Gurwitz: Health reform is a high stakes case before the Supreme Court

By JONATHAN GURWITZ

New York Times News Service

Starting Monday, the U.S. Supreme Court will hear oral arguments in a historic legal challenge against Obamacare. Twenty-six states have filed suit against the health care law’s constitutionality. The stakes could not be higher.

The Congressional Budget Office’s initial cost estimate for Obamacare was $940 billion over 10 years. But that estimate was based on an illusion created by including expenses for years before the mandate’s full implementation in 2014.

As the 10-year estimates begin to capture more of the actual expenses of Obamacare, the cost estimates are rising rapidly. This month, the CBO raised its 10-year estimate to $1.76 trillion, and that still only captures 9 years of full implementation.

When President Obama rammed his plan through Congress two years ago, he promised it would save families $2,500 in health insurance premiums. But according to the Kaiser Family Foundation and the Health Research and Educational Trust, premiums for family health plans actually rose $1,300 in 2011, a rate of increase three times greater than in 2010.

The president also said repeatedly that people would be able to keep their health care plans. But a survey last year by McKinsey & Co. found that at least 30 percent and perhaps as many as 60 percent of employers will definitely or probably stop offering employer-sponsored insurance after 2014.

There are elements of the health care plan that have broad appeal, such as the assurance that people with preexisting conditions can obtain coverage. This string of broken promises and rising costs goes a long way toward explaining why Obamacare, though never popular, is sinking in the polls. Former House Speaker Nancy Pelosi famously said, “We have to pass the bill so that you can find out what is in it.”

The more people find out, the less they like it. The case that will be argued before the high court, however, has nothing to do with costs, broken promises or popularity. It has to do with a fundamental change in the relationship between the federal government and the individual, between the federal government and private enterprise and private institutions, and between the federal government and the states.

The argument for changing these relationships is that health insurance is a public good. Forcing individuals to buy health insurance and forcing private institutions to pay for types of coverage that violate their conscience serves that good. But if that power can be upheld with regard to health insurance and the provision of contraceptives, it can be applied in a vast array of circumstances that Obamacare supporters would deplore.

Unlike health care, which is a public good, the right to bear arms is an enumerated constitutional right. Imagine that in the interest of public safety and national security, a Republican president and Congress decide that every adult citizen of the United States must possess a firearm or pay a fine.

Not just any peashooter, mind you. To meet the requirements of a well-regulated militia, assume that Americans must own a weapon that meets government-defined requirements for firepower. And beyond mere gun ownership, training confers an even greater public good, so private employers must include in their benefits packages a provision that pays for employees to obtain a concealed handgun license — even if it violates their deeply held convictions.

Sounds preposterous today, doesn’t it? In 2008, so did the idea that, under the guise of the Commerce Clause of the Constitution, individuals would have to buy government-defined health care plans, or Catholic institutions would have to provide coverage for drugs they consider to be abortifacients.

Our health care system is deeply in need of reform. Obamacare is a cure, however, that is far worse than the disease.

Stopping this exercise in constitutional malpractice rests with the Supreme Court.