual will receive no care. Federal and state law, as well as professional obligations and embedded social norms, require hospitals and physicians to provide care when it is most needed, regardless of the patient’s ability to pay. (p70)

She recognizes that it is not within our capacity to make a firm judgment about participating or not in the “healthcare market.”  We all participate in it – thus, the ACA is not compelling individuals to engage in commerce but recognition that we all do in fact engage in this market and the status quo is deficient. There is a significant cost to the status quo where millions are uninsured, where emergency rooms function as primary care and where many families are perpetually one illness or accident away from financial ruin. This is about the common good and upholding the dignity of the human person.

Justice Ginsburg highlights that we cannot reasonably deal with the national problem of healthcare without taking this into account.  While Congress could have made the decision to create nationalized healthcare, instead they decided to preserve the combined government / private insurance system that currently exists. In doing so,

Equally evident, Congress has no way of separating those uninsured individuals who will need emergency medical care today (surely their consumption of medical care is sufficiently imminent) from those who will not need medical services for years to come. No one knows when an emergency will occur, yet emergencies involving the uninsured arise daily. To capture individuals who unexpectedly will obtain medical care in the very near future, then, Congress needed to include individuals who will not go to a doctor anytime soon. (84)

As a Catholic moral theologian, I greatly appreciate Justice Ginsburg’s opinion for its grasp of the human condition and of society’s responsibilities.  And, while there will be a multitude of Catholic theologians weighing in on how to do that, the moral responsibility to provide care to the sick should not be up for debate.  This simple fact is reiterated by the United States Conference of Catholic Bishops in their two extended reflections on the healthcare system – in 1981, “Health and Healthcare” and again in 1993, “A Framework for Comprehensive healthcare reform.” In both the moral requirement to provide care to all based on need, regardless of ability to pay (and regardless of citizenship status) is reiterated.

So what does that mean for Christians? In my opinion, Susan Brooks Thistlewaite summarizes this quite well in her Washington Post op-ed “Reason rules for Court, but Christians need to continue to advocate for the poorest”, stating:

Jesus taught his followers to have compassion for the sick, to be helpful including paying for health care for those who could not afford it.

The “Good Samaritan,” in a well-known story told by Jesus (Luke 10:25-37), is the person who stops and cares for an injured man left by the side of the road. In this teaching, Jesus tells how the privileged of his society had callously walked by the injured man, ignoring the man’s urgent need for care. It is the “Samaritan,” someone who would have been a despised outsider in Jesus’s time, who actually stops and cares for the man, paying for his care.

It is not enough for me as a Christian, and a person of faith, to do this as an individual. It is my responsibility to call my society to be decent to the sick, and pay for their health care. It is a matter of moral accountability to my fellow citizens.

Thistlewaite is making a poignant argument that Christians need to take up the cause of Medicaid expansion in our states – and I wholeheartedly agree. Justice Ginsburg gives us a clear, cogent and persuasive explanation for the reality of the national healthcare problem and how/why it is categorically different from other markets. In doing so she offers a realistic appraisal of the human condition in society – in making her case for ACA’s legitimacy via the Commerce clause.  This opinion provides important arguments that apply not only to the Commerce clause but also for the other aspect of the decision – regarding Medicaid expansion which is the focus of Thistlewaite’s poignant op-ed.

Meghan J. Clark is Assistant Professor of Moral Theology at St John’s University (NY) and a member of www.catolicmoraltheology.com

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