There was never much doubt that if the Supreme Court ever got a chance to decide the constitutionality of the health care reform law it would be in for rough sledding from the court’s five conservatives.
The half week of court questioning on the law more than bore out that dire prediction. From the tone and temper of the four conservatives’ biting questions about the law, and the already well-known opposition to the law of the fifth judge, Clarence Thomas – who did not break his several years of silence by asking one question or making one comment – the law is almost certain to go.
The winners will be the conservatives who have waged relentless war against the law from the instant it was proposed. They claimed that it was too costly, too overburdening on businesses, too unpopular with a majority of Americans. Their biggest gripe, which is the one that the court will latch onto to strike down the law, is that it was a gross infringement on individual liberty. It allegedly whipsawed Americans into buying insurance.
These arguments are less important than how the judicial torpedoing of the law will hurt millions of poor, working-class Americans that desperately need health care, but couldn’t get affordable care before the law was passed, and are just as unlikely to get affordable care after it’s struck down. It’s no mystery who among those millions will be hurt the most.
A report by the Commonwealth Fund found that blacks and Hispanics made up nearly half of the estimated 50 million Americans with absolutely no access to affordable health care. The even starker reality is that the number of blacks without a prayer of obtaining health care at any price has always been wildly disproportionate to that of whites – even poor whites.
It has steadily gotten worse over the years. The great fear of the GOP health care reform opponents and the health care industry lobby which includes private insurers, pharmaceuticals and major medical practitioners was that they’d have to treat millions of uninsured, unprofitable, largely unhealthy blacks. That would be a direct threat to their massive profits. This was the prime reason they waged fierce war against passage of the law.
The majority of black uninsured are far more likely than the one in four whites who are uninsured to experience problems getting treatment at a hospital or clinic. This has devastating health and public policy consequences.
According to a study by the Joint Center for Political and Economic Studies, blacks are far more likely than whites to suffer higher rates of catastrophic illness and disease, and are much less likely to obtain basic drugs, tests, preventive screenings and surgeries. They are more likely to recover slower from illness, and they die much younger.
Studies have found that when blacks do receive treatment, the care they receive is more likely to be substandard than that of whites. Reports indicate that even when blacks are enrolled in high quality health plans, the racial gap in the care and quality of medical treatment still remains low.
Private insurers routinely cherry pick the healthiest and most financially secure patients in order to bloat profits and hold down costs. American medical providers spend twice as much per patient than providers in countries with universal health care, and they provide lower quality for the grossly inflated dollars. Patients pay more in higher insurance premiums, co-payments, fees and other hidden health costs.
The health care law even when all its provisions would eventually kick in during the next decade would not completely end the excessively high costs of health care or fully guarantee universal coverage. But it broadened the options for coverage by prohibiting insurers from excluding those with preexisting conditions, provide subsidies for the poorest of the poor, and guarantee coverage for tens of thousands of children and younger persons that did not have access to quality care.
The potential devastating human consequence of an adverse decision by the high court on the law is not a major concern of the conservative justices. It is strictly a matter to them of a constitutional interpretation, not how their interpretation will affect the lives of those who have perennially been shut out of the health care system.
There is some hope that the court’s smackdown of the law will ignite a firestorm of protest, and that firestorm will prod Congressional Democrats and the Obama administration to go back to the drawing board and reintroduce a retooled version of the health care reform law. That’s a possibility.
But it won’t happen in the middle of a tough presidential election year campaign, with the public deeply divided on whether the law was ever a good thing or not, and with a House still solidly in the sway of the rabid opponents of Obama’s health care reform proposals.
For those who are the most needy when it comes to getting affordable health care, the decision to dump the law no matter how that decision is framed by the court will be a colossal disaster.
Earl Ofari Hutchinson is an author and political analyst.