By Marcia Angell, M.D.
The New York Review of Books, June 7, 2012
I admire Ronald Dworkin greatly, and I certainly defer to him on most legal matters, so it is with some reluctance that I take issue with his essay “Why the Mandate Is Constitutional: The Real Argument” [NYR, May 10]. I have several objections, most of which concern not the legal matters, but his more general comments about the virtues of the Affordable Care Act (ACA).
Dworkin exaggerates the benefits of the ACA. For example, he writes that “the act provides, among other benefits, health care insurance for the 16 percent of citizens who now lack it….” It does not. Of the 50 million uninsured Americans at the time the ACA was enacted, the law was designed to cover just 32 million, leaving 18 million still uninsured. Half of the 32 million would gain coverage simply by virtue of expanding Medicaid eligibility—something that did not require the whole apparatus of the ACA. So the mandate that requires uninsured people to buy private insurance, which is at the heart of the Supreme Court challenge, would cover only 16 million people, a mere 5 percent of the population.
He also refers to the Massachusetts mandate as the core of “that state’s apparently successful health care program, on which the national act was partly based.” But the Massachusetts plan, which has been in effect for five years, is rapidly becoming unsustainable. Health care now consumes 43 percent of the state budget, a percentage that has been growing, while expenditures on every other budgetary category—including education, human services, infrastructure, law, and public safety—have been shrinking. Although Massachusetts began with advantages the rest of the country doesn’t have—an already high rate of insurance and a large “free care pool,” provided by hospital and insurance fees, that was tapped to subsidize the new plan—it is still unable to afford it.
The legislature is now trying to contain costs by devising new payment methods for providers, while insurers are raising premiums, deductibles, and copayments. The problem in Massachusetts is that there was no way to control the costs of an inherently inflationary reform, just as there isn’t in the ACA. Massachusetts should be seen not as an inspiration, but as a warning.
Dworkin argues that there are national precedents for the ACA mandate to purchase health insurance. But is that true? The mandate is not like the requirement to pay for Medicare and Social Security through payroll taxes. Instead, it requires people to buy a commercial product from investor-owned companies at whatever price the companies choose to charge. In short, people are required to contribute to the profits and corporate salaries and marketing costs of companies like WellPoint and UnitedHealthCare. I don’t believe there is any precedent for that.
My objection to the mandate is not that it requires people to purchase insurance, but that it specifies they buy it from investor-owned companies, whose practices have done much to make our health care system the “unjust and expensive shambles” Dworkin accurately describes it as being. No one should be required to enter this treacherous market; it is not the same as paying for publicly administered services, like Medicare or police and fire protection.
Dworkin dismisses concerns that if Congress can make us buy private health insurance, then it can make us buy any other commercial product, arguing that public opinion would prevent Congress from unreasonably extending its power in that way (“politics supplies the appropriate check”). That’s a mighty thin reed to hold on to, given the recent record of Congress and its capture by corporate interests. I would feel better if we didn’t provide the precedent.
He is also too sanguine about the ability of regulations to stop the worst abuses of the private insurance industry, such as denying coverage for people with pre-existing conditions. The fact remains that these companies will profit by avoiding high-risk patients if they possibly can, and they will probably find ways to do so. The ACA does some of that work for them, by allowing them to charge up to three times as much for older patients as for younger ones, age being a good proxy for a higher risk of chronic illness. A few years ago, in a private discussion with a senior executive of America’s Health Insurance Plans, the industry’s trade association, I was told that if the regulations did squeeze the profits of the insurers, they would simply raise the premiums. There is nothing in the ACA to prevent that.
In a press conference on July 22, 2009, while the ACA was being crafted, President Obama said, “Now, the truth is that unless you have what’s called a single-payer system in which everybody is automatically covered, then you’re probably not going to reach every single individual.” He was right. Moreover, a single-payer system is the only way to do so while containing costs. Polls have shown that most Americans favor it, and a Massachusetts survey showed that physicians there prefer it to the state’s current system. I’ve advocated extending Medicare to everyone by dropping the qualifying age one decade at a time, and delivering it in a nonprofit system, something I believe the public would enthusiastically accept.
Dworkin, like many others, dismisses a single-payer system as unrealistic, saying it would be “politically impossible in the United States now, or in the foreseeable future.” But the fact that Congress lags behind public opinion is surely partly due to liberals accepting the premise that a single-payer system is off the table, while what is truly unrealistic is imagining that we can provide universal and affordable health care in a market-based system.
Dr. Marcia Angell is senior lecturer in social medicine at Harvard Medical School.
The web page that contains Dr. Angell’s letter and a reply by Ronald Dworkin can be found here.