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The Affordable Care Act – Supreme Conflict


By Mark L. Horn, MD, MPH, Chief Medical Officer, Target Health Inc.


It is more than proper that ON TARGET acknowledge the momentous argument scheduled this week in the Supreme Court.


Virtually all engaged in health care are aware that constitutional challenges to the Affordable Care Act are about to be argued before the Court which has devoted an almost unprecedented amount of time for oral arguments. I am therefore, honored and flattered that the editors of ON TARGET have asked me to comment on the matter, a task I approach with the upmost humility.


First, I am not a constitutional lawyer, and individuals with that background have commented on both sides of this issue which has been argued for months in both the Medical and Lay press (I cannot speak for Legal journals which I don’t read, but suspect the arguments have been even more intense there). From my medical perspective there are elements of the Act that I find congenial, (among them interestingly enough, the quite controversial individual mandate) and some I view with at least modest concern, (among these are the cost control mechanisms, the expansion of Medicaid, and the first dollar coverage for ‘preventive care’). However, when I think of the questions before the Court, I’ve decided that none of these views matter, compared to the importance of supporting and passing the ACA.


Whether any of us supports, or dislikes, specific elements in the Act, is, I have come to believe, tangential to the larger question which is, of course, is the Act constitutionally sound? As noted, on this matter, many much more expert than I (including Federal judges) have opined without consensus, so the matter is clearly a proper one for the Supreme Court. That said, it is important for citizens to weigh in with their expectations for how the Court handles the issue.


The Affordable Care Act was born amid great controversy and remains, if the polls are to be believed, politically unpopular. Due to the polarization in our politics, it is evidently among the rare (perhaps only) pieces of major social legislation passed on a strictly partisan basis, e.g., there was no minority support. Given that, it is important for the reputation of the judiciary and fundamental faith in our system that Americans believe that the Court approaches this issue in an apolitical and non-partisan fashion. Since (again, my perception only) it seems that many believe the conservative justices will oppose, and the liberal justices will support the Act, one reassuring outcome (again, for this observer) would be unanticipated votes from either group.


In this instance, confidence of the citizenry in the process may be as important as whether people are pleased with the outcome. Due to the polarity of our polity the Justices will be criticized and accused of politicization irrespective of their decision – the true vote will be the historical judgment, which by definition will take time. This verdict will become a historic part of Supreme Court jurisprudence; as citizens we can only hope that the Justices appreciate the gravity of both their decision and how they are perceived to reach it, overcome the political pressures and their individual prejudices, and wisely apply the law – Americans deserve no less.


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