I’m just back from a terrific symposium on the right to health care at Boston University School of Law that was sponsored by the American Journal of Law & Medicine and chaired by Abby Moncrieff. Presentations by constitutional, health care and tax law scholars brought a very nice range of perspectives to the Affordable Care Act (ACA). The conference papers will appear in the AJLM in late spring; I’ll say a little now about mine, which builds on an earlier article in JAMA.
I’ve previously defended the commerce clause and taxing power justifications for the individual mandate to purchase health care coverage. But the chief threats to the rights in ACA lie not in any constitutional infirmities. Rather, they rest in defects of design. Even if the Supreme Court upholds the law, its basic protections may unravel in the future. As other public benefit programs have shown, it's difficult to sustain programs that serve only the poor. Universal programs like Medicare and Social Security fare much better than targeted programs like Medicaid, and ACA's access-to-coverage provisions are mostly aimed at the poor and near poor. If past is prologue, we need to worry whether the financially secure will support adequate funding for the coverage expansions over time.
A Medicare-for-all, single-payer reform would provide greater stability, but we know about the political obstacles to that path. A modified version of John McCain's 2008 health care reform proposal might be both effective and politically feasible.