28 Mar

Louise Annarino
March 27,2012

What is health care? it is more than curing the sick or saving the dying.It is also preventing disease and enhancing wellness. In fact, Medicare has 3 parts: hospitalization, in office medical treatment and preventive care, and pharmaceutical coverage. The oral arguments both sides made today, and the questions of the Supreme Court Justices pivoted about a conception of saving lives through emergency treatment. it is easy to see how this happened. In arguing for the ACA (Affordable Care Act) one might think it best to stress the harm the ACA seeks to prevent in the strongest fashion, i.e. preventing the deaths of Americans. The opposition arguing against would argue that hospitals do not refuse treatment, and no one will die from lack of treatment even if they are uninsured since emergency rooms don’t refuse treatment. Focusing on emergency care is shortsighted.

Justice Scalia engaged in a conversation with General Verrilli who argued in support of ACA,each falling into the trap of distilling health care down to ER care:

GENERAL VERRILLI: No. It’s because you’re going — in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we’ve obligated ourselves so that people get health care.

JUSTICE SCALIA: Well, don’t obligate yourself to that. Why — you know?

GENERAL VERRILLI: Well, I can’t imagine that that — that the Commerce Clause would –would forbid Congress from taking into account this deeply embedded social norm.

JUSTICE SCALIA: You — you could do it.

It is time for a history lesson. “In 1946, Congress passed a law that gave hospitals, nursing homes and other health facilities grants and loans for construction and modernization. In return, they agreed to provide a reasonable volume of services to persons unable to pay and to make their services available to all persons residing in the facility’s area. The program stopped providing funds in 1997, but about 200 health care facilities nationwide are still obligated to provide free or reduced-cost care.” – http://www.hrsa.gov/gethealthcare/affordable/hillburton/

I am familiar with this case, having assisted in enforcing its provisions while a Columbus Legal Aid Society Lawyer,1978-83, when local hospitals were failing to notify eligible patients of the program; denying care to those unable to afford treatment and/or suing them for unpaid charges which should have been covered under Hill-Burton. Is there a societal norm to treat those in need of medical care? Perhaps, but it is not consistently applied; and in the case of hospitals, did not exist under the law until hospitals needed the latest technology and machinery but could not afford it without help from the federal government. The competition between hospitals to have the latest and best drove this bill. Hospitals improved their competitive edge. To get the federal money to do so, they agreed to not turn away those seeking emergency room treatment. They agreed to stop the bleeding, restart breathing, sew up or put in a cast those in need of emergency care. What happens after the emergency is over, i.e. the person will not soon die is not part of the pact. Once one survives the emergency, further treatment is not assured. If one has no insurance, he must pay out-of-pocket. I am concerned the next step will be to repeal Hill-Burton requirements. Justice Scalia would have no problem doing so.

Justice Scalia spoke correctly. Not only could we imagine a system where hospitals and doctors are not obligated to provide health care; we were operating that way until 1946. We still are except for emergency care in the ER, and a percentage of reduced-cost hospital services for income eligible patients. Hill-Burton applies only to participating hospitals (not every hospital participates), and only to hospital costs. It does not apply to doctor’s services.

To focus on emergency care, a saving lives paradigm, and hospitalization needs is too limited a discussion. Health care is so much more.

Justice Kennedy expressed his concern that healthy young persons are mandated to pay for care they don’t need. He assumes more old persons than young persons die. Of course! But health care is about more than saving persons from death. Justice Scalia expressed a belief persons could buy health insurance when they go to the hospital, no need to mandate it beforehand. Again, he focuses on emergency care, hospital care; not health care.

I wonder if the arguments would be better presented by women. After all, we need health care no matter our age. We bear the babies while young, and we take the kids to the pediatricians. We also push the men we love to go to the doctor they strenuously avoid admitting they need to see. We understand health care as much more than emergency care.



  1. Albert A. Gabel March 28, 2012 at 8:49 am #

    7190 Coffman Rd. The U.S. Supreme Court starts hearing argument on this
    Dublin, Ohio 43017-1032 case on Monday, March 26. This merge letter was mailed
    614 889 8282 on this date to all nine U. S. Supreme Court Justices.
    agabel7190@aol.com You may want to send them a letter. This letter and ideas
    March 23, 2012 are not under copyright and may be used and attributed
    to me. AAG
    The Honorable Robert G. Roberts
    Chief Justus
    U. S. Supreme Court
    1 First Str., NE
    Washington, DC20543

    Dear Justice Roberts:
    Please write an opinion on the Patient Protection and Affordable Care Act (PPACA) which is constitutionally correct, fair and morally just, and urge the other justices to join in writing your opinion. Many constitutional scholars whom are not politically involve in PPACA, have the opinion that it is constitutional and should be left as it is. Our seven grown children and one grown grandchild and their families depend on you so they can have a normal life span and pursuit of as pain-free and happy lives as possible due to affordable medical care. Several have been denied fair medical insurance and one has had her benefits denied because treatment of her multiple sclerosis is expensive.

    The Patient Protection and Affordable Care Act, when it is fully in effect, it will help more needy citizens than any safety net since the Social Security law was enacted in 1935. Among the many important provisions, it will prevent medical insurance companies from denying coverage of preexisting conditions, prevent annual or life time limits of care, prevent insurance companies from dropping patients, prevents them from denying claims for serious illnesses or injures, prevent exorbitant premiums, provides some preventive medical care, and will prevent most of the 1.5 million Americans from going bankrupt each year due to large medical bills.
    Beginning in 2014 small businesses will be able to purchase health insurance through an exchange where individuals and small businesses will be able to afford quality health policies. In order to assist small businesses in providing insurance to their employees, the health reform law provides small tax credits beginning this year. Federal subsidies will be available to individuals and families which are near poverty. Once expanded exchanges are available in 2014, most individual will be required to obtain health insurance or pay a reasonable fine. This is important to keep the cost of health insurance affordable for all Americans.
    The non-partisan Congressional Budget Office “Estimates the Patient Protection and Affordable Care Act will reduce the federal deficit by more than $1.2 trillion.”
    The Founding Fathers planned for our courts to be nonpartisan.

    Albert A. Gabel
    Professor Emeritus
    Ohio State University
    The justices are: John G Roberts*, Antonin Scalia*, Anthony M. Kennedy*, Clarence Thomas*, Ruth Bader Ginsberg, Stephen G. Breyer, Samuel A. Alito*, Sonia Sotomayor and Elena Kagan.

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