By Jennifer Granholm, POLITICO
They tell it like it is at the beauty shop or barbershop.
I went for a haircut on Saturday. My hairdresser Carmelita and I got to talking about health care and the decision now in the hands of the Supreme Court.
“Do you have health insurance?” I asked.
“No,” she said softly.
“Are you kidding? It’s just too expensive. No way can I afford it.”
“Would you buy it if you could?”
“Of course!” she said, her brow furrowed at the idiocy of the question. “I’m still paying off a $3,000 health care bill from last year when I had walking pneumonia and finally went to see the doctor. They ordered an X-ray of my chest, and my life hasn’t been the same since, trying to pay that medical bill. Of course, I’d have health insurance if I could afford it! Anybody would.”
And then she said something that turned the “individual health care mandate” opponents’ argument on its head: “I’m already forced to buy health care – but it’s in the emergency room. It’s almost bankrupting me. Do these guys think that’s my choice?”
A “health care mandate,” it seems, is in the eye of the beholder.
Carmelita has been mandated into the uninsured health care market, banished from “normal” care by a wholly unaffordable insurance system. She doesn’t have insurance, but believe me, she’s participating in commerce. She was forced, mandated to purchase emergency care or choose to risk her life. She doesn’t want that kind of health care coverage; like any rational person, she’d prefer to buy an affordable policy. But like tens of millions of others, she can’t afford it. The market for health care services is ubiquitous; the question is whether Congress mandates emergency-room market participation or a rational health insurance market system. The old system is no less a “mandate” than the Affordable Care Act.
And let’s be honest about where the pre-“Obamacare” emergency-room mandate is coming from. That mandate comes from congressional acts, too — for example, the 1986 Emergency Medical Treatment and Active Labor Act, which requires hospitals to treat anyone needing emergency care regardless of ability to pay. Indeed, Congress has enacted over the years a complex web of authorizing statutes and rules that regulate health care and allow insurance companies to price people out of the market.
Carmelita works two jobs — at a local sports store and at the beauty shop. Neither of her jobs provides health insurance. Last year, she earned $11,000 per year at the sports store, and, hopefully, she says, she’ll earn a little more than that at the salon this year, but it’s a new job and she’s building up a clientele. She has a family history of breast cancer, but she cannot afford to get a mammogram.
Carmelita is an unwilling conscript, a mandated gambler in the health care market. She doesn’t want to engage in the market in this fashion, but the system leaves her no choice. And to her, it’s amazing that justices with lifetime appointments who will never have to worry about health care personally, who themselves will never be forced economic bystanders to the health insurance market, are likely to decide this case based upon arcane legal theory — and not upon human reality.
Here’s a plea for the justices to “remember the common touch,” as federal appellate Judge Damon Keith used to tell me when I was his law clerk: Justice Anthony Kennedy, please, emerge from behind the pillars of the marble, sequestered court-palace and drive to a D.C. neighborhood barbershop. Ask the barber whether he’s insured. Walk the streets of D.C. and ask people who are working for minimum wage at the coffee shops whether they “choose” to not have insurance or whether the system essentially mandates it for them. Being forced out of the insurance market doesn’t mean one is absent from the health care market. In fact, a person without insurance is arguably a disproportionately oversized player in the marketplace of health care, most likely having more impact on commerce — uncompensated care, debt, bankruptcies, collections, cost shifting — than the person with an insurance policy.
Open the gilded court doors, justices, and step outside. Don’t listen only to the arguments of Ivy League lawyers. Please listen to real people. Then you’ll hear the truth: They’ve already been mandated to buy health care — alas, it’s just the least effective, most expensive kind.