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The Supreme Curve Ball

The Supreme Court decision on the Affordable Healthcare Act threw us a curve ball. Many people who predicted the outcome of the ruling swung and missed – including me.

The Court agreed with the government’s argument that the individual mandate contained in the Affordable Care Act was not a tax … for purposes of the Anti-Injunction Act (which would have prevented a lawsuit regarding assessment or collection of the mandate and forced those bringing suit to sue for a refund after paying it).
At the same time, the Court declared that the individual mandate contained in the Act was a tax … for purposes of validating and enforcing the mandate.
To me that’s a stretch. That’s like legal argument defending a dog bite lawsuit by simultaneously alleging that (1) I don’t have a dog, (2) you weren’t bitten, and (3) my dog didn’t bite you.

President Obama has declared the Supreme Court decision as a “victory” but this victory is largely Pyrrhic.

The Supreme Court’s decision will become a rally cry for the 41% of Americans who believe the law should be overturned and the 27% of Americans who believe the mandate should be overturned. Romney’s campaign will emphasize Romney’s commitment to repeal the law – whether or not he truly intends to do so. While some argue that “President Romney” wouldn’t have the ability to repeal the law, President Obama’s decision not to enforce our country’s immigration laws shows that an executive order refusing to enforce laws can have the same effect as repealing a law. A dog with no teeth can’t bite you.
In addition, President Obama and all the legislators who supported the ACA have essentially approved the largest tax increase in US history … in an election year. How many voters will be happy at the thought of a new and expanding tax that coerces us to purchase a commercial product which we may not even be able to use? The growing public backlash in this regard is probably the reason that the White House is backpedaling and stating that the mandate really isn’t a tax … even though the same White House stated that the mandate was a tax in the media and during oral arguments on the issue. The mandate stands because it is a tax and now President Obama and our legislators have to live with the consequences of their decision. In case you were wondering, here are how each of the House members and the Senators voted on ACA.

But many people will think that the tax … er, um … penalty is OK because our government is going to provide us with insurance. Millions of more patients will be INSURED! If you’ve read WhiteCoat’s Call Room on a regular basis, you know why this is such a false and empty promise. Insurance amounts to a series of promises. First there is a promise that, in exchange for a premium payment, someone else will pay for your medical care. Then there is a promise that someone else will provide your medical care. Finally, there is a promise that you will be provided with the medical care you need when you need it.

While the government wishes to expand the number of patients who receive our government-mandated “insurance”, many states are planning to restrict the eligibility for the “insurance” that our government wishes to provide to us. In other words, states don’t want to pay for your insurance. A House Ways and Means survey showed that 71 of the Forbes 100 companies could save a total of $28.6 billion in 2014 by dropping health care coverage for their employees. The Affordable Care Act creates a financial incentive for your employer not to pay for your insurance. It shouldn’t be surprising that thirty percent of employers are planning to drop health care insurance for their employees when the Affordable Healthcare Act is implemented.

Now think about the effects of just these few fact patterns. When those employees lose coverage, what will happen? Perhaps the employees will be able to afford to purchase a private insurance plan. Even if they did, it is likely that the plan would be high-deductible so that the employees could save money on premiums. Perhaps the employees earn so little that they will be eligible for government “insurance” – if the states don’t cut the eligibility. That leaves a large group of people who earn too much to get Medicaid but who don’t earn enough to purchase decent “insurance.” What will happen to them? They will pay the tax … er, um … penalty and end up with no insurance. When employers drop the insurance benefits for their employees … and they will … their employees will receive less coverage because less coverage will probably be all that they can afford. Sure, the Affordable Care Act will provide “insurance” to an additional 30 million indigent patients, but the Affordable Care Act will also create more uninsured and underinsured patients from the group of people upon whom our country depends the most – our work force.

Medical insurance is only as good as the health care professionals who are willing to provide care under the terms of the insurance policy. accept the insurance as payment. Suppose you had a million dollars worth of Japanese yen in your pocket and you were in a rural Kansas coffee shop trying to buy lunch. You may be rich, but no one accepts your money. Similarly, if a doctor that you need to see using your new government mandated magical insurance plan doesn’t accept your insurance, then you either pay out of pocket for your medical care or you find someone else who accepts your insurance as payment. If few doctors take your insurance, you wait for an open appointment. It’s that whole fast care/free care/quality care triangle. Pick any two.
By now you should know that many doctors refuse to provide care to patients who are on government insurance. In Texas, one third of all the physicians don’t take Medicaid “insurance” due to low reimbursements and governmental red tape. Mayo Clinic in Arizona stopped accepting Medicare patients in 2010 after losing $840 million in 2009 due to low reimbursement rates. Patients with Medicare in the Raleigh, North Carolina area are finding that physicians who accept Medicare patients are “scarce.” All of these people have the magical medical insurance plan that so many more people will be receiving, yet many of the “insured” patients still cannot find medical care. Even though you will coerced by the IRS to buy into the concept that health insurance and health care are synonymous, they aren’t and they never will be.
The health care that you are able to obtain with your “insurance” may less than adequate, as well. Walter Reed Army Medical Center was just one of the government hospitals plagued by allegations of patient neglect and shoddy medical care. And you won’t find any government hospitals on the government’s own Hospital Compare web site. Ever wonder why?

Finally, keep in mind that medical insurance is also only as good as its covered benefits. Your medical problems just might not be a covered benefit on your insurance plan. Even though you have paid into the insurance plan for dozens of years, your covered benefits can change at any moment. Ask patients who have had to depend on their government “insurance” for care of their cancer or injuries, or asthma.

So our elected officials have foisted what amounts to a medical Ponzi scheme upon us and most of them will be long out of office before the medical insurance house of cards collapses. Tough luck, suckers.

Perhaps the thing that concerns me the most about the Supreme Court’s decision is the precedent that the ruling sets. Our highest court has now held that it is permissible for the federal government to impose a tax … er, um … penalty upon citizens in order to force citizens to purchase a private commercial product. In oral arguments, Justice Scalia joked about next creating a mandate that everyone purchase gym memberships to make sure that people stay healthy. Wasn’t funny. His point was spot on. Where do the new taxing … er, um … penalizing powers of our government end? I fear that we will only learn the answer to this question after the election.

The Supreme Court’s ruling and the implementation of this law are another example of how the Court and our legislature are hopelessly out of touch with the needs of the people and how to meet those needs. If President Obama’s actions and the Supreme Court’s decision don’t make our citizens realize that we need a profound change in the governance of our country, then woe to us all.

What a disappointment we will have been to our forefathers.


  1. The Founders are rolling over, no question. No SC Justice should be caving in to the pressure of the media. It shows a complete lack of objectivity, and reverence for the position held, period. I believe Roberts should be impeached, even if his calling the levies a tax. It shows that now, even without monetary compensation the SCOTUS can be “bought” for favor of perception.

    On the actual bill, I had a left-minded thinker accuse me of lying about my premiums going up 32%, because it wasn’t even going to be in effect until 2014. Yeah, and “how did you think those mean insurance people were going to foot the bill for all the mandated “preventive” care that was “free”?” I asked. The astounding ignorance baffles me. I do not have health insurance because 140 dollars more a month breaks my bank and those who believe it to be free, think the insurers are going to pay the difference!! So now, I take the chances that my kids are healthy and we just pay cash for doc visits and should catastrophe strike, I already know I am not alone. I just can’t stretch it any further. Thank you, “affordable care act”!!

  2. Roberts didn’t “cave” to the pressure of the media. He did what courts are supposed to do, and have for a long time done: recognize the presumption exists in favor of Constitutionality. The taxing power of Congress is nearly unlimited. There was never any dispute that if Obama called this a tax outright, or went ahead and instituted single payer, that it would be Constitutional. It was only a question because they tried to justify this “penalty” under the Commerce Clause.

    I despise Obamacare as much as anyone, but to paraphrase Roberts, “elections have consequences”. Obama did exactly what he said he was going to do when he ran – move us toward single payer. That’s what he did.

    And, physicians didn’t do much to stop this. Their biggest lobbying organizations supported it. Physicians and Republicans claim all the time healthcare is broken, but they’re only solution is tort reform. They offer no solution to any other issue, and certainly not any market based ones.

    Republicans had 8 years of Bush to make some kind of market reform, and what did they offer? More government interference in terms of the Medicare Part D expansion and tort reform. When there was a insurance “crisis”, many of you had handouts in your waiting room and could easily regurgitate all the insurer talking points. But where is an equal effort on something that actually benefits YOU?

    Blaming the Supreme Court and the Constitution may make you feel good, physicians, but if you don’t start getting engaged on something other than limiting your insurer’s risk, you’re as much if not more to blame than anyone.

    • Simply looking at the outcome of the SCOTUS decision is misleading. The predictions about the individual mandate being unconstitutional under the commerce clause were correct. It was also not within Congress’s neccesary and proper powers. The functional construction as a tax is what the majority used to keep the mandate, basing it on the function of the law as a tax and not the label of a penalty.

  3. ” In Texas, one third of all the physicians don’t take Medicaid “insurance” due to low reimbursements and governmental red tape. Mayo Clinic in Arizona stopped accepting Medicare patients in 2010 after losing $840 million in 2009 due to low reimbursement rates. Patients with Medicare in the Raleigh, North Carolina area are finding that physicians who accept Medicare patients are “scarce.””

    Sure, that will affect some, but the truth is you guys can’t all opt out from the government reimbursement scheme that pays roughly 1/2 of all medical expenses in this country. And the health insurers will only continue to squeeze you.

    Oh well, perhaps your liability carriers will go to bat for you like you did them. . . .

    • Opting out of government insurance isn’t the only way to make up for a decrease in payments. Some people play the game and win.

      If government pays less for a visit, what do you think will happen with the visits? They’ll be shorter and less thorough. Or there will be quick exams and referrals for problems that the primary care physician probably could handle but which are too time-consuming.

      “We’ll talk about a couple of your problems today, but then you’ll have to make another appointment for next week to talk about a couple of your other problems. And the week after that for a couple of your other problems. Have to stay on schedule so I can see eight patients per hour. Have a nice day.”

      High-risk or time-intensive complaint? Let me examine you quickly, then either go to the emergency department or here’s a referral for a specialist. That type of visit will decrease risk, take 2 minutes, and Medicare will pay the same amount as if the doctor spent 15 minutes with the patient.

      The mousetrap/mouse game will continue until slowly docs get fed up with all the administrative hassles in dealing with the government. There will be fewer and fewer available doctors and longer and longer waits.

      And if anyone thinks that single payer is the answer, consider the motivations involved in any single entity paying for a country’s health care. Hint: Health of the people isn’t first on the list.

      Like I said in the past – I’m glad I’m a doctor.

  4. I’ve been emailing the link to your blog & also tweeted it. This is the truth that so many people do not understand. Thank you!

  5. Much as I dislike the ACA, the supreme court actually made the right decision. It’s their job to adjudicate between conflicting laws – which has translated into blocking laws which are violating the constitution.

    The ACA is a tax. Congress has the right to impose a tax. Ergo,…

    That the law is stupid, unworkable or will do harm isn’t in the court’s purview. Dealing with that is Congress’ job. Shiver…

  6. Company Paid Health Insurance is Part of Your Salary

    Many people misunderstand who pays for health insurance. It is convenient to think that “good” employers provide health insurance, but “mean and stingy” employers leave their employees to scrounge for themselves. They complain that everything would be fine if we forced all employers to be “good”.

    This is part of the myth that we can increase prosperity by raising the minimum wage. We (supposedly) just have to force the “mean” employers to become “good” and pay more.

    In reality, an employee’s health insurance and all other benefits are part of his earnings, part of the total payment he gets for doing his job. The tax law encourages an employee to receive some of his earnings in tax-free health insurance outside of his paystub, with all other earnings reported on his paystub. It is all payment to the employee from the viewpoint of the employer.

    An employee with low productivity can’t afford expensive health insurance, and this is true regardless of who writes the check, he or his employer. If we force employers to provide more insurance, there are two possible outcomes: The employee’s cash wage goes down; or the employee is fired or not hired. If enough employees must be fired, then the company goes out of business.

    People are already personally paying for their “employer-paid” insurance. They don’t buy it directly so (1) it doesn’t attach to them when they change jobs, (2) and they can’t shop for the insurance they might want. The employer writes the check with part of the money earned by the employee.

    Untangle the tax mess, remove employers from the middle, and salaries would go up in the amount of the “free” health care benefit through employers. Then most people would have enough take-home pay to buy their own health insurance. Doctor’s and insurance companies would compete for their business, pressing prices down. That is what health care reform should be about, along with removing anti-competitive rules and interest group mandates from the insurance market.

    Under ObamaCare, large employers will pay a penalty/tax of about $2,000 per employee for each employee not offered health insurance by the employer. It is a tax on the employee. The employee will then have to find health insurance from the exchanges, one size fits all, one large cost for all, with no implied tax deduction. Cash salaries will go up in the amount of (current insurance costs – $2,000), but may not be enough to buy ObamaCare insurance at the higher rates and after-tax.

    • I really doubt salaries would go up if employer-provided insurance was suddenly not a factor. If they did, I have to imagine that shareholder suits would quickly intervene.

  7. Long Time E.D. Doc

    I predicted the Supreme Court outcome as wrong as Dr. Whitecoat. That being said, it is fairly clear that while most docs are not in favor of the of the where we ended up, my myself included.

    However, since nobody currently knows how this is going to finally shake out, it is worth noting one political “team” is way too happy about this, while the other “team” is way too pissed off. Both far more than the facts might allow for at this point.

    At least it’s consistent where the U.S. ranks world wide in health care…

  8. WhiteCoat is correct about the Raleigh, NC. Area.
    The new Medicare patient had better be part of a part B and part D private PPO type insurance plan or they are just shit out of luck.

  9. I am so depressed, angry and even scared about this decision and final outcome. I know to keep the faith this will all work out for goof in the end …. but, what will we have to go through to get to the good?

    I still can’t get past Nancy Pelosi (I know my mantra by now), stating that they didn’t read the bill and they have to pass it to know what is in it. This monstrosity of a bill that I just heard today has recently had THIRTEEN THOUSAND MORE pages added in to it!

    And I do not understand when anyone of reasonable intelligence/common sense has only to look to Europe to see how this ends up …would still send us full speed ahead to that broken track leading us over the cliff to certain devastation to our quality health care as we have known it.

    It just is not right that the scenario you describe is the likely outcome if this is not stopped. Most people have decent insurance. The baby boomer is coming of age. They thought they’d have quality insurance since they worked and paid into it all their lives.

    So basically …if you are rich …you will keep your quality healthcare because you will be able to afford it. How ironic given Obama’s position on the rich …which is so disingenuous. Do as I say – don’t do as I do. And I am not one to envy or want to take money from successful people who’ve worked hard for their money – not at all. I just can’t help but to see the disparity here.

    And why couldn’t they at least just try opening up the free market and let people cross state lines to get insurance. What if? What if that actually worked to lower premiums and provide a better quality of insurance for both the patient and providers? What if?

    And our 23 yr old son has benefited because he is still on our plan. But that short term gain is not worth the cost to all of us in the future and perhaps not too far off future.

    I believe we need to help the uninsured. We also need to eradicate fraud so that only the people who truly need the insurance are covered. Surely …there is a better way than going against the will of the people when they shoved this down our throats. How can they not see the harm it is doing to patients and physicians? How can they not see the logic …or learn the lessons from other countries? All the IRS agents hired …all the pork in the bill to pay off politicians so they would vote …when that pork has nothing to do with healthcare, etc. What if they took that money and applied it to fixing one of the problems with health care?

    And it makes me just crazy that they say they are helping medicare patients – put that lie out there ..when in reality they are losing benefits and even their doctors.

    I just hope more people really pay attention. I am concerned that most of the population only hears soundbites that fit their political values and won’t take the time to do their own research. Then there is that commercial that shows patients finally getting the care they need thanks to the bill and urges people to go to the government site. I haven’t gotten myself to look at it yet ..but will at some point.

  10. This may not be a perfect solution, but at least it’s an attempt to get some progress made. The system is so damn broke that there is no real quick fix out there, so frankly I am pleased to see any attempts made to fix it, even if it’s not the perfect solution. Hopefully over the next decade or so they will take the parts of this reform that work, and change or improve the parts that don’t.

  11. When republicans defeated Hillary’s health care bill in the 90s …they also dropped the ball and didn’t accomplish anything. I have to say …I am so discouraged with politicians and believe we need people elected that do not care about reelection, but will work for the good of the country – not political gain. I think we are ripe for another party rising up because it seems both dems and reps have not done what they could have.

    They did try to get state boarders opened up for free market but noooo ..they wanted this massive overhaul that they don’t even know what is in it except for their popular talking points that tickle the ears of people looking for free and/or insurance – but they don’t know the long term consequences of it.

    Who the heck doesn’t know what the terms of a contract and it’s effects before signing it???? pelosi’s comment about that was an eye opener and why people rose up in the 2010 elections.

    I just take issue with this massive overhaul ..that economists state will not be able to stay afloat without *massive taxes* …and still the quality and availability of care will be compromised. The *short term* gains are not worth the negative fallout that will come to *all of us – except the rich* in time… and not that long. And why is the UK backing away from their health care system now? My husband informed me that now veterans will be paying more for their benefits. I can still see the president’s smiling face (answering the reps who stated we will not be able to keep our doctors), reassuring us that we will not lose our doctors and now we know that is already happening for people that can’t afford their already increasing premiums. That is just devastating when you have a physician you trust and knows your case inside out and or med history inside out, and you’ve bonded with etc. It was a LIE. No taxes. A LIE. Won’t hurt people earning under 250,000.00 – LIE. Won’t increase pork. LIE. Won’t compromise medicare benefits. LIE. ….

    I just don’t get it – I really don’t. If a ship is springing leaks …why in the world would someone drop a ticking bomb right in the center of it instead of plugging up the leaks to keep it from completely going under. And *the only one with life preservers are the *rich who will have choices and quality care.

    Again …I believe in working hard, applaud success, and believe individuals have a right to keep what is rightfully theirs. I hate class warfare and while I believe we need social programs and SHOULD help truly less fortunate (not the scammers), it is wrong to penalize working society and decrease incentive to succeed, etc. I say this as someone who was middle class now in lower middle class and I don’t want handouts. Just a *JOB* and an opportunity for more success. And I would like to keep the health insurance my husband has worked hard for and we USE and paid into all these years, especially since he is now looking to retire.

    WTH happened in this country these last few years – seriously?!

    • Long Time ED doc

      Greg Henry is fond of saying that until control is taken in a dispassionate way of what health care is worth paying for, any health care bill, good bad or otherwise, won’t work. It’s re-arranging the deck chairs on the Titanic.

      As long as we keep spending our nation’s increasingly limited “riches” on futile end-of life care in mass quantities, no solutions exist. At one point there was a glimmer of hope that a bi-partisan commision slowly moving toward a moment of discussion of this topic. A certain kinda hot but very stupid female VP candidate started screaming about death panels and the cowards we call our elected officials from both parties ran as far from the topic of end of life issues as they could.

      It is unfortunate that it will probably take the train running fully off the tracks before meaningful action will be taken. Thank god we now have a health care bill to assist with that. It certainly is not a fix, whatever anyone thinks of it. Hoping all Emergency physicians will keep edging their way back into public discussion of this topic. “Stewardship” is the apt word I have heard Dr. Henry use on numerous occasions.

      I don’t believe anyone truly knows how the final chapters of the new health care bill will sort out but there is one thing I am fairly certain of:

      Democrats: Way too happy they “won” this one.
      Republicans: Way too unhappy they “lost.”

      • I recall Chris Matthews stating, “We need both wings to fly the eagle.” I’ve quoted that often and believe it to be true. But …we get gridlock. Politicians interested in their personal gain over the good of the people/country they were elected to work for. I understand to a point …but ..it’s out of control.

        I just wonder why we could not have at least tried to see if opening up free market for people and providers to purchase insurance across state borders would help. What if it worked? What if insurance companies decided to offer better quality of care with more competitive rates to attract clients?

        And There are some good things in the bill. It’s not just about premiums. And the pork filling the bill. It should be a bill that is passed strictly based on health care without any added cost to appease some politician’s constituents.

        It’s actually overwhelming to process.

        I wish I had read “It is Okay to Die” before the night my mom was dying in the ED. I felt so powerless to make the decision I knew I should’ve made. Fortunately, God made it for me. Although ..I had the head knowledge …my heart was winning …even though I also knew that at a certain point, it is more compassionate to let your loved one go. The most difficult night of my life.

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