The Supremes and ACA: Is opposing coverage for the poor really just mean?

In the context of the historic and momentous Supreme Court decision legalizing gay marriage across the US, and its affirmation of the Fair Housing Act, the third of the “trifecta” of progressive decisions announced this week, the ruling against those who argued that the ACA forbid federal financial support of federally-sponsored rather than state-sponsored insurance exchanges, seems rather pedestrian. After all, it just decided that the intent of the ACA was to achieve what its intent was – greater insurance coverage for the American people – and this would not be invalidated by 4 poorly-chosen words in a 1,000 page bill. What is more worthy of note is that there were three Supreme Court Justices who voted against it, when it was clearly not a real issue of law but an end-run to get it invalidated on a technicality. The low point of the dissent was Justice Scalia’s juvenile characterization of the majority decision as “jiggery-pokery”, an archaic expression most recently used in the public domain in a Harry Potter movie. Of course, Scalia could make a fair Harry Potter villain; not the potent evil of Lord Voldemort, but more of a scowling, snarling Severus Snape.

But the decision has real meaning. It means that millions of Americans in the 34 states that elected to not establish state-based exchanges and thus depend upon federal ones will not lose their health insurance. That is a good thing for those people, and it is a good thing for America. It does nothing for those people who were excluded by the SCOTUS decision 3 years ago (also written by Chief Justice Roberts) that, while validating ACA, precluded requiring states to expand Medicaid. This left millions more in the states that have not done so (like mine, Kansas) without insurance.  It certainly does nothing for the millions of those without legal documentation who live here, or the many others who fall between the cracks of the law. It still leaves us without the moral, medical, social, and economic advantages that come from a truly universal health system such as any of those adopted by every other wealthy nation, which achieve better health for less cost (see graphic). But it does make us seem slightly less cruel and benighted.

Not that this will end the discussion. A small article in the New York Times of June 27, 2015 notes that “Legal challenges remain for health law”.  These include a lawsuit by House Republicans led by Speaker John Boehner maintaining ACA is invalid because it spends money not appropriated by Congress, and a series of suits by religious organizations about the law’s requirement that they cover contraception. Indeed, the whole opposition to the law has becoming akin to a religion itself; according to its opponents (obviously also including all the Republican candidates for President) it is bad as a matter of faith, even though it does so much good. Yes, it does good in costly ways, ensuring that insurance companies make their profit; it does it in arcane ways; it does it in ways which in fact cost some people more than they might have otherwise paid. But it provides several million people the opportunity to not be the Donna Atkins or Tommy Davis of the future (see Dead Man Walking: People still die from lack of health insurance, November 17, 2013).

In response to a blog in which I posted a map that shows that the vast majority of those remaining uninsured are in the states of the former Confederacy and suggested that while Southern people might not be meaner than others, the impact of their policies was (Medicaid expansion and uncovered lives: are people meaner in the South?, February 8, 2015), Bobby Cohen wrote in a comment “If meanness doesn't explain the rejection of Medicaid expansion by Southern states, what does?” Well, for many people, I suppose, it is ignorance, of the sort demonstrated by “Keep the government’s hands off my Medicare!” or what I have called the “Craig T. Nelson fallacy” (“I've been on food stamps and welfare. Anybody help me out? No. No.”!!). Or the beliefs of some of the people in southeast Kansas interviewed for Kai Wright’s excellent article “Life and Death in Brownback’s Kansas”, published in the June 22/29 issue of The Nation where it seems that “Everyone is convinced that someone else is getting a better deal, that somewhere a horde of Kansans are gaming the system and preventing the truly needy from getting help.” In a true “What’s the Matter with Kansas”[1] illustration, even the doctor at the community health clinic who is fighting hard to get care for her impoverished patients who would have otherwise had Medicaid is conflicted; Brownback, after all, is a strong anti-abortion advocate, as is she.

All of these may explain some of the position of the leaders of this movement, but a better explanation can be found in the answer to one of the questions in “Steven Pinker’s Mind Games”, a psychology quiz on the NY Times website: “the best liar is the one who believes his own lies”. But it is hard to look at, not to mention listen to or read, the hard-core right-wing justices on the Supreme Court (who, unlike the GOP’s many presidential candidates are not even running for office) without thinking that they are, essentially, mean. They are not only against helping people when it will cost them, not altruists (another Pinker question), but even when it will save them money (again, see graphic).

I do not claim to be a legal scholar of the status of any of the Supreme Court Justices, or indeed the President. I gained some understanding from “The elusive right to health care under US law”, by Prah Ruger, Ruger, and Annas in the June 25, 2015 issue of the New England Journal of Medicine, published before any of these SCOTUS decisions were announced.[2] It’s a good and readable article which helps medical people like me understand some of the logic of court decisions. One line I found of particular interest was “American constitutionalism has championed negative liberties more than positive rights.” The idea is that the Constitution says government should not be allowed to take away our individual liberties (e.g., our guns) but not so much that we have a right to things (e.g., health care).

And yet, as pointed out by Gail Collins in “Supremes hit a high note”, this Court has “…destroyed the nation’s campaign finance laws, limited workers’ rights to challenge wage discrimination and women’s rights to control their bodies. And basically disemboweled a 50-year-old Voting Rights Act that Congress had renewed by increasingly large margins on four different occasions.” These decisions, almost all of which came out differently from those of the last 2 days only by the “swing vote” of Justice Kennedy (Chief Justice Roberts did join the majority in the decision on ACA), do not always follow this logic. It is quite an extension of the idea of liberty to say that corporations are people (the founders certainly didn’t think so) or money is speech. It is quite opposite protecting individual liberty to have laws limiting the ability of women to obtain contraception or abortion (although they can sure have guns!). Whether put forward by ignorant bigots, self-serving politicians, or sanctimonious Supreme Court Justices, the concept is most consistently “people should be allowed to do whatever they want, as long as they want the same things I do, but not what I disapprove of”. Sometimes, particularly when describing the actions of the powerful, this is described as political. But I think Dr. Cohen is right; it is essentially mean.

A phrase we commonly hear is that “mean people suck”. They do, but more important, when they have positions of power, they can do a lot of damage to others.

  

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[1] Thomas Frank. “What’s the matter with Kansas?”. Henry Holt. 2004 [interestingly, published in the UK and Australia under the title “What’s the matter with America?”!] ISBN 0-8050-7339-6.

[2] Jennifer Prah Ruger, Ph.D., M.S.L., Theodore W. Ruger, J.D., and George J. Annas, J.D., M.P.H., The Elusive Right to Health Care under U.S. Law, N Engl J Med 2015; 372:2558-2563June 25, 2015DOI: 10.1056/NEJMhle1412262

Cost of health care increases poverty around the world, and in the US

The title of the press release from the World Bank, “New WHO and World Bank Group Report Shows that 400 Million Do Not Have Access to Essential Health Services and 6% of Population Tipped into or Pushed Further into Extreme Poverty because of Health Spending”, about says it all. Or does it? Certainly, it summarizes the core information provided by that study, and that is pretty bad. Even in a world whose population this year reached 7 billion that is a big number (nearly 6%), and remember that it is talking about “…essential health services—including family planning, antenatal care, skilled birth attendance, child immunization, antiretroviral therapy, tuberculosis treatment, and access to clean water and sanitation.” This is not coronary artery bypass surgery (as essential as that seems to those of us who need it), or knee replacement (which may make it possible for us to walk with less pain), or even tight control of our diabetes (possibly less prevalent in populations that are chronically malnourished), still less entirely elective care.

We are talking about access to clean water and sanitation. We are talking about the fact that the greatest cause of death in the world is water and that most of those deaths are in children. We are talking about the absence of the most fundamental aspects of access to health, not to mention health care and medical care.  While not a focus of the World Bank report, in many places war makes it worse, adding to the lack of basic services an extraordinary need for major medical care. In his New York Times Op-Ed piece of June 21, 2015, Nicholas Kristof describes the chilling war being waged by the government of Sudan against its own people in the Nuba Mountains, with daily bombings of civilians. He describes the deaths and maiming of children, and the inadequacy of even the most committed physicians to help in the atrocious conditions that exist there. An 8-year old boy, who had just lost several siblings to the bombing, “showed extraordinary courage,” the lone doctor at the hospital remembers, “but he would scream every day from pain as his dressings were changed.” While he “persevered for weeks”, “flies were laying eggs in his wounds, and soon the burns were crawling with maggots. Dr. Catena says that he would cut out the maggots, and the next day more would return.”

Yes, most of these 400 million are not in the US, are in developing (a euphemism, perhaps) countries. But in the US there is great need also; every day in our cities we see people who have not had access to TB or HIV treatment, who have delayed care because they are uninsured and cannot afford the cost, until they are so sick that their treatment costs far more than it otherwise would have. We see women who do not come for antenatal care until very late in their pregnancies if at all, missing the chance to discover and treat relatively minor problems until they become major. Fortunately, it is uncommon in the US for them to not receive “skilled birth attendance” since the law requires hospitals to provide care when women come in in labor, but they often appear with no records of whatever prenatal care they may have had. An excellent post on the blog of Medical Care Section of the American Public Health Association (unfortunately, access is limited to APHA members), “For Medicaid enrollees, a choice: PCP or emergency department?”, by Sandhya V. Shimoga, describes the problems that Medicaid patients, particularly those newly covered by Medicaid expansion in those states that have done so, in finding primary care providers; they continue to have to use the ED instead, often (again) with conditions far worse than they would have otherwise had. This, of course, does not count the largely insured people in the US who elect not to immunize their own children, secure in the knowledge that most other people are and that they will have access to care if anything does go wrong. Which it often, by the way, does.

And then there are states like mine, Kansas, that have chosen not to expand Medicaid, so that people similar to those Shimoga describes in Oregon and California do not even have a choice. The people of this state, once proud of its education and health care, have seen their rate of uninsurance increase relative to the states which have expanded Medicaid (Kansas only state to increase number of uninsured: A how NOT to do it strategy, August 9, 2014). The “solution” backed by the Republican Party and state governors such as Kansas’ Governor Brownback, is to further decrease the number of insured people by suing on a wording issue in the Affordable Care Act (ACA, “Obamacare”) that might invalidate the federally-run insurance exchanges which have allowed low-income-but-not-desperately-poor people in states like Kansas to gain insurance coverage.

This is a bold strategy, likely to work as well as Governor Brownback’s experiment in reducing taxes on the wealthy and businesses in 2012, which left the state with an $800 million budget deficit this year (on a budget of only about $8 billion). Half was replaced with one-time funds (eg, raiding the state highway fund) and the other half, after a marathon legislative session that ended a month late, with the largest tax increase in state history. However, these were all regressive taxes, mainly a sales tax increase, that hurts the poor and middle class; the 2012 cuts stayed in place for the wealthy, so I guess in that sense it did work. Business pays less tax, and if you own your business (say, self-employed lawyers or doctors) you pay no state income tax although your employees do. Kansas spends less now than neighboring Nebraska, which has 2/3 as many people. Now if we can only get rid of those federally-sponsored exchange so even more people will be uninsured…

The World Bank report calls for universal health coverage. “The world's most disadvantaged people are missing out on even the most basic services," says one official, who adds that a “... commitment to equity is at the heart of universal health coverage.” The report said that 17% of people were pushed into poverty (<$2/day) and 6% into “extreme poverty” (<$1.25/day) by the cost of emergency health care. Few Americans make anywhere near that little, but the cost of living, and of health care, is much higher and the same trend exists here; medical expenses are the largest cause of personal bankruptcy (see Fox Business’ 2014 report).

“As more countries make commitments to universal health coverage, one of the major challenges they face is how to track progress,” says another World Bank official, commenting on the study. Of course, if a country, such as the US, does NOT make a commitment to universal health coverage, this is not a problem.

Except, of course, for the people without health care.