The Supreme Court and the Affordable Care Act

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Achieving health care access for its citizens has been a long and tortuous road in America. Almost 150 years ago, Bismarck established the expectation in Europe that health is a right, not just a privilege of those who can afford to pay. Yet in America, we have had great difficulty accepting this principle.

Finally, in Massachusetts in 2006, the Republican Governor (Mitt Romney) and the Democratic legislature were able to agree that access to health care should be granted to all Massachusetts citizens, and thus was enacted the nation’s first universal health coverage law. A few years later, following the Massachusetts lead, a very partisan Congress sided, along strict party lines, with President Obama to enact a similar law for the nation — the 2009 Affordable Care Act.

Now the US Supreme Court is set to decide if the federal law will stand or fall. They are debating a seemingly-narrow portion of the law — the individual mandate. But without that mandate, insurance for individuals cannot be priced fairly. We’ve all known for years that you could not purchase home insurance once your house was already on fire. Yet with no mandate, that is what we are suggesting for health insurance. It just cannot work!

So what is the danger to the Massachusetts law, now that the Supreme Court is deliberating? Probably none. The issue they are debating revolves around their interpretation of the Commerce Clause in defining federal jurisdiction. Since the Massachusetts law was enacted by a state, federal jurisdiction is not an issue. We are lucky this is the case, since the Massachusetts law has been remarkably successful. We now have 98 percent of our people covered by insurance, and no real debate about whether or not the law should stand. Most Massachusetts citizens are proud of the law, and stand firmly behind it.

At the federal level, the real issue is whether this court will make a political decision or a judicial one. What a shame it would be for the many beneficiaries of the federal law to see it fall apart. At stake are many hard-won services recently gained, such as expanded coverage for young adults on their parents’ plan, expanded Medicare coverage, increased coverage for preventive services, birth control and ob-gyn services, pre-existing condition coverage — and by 2014, expanded insurance coverage for millions of people currently uninsured.

The Affordable Care Act was a major step forward in assuring that Americans could expect health care as a right, not a privilege. Let’s hope that the citizens of the other 49 states don’t lose this coverage because of some arcane constitutional interpretation, or worse yet, because of party politics infringing on the decision of the highest court in the land. That would indeed be a travesty of justice!

Harris A. Berman, MD FACP is the dean of the Tufts University School of Medicine, a professor of Public Health and Community Medicine, and the former CEO of the Tufts Health Plan.