Mariner Leads Health Law Professors in Filing Supreme Court Brief on Health Care Reform

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Published on Wednesday, 22 February 2012 12:52

More than 100 health law professors, led by BUSPH Professor Wendy Mariner and Professor Mark Hall of Wake Forest University, submitted an amicus curiae to the Supreme Court in the case concerning constitutionality of the 2010 federal health care reform law.

The Court will review an appeals' court decision that struck down a mandate in the Patient Protection and Affordable Care Act requiring that people obtain health insurance coverage. The United States Court of Appeals for the 11th Circuit said the mandate overstepped congressional power to regulate commerce. The government has appealed. The case -- Department of Health and Human Services v. Florida -- will be argued before the Justices on March 27.

The health law professors' brief presents evidence that nearly everyone in the country uses health care and is inevitably engaged in that market, whether or not they have insurance. It supports the Obama administration's argument that the government can regulate the market for health care.

Wendy Mariner"Health insurance – public and private -- is the predominant method of paying for health care," said Mariner, professor of health law, bioethics & human rights at BUSPH and a law professor at the BU School of Law. "Unlike other kinds of insurance, which protect against future damage to assets acquired with separate funds, health insurance is the direct source of payment for the original purchase of services."

The new law "stabilizes healthcare financing by making health insurance virtually universal and affordable," she said.

Mariner will discuss the brief when she delivers the inaugural Faculty Council Distinguished Service Lecture on Tuesday, Feb. 28. The talk is the first of what will be annual lectures sponsored by the Faculty Council to honor members of the BU community who, through their scholarship and civic engagement, challenge the perception that higher education is out of touch with American life. The event, open to the public, will be held from 5-7 p.m. in the Trustee Ballroom at 1 Silber Way.

The amicus brief argues that everyone in America will "use a significant amount of health care prospectively, whether or not there is a mechanism in place to finance the costs of that care." Some will not be able to afford the care, meaning those costs will be borne by other participants in the health care market. Mandating that individuals maintain or obtain minimum coverage -- whether through public or private sources -- is a means of guaranteeing access and reducing costs, the professors write.

"The mandate thus helps to correct distortions in the health care market in which a significant number of uninsured Americans have consumed significant quantities of health care for which they have not been able pay," the brief says.

Mariner and Hall are joined by Professor Charles Fried of Harvard Law School, as Counsel of Record, and Professor Abbe Gluck of Columbia Law School and Gregory G. Rapawy, of the law firm Kellogg, Huber, Hansen, Todd, Evans & Figel, as co-counsel. BUSPH health law Professors George Annas and Leonard Glantz provided critiques and input for the brief.

Mariner discussed the legal wrangling and her participation in the case:

Q: How did you get involved in writing the amicus brief?

A: Mark Hall and I discussed submitting a brief after I made a presentation on the subject at the fall 2010APHA annual meeting. We were concerned that the district courts appeared to be basing decisions on an incomplete understanding of the complex structure of health care and health insurance. We expected that one or more cases would reach the U.S. Supreme Court and wanted the Justices to have a clear picture of the health care system. At the June 1011 Health Law Professors Conference, we asked those present whether they thought an amicus brief on their behalf would be a good idea. The response was overwhelmingly positive. Our goals were to avoid doctrinal arguments, which would be made by many others, and to demonstrate that, regardless of ideological leaning, faculty specializing in health law agreed on basic facts about the health care system and health insurance.

Q: You talk in the brief about the fact that people are treated for illness in the US regardless of whether they can pay. This is something you refer to as the professional "rescue ethic." Can you explain how this plays into the health care market?

A: The very human response to a person who is severely injured or ill is to help. Doctors and hospitals won't let a person die simply because she cannot pay for treatment. This is not true for ordinary consumer goods and services. A business won't give a person a new car for free just because he needs one. We often behave as though health care is a social good that should be available to anyone in need, rather than a consumer good that need not be provided without payment. This means that at least emergency care will be provided to people in need, whether or not they can pay for it. However, this care still costs money, so the country has no choice but to figure out how to pay for the care that inevitably will be provided.

Q: You say health care is fundamentally different than other parts of the economy -- how so?

A: Health care is a necessity, something everyone needs and uses. Less than 1 percent of adults have never visited a doctor or other health care professional. However, health care is unlike other necessities—food, water, shelter and clothing—because, apart from routine care, a person cannot predict his need for health care, and that care is very expensive. The use of health care follows a rough 80/20 rule: in any year, about 80 percent of health care expenditures are spent to treat 20 percent of the population. But, we do not know in advance who will be in that 20 percent. In contrast, the need for food, water, shelter and clothing is predictable and consistent for everyone, and generally affordable. Paying for health care requires saving and shifting funds across time periods, which is why health insurance is used to finance most health care.

Q: The brief argues that health insurance is different from other kinds of insurance. What's the difference?

A: Health insurance really functions as a separate species of insurance, because it pays for the original purchase of personal services. Most conventional insurance is acquired to protect something else, like a car or a house, which people buy with other funds. Conventional insurance is not used to buy the car itself, but to pay for repairing future damage. Also, conventional insurance does not pay for routine maintenance or any other predictable loss, which health insurance now does. So, health insurance is like a savings account set aside to pay for health care. But, because only extremely wealthy people could save enough of their own money to pay for the care they may need, health insurance is used to spread those costs across the population.

Q: Why do you think the individual mandate is such a source of contention?

A: Congress has never enacted a law exactly like this one, and there is no Supreme Court precedent that is exactly on point. The most principled reason for objecting to the mandate is that some people believe that the federal government should not have the power to require people to buy a commercial product they don't want. However, this misses the point that they are already in the market for health care and that health insurance is simply a means of paying for the care that they have used or will use. Moreover, this objection appears to be grounded in a belief the government is infringing on individual liberty. Liberty is protected by the Due Process Clause of the Fifth Amendment. Notably, the challengers do not (and could not) claim that Massachusetts violated individual liberty by requiring individuals to have health insurance. Instead, they base their argument on Congress's power to regulate interstate commerce, Article I of the Constitution. In other words, they argue that the federal government cannot do what states can.

There may also be political and ideological motivations to challenge the Affordable Care Act. Some people, including conservative legislators who insisted that health reform preserve the private health insurance market, oppose any greater role for government in health policy. But the Supreme Court will decide the case based on Constitutional doctrine, not on policy preferences.

Q: Are there relevant legal precedents in which government has required individuals to participate in programs?

A: Yes, but none is exactly on point. The Court has upheld a federal law (the Militia Act of 1792) requiring able-bodied men to buy their own guns and ammunition in order to be ready to fight in a militia. In the past, the federal government required adult males to serve in the armed forces, and it currently requires citizens to serve on juries. Some scholars argue that these requirements have more to do with citizenship than does having health coverage. The Court has also upheld federal prohibitions on individuals possessing controlled substances (marijuana for medical use) and growing more wheat than allowed under federal quotas, because of the effect on the national market for those commodities. Whether and how these precedents apply to the individual mandate is a source of serious debate.

Submitted by: Lisa Chedekel

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