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Wendy Mariner on U.S. Supreme Court Health Care Reform Case

Inaugural Faculty Council Distinguished Service Lecture tonight


Led by BU’s Wendy Mariner, more than 100 health law professors have submitted a brief amicus curiae to the U.S. Supreme Court in the highly watched case concerning the constitutionality of the 2010 federal health care overhaul law. The case, Department of Health and Human Services v. Florida, will be argued before the justices on March 27.

Mariner, Edward R. Utley Professor of Health Law, Bioethics, and Human Rights at the School of Public Health, a School of Law professor of law, and a School of Medicine professor of sociomedical sciences, is a lead author of the brief, with Mark Hall, a Wake Forest University professor. Mariner will discuss the brief today at the inaugural Faculty Council Distinguished Service Lecture at 5 p.m. Her talk, titled Faculty in the 21st Century: Scholarship Is Not Enough, is the first in an annual lecture series sponsored by the Faculty Council to honor members of the BU community who through scholarship and civic engagement challenge the perception that higher education is out of touch with American life.

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.

“Health insurance—public and private—is the predominant method of paying for health care,” says Mariner. “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 health care financing by making health insurance virtually universal and affordable,” she says.

The Supreme Court will review an appeals court decision that struck down a requirement in the Patient Protection and Affordable Care Act that people obtain health insurance coverage. The U.S. Court of Appeals for the 11th Circuit, in Atlanta, said the mandate overstepped Congressional power to regulate commerce. The government has appealed. A decision by the Supreme Court is expected sometime this spring.

The professors argue in their brief 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 brief says. “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 to pay.”

Mariner and Hall were joined by Charles Fried, a Harvard Law School professor, as counsel of record, and Abbe Gluck, a Columbia Law School professor, and Gregory G. Rapaway, of the law firm Kellogg, Huber, Hansen, Todd, Evans & Figel, as cocounsel. George Annas, a William Fairfield Warren Distinguished Professor and chair of the SPH health law, bioethics, and human rights department, and Leonard Glantz, an SPH professor of health law, bioethics, and human rights, contributed critiques and input for the brief.

Mariner recently sat down with BU Today to talk about the legal wrangling and her participation in the case.

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

Mariner: Mark Hall and I discussed submitting a brief after I made a presentation on the subject at the fall 2010 American Public Health Association 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 2011 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.

The brief discusses the fact that people in the United States are treated for illness regardless of whether they can pay, which you refer to as the professional “rescue ethic.” Explain how this plays into the health care market.

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.

You say health care is fundamentally different from other parts of the economy—how so?

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.

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

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.

Why do you think the new law’s individual mandate is a source of such contention?

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’ 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.

Are there relevant legal precedents for government requiring individuals to participate in programs?

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.

Professor Wendy Mariner delivers the inaugural Faculty Council Distinguished Service Lecture today, Tuesday, February 28, from 5 to 7 p.m. in the Trustee Ballroom, ninth floor, One Silber Way. A reception will follow. The event is free and open to the public.

Lisa Chedekel can be reached at chedekel@bu.edu.


13 Comments on Wendy Mariner on U.S. Supreme Court Health Care Reform Case

  • Thomas Paine on 02.28.2012 at 6:38 am

    Regulation of the market under the commerce clause was never intended by the founders to be exploited to force a citizen of the United States to buy healthcare insurance. If the federal government can do this then it can force you to eat apples because based on your logic nearly everyone eats apples and apples are often sold across states lines too.

    The Obama administration and the democrat controlled congress have over stepped their bounds as historically predicted when one party controls the legislative and executive branch. This has happened three times in our history once under FDR, then under LBJ and now under Obama and all three times it resulted in a loss of liberty, a destruction of the US dollar, and the institution of another federal ponzi scheme in an effort to con the American sheople into trading their coveted votes for more bread and circuses.

    Sorry Wendy but no one who is even moderately cephalized is buying into your nonsensical lover broad interpretation of the constitution. Thankfully the SCOTUS still has enough members who actually “read the constitution” (unlike the bill in question that had to pass before we could find out what was in it) and use it as a nonpartisan governor of the laws enacted by the legislative branch rather than seeing it as a living document they can loosely reinterpret to meet their latest political desires.

    • Aaron L'Heureux on 02.28.2012 at 9:23 am

      Do you similarly object to Massachusetts regulating health care and requiring ‘universal’ coverage?

    • Clarifying on 02.29.2012 at 4:20 pm

      The logical correlation is not: “it can force you to eat apples because…nearly everyone eats apples…” It is “it can force you to arrange to pay for those apples you are inevitably going to eat, so the rest of us don’t have to.”

      I also believe that Professor Mariner (who I think it’s safe to say you do not know on a first name basis, betraying your rather abominable manners) said very clearly that the Supreme Court would be looking at this matter outside of policy and in the framework of the Constitution. She and her fellow scholars are not angry internet posters; they are scholars in the health care and law fields who, I assure you, are well versed in the Constitution, clearly evidenced throughout her Q&A and the case she presented. I do think it’s amusing that your misuse of quotations make it sound like some members of the Supreme Court may not have read the Constitution.

      Professor Mariner also produced a conversation and explication rooted in coherence and research, unlike the screed of meaningless soundbites you produced. I counted at least twenty that have become more overplayed than most awful pop songs.

      If you have a cogent argument against the salient points of her case, by all means. Otherwise, your rants and condescension that are 90% cobbled-together phrasing fed to you by news outlets and your political party of choice do little to further your cause.

      • Ron Paul on 03.02.2012 at 7:09 am

        I happen to be a scholar in the healthcare field too.

        Sorry sweetie but I have no respect for the arrogance of liberal elites who espouse their purity while simultaneously attempting to sacrifice the integrity of their colleagues and countrymen who are not liberals. You have done nothing here but insult me while sadly not presenting any clarification of Wendy’s argument.

        As for how many members of the SCOTUS have not read the constitution all one has to do is read the McDonald decision to recognize this fact. We nearly lost our natural right to defend ourselves at the hands of these pompous arrogant fools who have been appointed in an effort to ensure stare decisis in Roe v. Wade.

        I am also fully aware of why amicus briefs are filed. In this case as in the McDonald case some are filed by so called scholars who let their political ideology bias their interpretation of the constitution.

  • Ron Paul on 02.28.2012 at 9:43 am

    Yes and no. On a moral level yes I do but the federal constitution does not limit the rules and regulations a state can enact beyond its protection of our natural rights as specifically defined under the 14th amendment. In fact, it specifically leaves to the states via the 10th amendment a tremendous amount of wiggle run for trying new things. Fortunately if I do not like what Massachusetts does I can move to another state without renouncing my citizenship. If we lose freedom on a federal level where will we go?

  • Anthony Priestas (Liberty at BU) on 02.28.2012 at 11:40 am

    The Commerce Clause has been dangerously misinterpreted by Supreme Court precedent, and abused by Congress. Obamacare is wrongheaded for at least three reasons:

    1. Legal) The constitutionality of Obamacare is in question. The Commerce Clause was not intended for the federal government to oversee/regulate/mandate all aspects of economic activity. The logical conclusion of the argument used by Obamacare supporters, and by Mariner in the article, is that there is no limit to what Congress can regulate since all human activity affects economic “commerce” to some extent or another – anything not regulated means the feds just haven’t gotten around to it, yet. The Supreme Court once foolishly ruled in favor of regulation even in the case of food production for private consumption, as noted by Wickard v. Filburn, whereby Fliburn was growing more wheat than was mandated by the government in order to keep wheat prices artificially high during the Great Depression. Such cases are then cited to favor more intrusion of government into economic activity.

    The actual intent of the Commerce Clause is really quite simple (it’s only 16 words, you know) – to regulate, or ‘make regular’, the rules guiding trade among the states. States were more independent from the federal government back then; as such, rules were established to prohibit states from interfering with the flow of commerce across state lines. This sentiment was summarized nicely by Thomas Jefferson,

    “For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature;”

    Furthermore, the penalties imposed are not constitutional, since, if the government argues it is a tax, it is neither “apportioned nor uniform.” The government backpedaled and claimed the fine is a civil penalty.

    2. Moral) Even if the Commerce Clause retains its modern interpretation, that federal mandates and regulations are warranted when people engage in economic activity, how can this apply when people are not engaging in the specific activity? As I once read by Reason Magazine contributor, David Harsani, “Is NOT doing something the same as doing it?” Now, Mariner et al. wish to define “economic activity” as including non-activity? And by what moral right does one group of citizens force the others to engage in private transactions? And then threaten with fines and jail if they refuse? If I wish to abstain from purchasing anything, shouldn’t I have that right? In this sense, Romneycare might be constitutional, but it is certainly immoral (not unlike the “War on Drugs”).

    3. Economic) If Romneycare (2006) is the fundamental blueprint for Obamacare, then the country is sure to see increases in insurance premiums. Romneycare, like Obamacare, has two basic goals (if you’re not skeptical of government, like myself), insuring everyone and reducing costs. But what about those costs? Massachusetts pays higher than average premiums, and the costs are continually rising. In fact, the state released a report stating that between 2007 – 2009, premiums increased at a rate between 5-10% per year, outpacing inflation; deductibles and co-payments doubled in some cases. All this to reduce the uninsured from 6% of the state population, to about 4% (2009; in 2008 it was 2.6%). State expenditures on healthcare have risen by 33% from ~$10 billion to ~$14 billion from 2005-2011, all while the state faces a $1 billion budget deficit for 2012. If Massachusetts can’t contain costs, why should we think the federal government can do any better? Every budget estimate for every federal program has been underestimated, every time. Why would it be different now?

    Nix Obamacare. It’s unconstitutional, it’s immoral, and it’s economically stupid.

    Those that would like to hear the arguments challenging the constitutionality of Obamacare by constitutional expert, Ilya Shapiro, are invited to attend his talk at the BU Law School (Barrister’s Hall), March 29th, 1pm. I especially encourage Mariner and her colleagues to attend.

  • Jason on 02.28.2012 at 1:12 pm

    I take serious objection to the government forcing me, or anyone for that matter, to purchase a product by threat of fine or prison time. There exist no sound moral argument for such an action. Some will say that health care is a right and must be provided for those that cannot afford it by having the government intervene. Firstly, this only encourages that welfare state of the country, which has no justification in the Constitution to provide based upon James Madison’s assessment of the document, “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents. With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

    Despite this, I do think that people having access to health care would result in a positive effect for society at large, but cannot agree that it should be mandated and overseen by the intrusive hand of the government.

  • Jim B on 02.28.2012 at 5:48 pm

    Let me translate this BS for you. There is something called a “resuce ethic” that supposedly stands for the proposition that medical professionals have an ethical obligation to provide emergency life-saving treatment to anyone who needs it, without regard to their ability to pay. But this obligation has been transformed from a voluntary professional standard into mandatory federal and state laws which require hospitals to treat anyone for even minor ailments if they show up at the emergency room. And now, because it is theoretically possible that someone who does not choose to have health insurance might be involuntarily taken to an emergency room and given medical treatment that he hasn’t requested and might not be able to pay for, we get to pretend that he is “engaged in the market for healthcare” and force him to buy an insurance policy that covers all sorts of conditions that he doesn’t want and will never need. In other words, as the government has provided you with a “benefit” (access to non-insured healthcare) that you didn’t ask for and may never even use, the government now supposedly has the right to force you to pay for that “benefit” in advance, even if you are ready, willing, and able to pay for medical services without an insurance policy.

    If this is constitutional, then it is also constitutional for the government to create a “transportation insurance mandate” and force you to buy a Chevy Volt, or a “media insurance mandate” to force you to subscribe to NPR. I understand that progressives want to use Obamacare as the opening wedge to force single-payer socialized medicine on us, but three different schools at BU ought to be embarrassed by Professor Mariner’s cynical and intellectually bankrupt arguments.

  • Nathan on 02.29.2012 at 12:36 pm

    What I find most interesting about the above responses – are that NONE of the arguments would apply to a single payer system. If the government were to staff hospitals open to everyone, or even open to a subset of the population, similar to the VA hospital system open to veterans – there would be no constitutional issue.

    It is the very halfway measure towards what most of the G10 considers a worthwhile social good, that brings the constitutionalty into question.

    • Ron Paul on 03.01.2012 at 8:51 am

      The entire Euro zone is on the bring of collapse not because it pays for unconstitutional wars like we do but becuase of socialism. Clearly if socilism worked the EU would not have any fiscal problems to speak of but since that is not the case we must reject the null hypothesis on that issue and conclude that socialism has a boat of problems.

      A true free market healthcare system on the other hand, without crony capitalism like we have here in the states now, will work as evidenced by the cost of Lasik (the price of which has come down while the technology and accessibility have improved). The government’s intervention in our healthcare system is what is driving up the price The waste that goes on in the medical profession today is nauseating.

      We need to untie healthcare from our jobs, let the free market work and limit the power of the federal govern to intervene rather than unconstitutionally expanding its reach even further. A tax free healthcare savings plan and catastrophic insurance with high deductible (that you can pay for from your tax free healthcare saving plan) is what you need to ensure your good health while simultaneous allowing free market capitalism to improve the efficiency of the system and drive costs down.

      Another segment of our economy that suffers from the same run away inflation is academia and here too the problem is created and then facilitated by government subsidization of the free market. Can anyone else see the pattern?

    • Dan on 03.01.2012 at 1:12 pm

      That’s completely completely wrong. All of the same general arguments apply.

      The power to have VA hospitals is through the power to raise and manage armies, not regulate commerce.

  • Ron Paul on 03.01.2012 at 1:23 pm

    How can you logically compare the cost and efficacy anf funding of the VA system to that for private citizens? Which is BTW the central topic of this thread?

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