Judicial Restraint

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The U.S. Supreme Court will begin hearing arguments Monday on the constitutionality of the Patient Protection and Affordable Care Act, heralded as one of its most important cases in decades.

If the court issues a wide sweeping ruling striking down PPACA completely, it would then be seen by many as an activist political body inserting itself into a controversial issue during a presidential election year. The reputation of the court would most likely suffer for years, and it could then become even further politicized.

If it decides in favor of PPACA, it would strengthen and further modernize the federal government’s role in regulating commerce—one of the main issues will be the interpretation of the constitution’s commerce clause—but would be widely viewed, especially in the South, and in places like Oklahoma, as a blow against state rights. Twenty-six states have sued the federal government over the law.

The core issue is the individual mandate, which requires that most everyone purchase health insurance or pay a penalty. The mandate has yet to go into effect, making the court’s decision even more philosophical, political and polemic. The commerce clause holds that the federal government can regulate . . . “Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Does the commerce clause, then, support the constitutionality of the PPACA?

The generality and fluidity of the commerce clause and other parts of the constitution granting states rights makes the question an interpretative and plural argument. The court could also issue a limited decision delaying full consideration until after the mandate goes into effect or strike down the individual mandate but leave other aspects of the law intact.

Of course, there’s also the issue of how the decision would affect the presidential election, which is probably a win for President Barack Obama in either case. If PPACA is struck down completely, the Republicans win a tactical battle on a huge scale, but they also lose one of their main rhetorical complaints against the Obama administration, and this might inhibit GOP political motivation in November.

If PPACA is upheld, Obama will simply argue that the highest court in the land has legally sanctioned a health program similar to the one supported by his probable, Republican opponent, Mitt Romney. Romney endorsed such a program as governor of Massachusetts, and the program has been proven successful.

Many legal experts predict the court will either uphold the law or issue a limited ruling if only for the sake of the court’s reputation. If it strikes down the law, it would be widely seen as an intrusive, politically explosive gesture proclaiming a superiority of the judicial over the legislative and executive branches of government.

Judicial restraint, however, might not hold as much significance in a country that remains this deeply divided politically.

All of this matters little, of course, to the actual pragmatics of PPACA, which has proven popular for many people because, among other reasons, it allows children up to 26 to remain on their parents’ health insurance policies and allows people to obtain insurance with preexisting conditions. It also surely matters little to the uninsured person dying of cancer or the parents of an uninsured sick child.

Oklahoma is one of the states that has sued the federal government over the law and has rejected federal money to help establish health insurance exchanges that would make it easier for some people to get insured.

Obviously, the current Oklahoma political power structure overwhelmingly opposes the law and, one might assume, will hope the court rules it invalid. This is historically wrong in the legacy of American legal issues, but, more importantly, it’s a step backwards in a state that has some of the worst medical outcomes in the country, faces rising insurance costs and has a decided lack of insurance choices.

Here are facts, provided by the U.S. Department of Health and Human Services, I’ve previously published:

The overall quality of care in Oklahoma is rated as “Weak.”

16 percent of children in Oklahoma are obese.

28 percent of women over the age of 50 in Oklahoma have not received a mammogram in the past two years.

45 percent of men over the age of 50 in Oklahoma have never had a colorectal cancer screening.

76 percent of adults over the age of 65 in Oklahoma have received a flu vaccine in the past year.

Roughly 1.9 million people in Oklahoma get health insurance on the job, where family premiums average $12,256, about the annual earning of a full-time minimum wage job.

Since 2000 alone, average family premiums have increased by 77 percent in Oklahoma.

Household budgets are strained by high costs: 29 percent of middle-income Oklahoma families spend more than 10 percent of their income on health care.

High costs block access to care: 17 percent of people in Oklahoma report not visiting a doctor due to high costs.

Oklahoma businesses and families shoulder a hidden health tax of roughly $1,900 per year on premiums as a direct result of subsidizing the costs of the uninsured.

19 percent of people in Oklahoma are uninsured, and 70 percent of them are in families with at least one full-time worker.

The percent of Oklahomans with employer coverage is declining: 54 percent were covered in 2007.

While small businesses make up 78 percent of Oklahoma businesses, only 39 percent of them offered health coverage benefits in 2006.

Choice of health insurance is limited in Oklahoma. BCBS OK alone constitutes 45 percent of the health insurance market share in Oklahoma, with the top two insurance providers accounting for 71 percent.

Choice is even more limited for people with pre-existing conditions. In Oklahoma, premiums can vary based on demographic factors and health status, and coverage can exclude pre-existing conditions or even be denied completely.

Perhaps, the most telling fact is Oklahoma’s infant mortality rate, which is one of the highest in the country. That’s a statistic that tells the state’s story as much as the number of oil pumpers that dot the landscape here. Given the high infant mortality rate and other poor health outcomes, the complaints here against the law seem hollow and mean.

I supported PPACA even though it lacked a public option, which remains the key component to solve medical access and exorbitant health care costs. I still believe the new law is a step forward and will be redeemed by history, though the court could, but absolutely should not, make that a problematic premise.

State Republicans Fret Over Health Insurance Companies

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Two recent public announcements here illustrate the state GOP’s health-care philosophy, which is to protect the profits of insurance companies at whatever cost to patients.

First, it was announced that Republican Gov. Mary Fallin, at the request of Republican Oklahoma Insurance Commissioner John Doak, signed a new rule that eliminates birth as a qualifying event for health insurance, which means some parents could conceivably be faced with huge hospital costs if their newborn baby has severe medical problems. The reason given for the rule is that it would encourage more insurance companies to offer policies in Oklahoma. This, so goes the doublespeak, could actually mean more children overall would be covered. Thus, some children won’t be covered so other children will be covered only to ensure insurance companies’ profits.

Second, the federal government announced on Wednesday it has rejected Oklahoma’s request to exempt the state from a federal rule, the Medical Loss Ratio, under the Affordable Care Act. It requires some insurance companies to apply 80 cents of every dollar they earn on actual health care or pay rebates to customers. According to media reports, Doak wanted the rule to be implemented gradually through the next few years to prevent what he sees as a disruption of the market, or, in other words, to make it a financially easier for insurance companies. The Feds said no.

Here’s Fallin’s telling take on the recent issue, according to the Tulsa World:

The (Medical Loss Ratio) requirements in the law are particularly harmful to private insurers and may ultimately raise insurance costs for consumers, reduce access to care and destroy private-sector jobs.

I am frustrated that President Obama continues to reject efforts by states to lessen the impact of harmful and burdensome federal regulations, and I remain hopeful that the president's health-care plan can either be repealed or struck down on the federal level.

Note the “harmful to private insurers” remark comes first before she mentions “consumers.” What about patients? What about Oklahomans who pay exorbitant amounts of money for lousy insurance coverage so companies can earn more profits? Does Fallin care about them? Does she really believe her party’s free-market-at-any-cost philosophy about medical care will result in a better system? It hasn’t so far. The U.S. ranks extremely low in medical outcomes and highest in costs when compared to other industrialized countries. Oklahoma, in particular, has poor medical outcomes.

In a direct challenge, the U.S. Department of Health and Human Services argued the new rule lowers health insurance costs for people and that has already been proven true in states where companies have adopted the 80-20 rule.

There’s not much Fallin and the GOP can do about the Affordable Care Act but hope the U.S. Supreme Court rules it unconstitutional or that the country elects a Republican president in November and also elects GOP majorities in both the House and Senate. Meanwhile, Oklahoma officials should abide by the new rules. The old rules didn’t work. Give the new rules a chance. Let’s see what happens.

Fallin’s Choice

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Whatever people might think about the specific decision by state officials to remove birth as a qualifying event for health insurance, it should serve as a reminder that our medical system remains relentlessly ruthless.

Gov. Mary Fallin, according to a media report, recently signed the rule as requested by the office of State Insurance Commissioner John Doak. Fallin’s office said the reason was to entice health insurance companies who offer policies for children to come back to do business in Oklahoma. The companies stopped offering child policies in Oklahoma because of the “president’s health plan,” according to Fallin’s office.

Fallin spokesperson Alex Wentz was quoted this way about the issue: “We think it will get more kids covered. It's not perfect, but honestly, we view it as cleaning up a mess made by the Obama administration."

So in other words some of the youngest and sickest children will go uncovered, but other, presumably healthier children will get insurance coverage. It resembles the plot of the movie Sophie’s Choice in its calculation: choose one child over another child.

Whether Fallin and Doak are making a prudent decision or not misses the larger point that the profits of health insurance companies continue to dictate major aspects of our medical system. Health insurance companies, of course, want to insure the healthiest people in our society and not insure unhealthy people, such as premature babies, who require extensive medical attention. It’s a calculated business model.

It also shows how broken our health care system remains even after the Affordable Care Act, which strives to increase insurance coverage in the nation, thus eventually lowering costs for everyone. The problem, of course, is that ACA—primarily because of Republican opposition—didn’t include a public option for coverage, which would have eliminated the need for Fallin and Doak to make this stark decision in the first place.

The Oklahoma Hospital Association and the Oklahoma Institute for Child Advocacy oppose the rule change, according to the media report, but these issues will continue to perplex our culture as long as insurance companies are allowed to dictate winners and losers in our health care system. It’s a terrible and costly system. When we cater to it, our costs go up and the level of care does down.

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