Health care law

09/23/15

Authority on Affordable Care Act urges more expanded access

BLUFFTON, Ohio—While the Constitution doesn’t guarantee a right to health care, “neither has it, by and large, stood in the way” while Congress has “slowly recognized a responsibility to ensure relatively universal access” to care, according to a law professor and authority on the Affordable Care Act (ACA).

A right to care “is not yet fully realized,” but the vast majority of Americans now have access to federally subsidized coverage via President Obama’s health care law, said Dr. Timothy Jost, who spoke Sept. 22 at Bluffton University.

A professor in the Washington and Lee University School of Law, Jost expressed hope that access will continue to expand, “and that someday, no American will be denied access to health care simply because he or she cannot afford it.”

His presentation was Bluffton’s Constitution Day Forum. All educational institutions that receive federal funds are required to offer an instructional program each year on or near Sept. 17, the day the Constitution was signed in 1787.

The Constitution’s framers “were brilliant men, and left us with a form of government that still functions after a fashion,” said Jost, also an author who has testified before Congress on health care. “I am not sure, however, to what extent we should be bound by their understanding of the world 228 years later.”

“I can say with some confidence that the framers would not have understood the ACA, and they would not have understood the issues it addresses,” he added, noting that he has studied and written about the law for much of the last five years.

The federal government, he said, “is a very different creature” than what existed when the Constitution was ratified. “The problems facing the country have changed dramatically, and the government has changed to meet them.”

In terms of health care, the government’s power to regulate insurance under the Constitution’s Commerce Clause “has long been recognized by the courts,” Jost pointed out. “No court has accepted a challenge to the Affordable Care Act provisions that regulate insurance.

In addition, “a number of courts have rejected challenges to the (ACA) provisions that require employers to offer coverage to their employees or pay a tax,” he continued. And in the 2012 Supreme Court decision confirming the constitutionality of the law, its individual mandate was upheld as a lawful tax. Last year, he said, 7.5 million Americans paid the tax for not having purchased insurance when they could afford it and were not otherwise insured or exempt.

Jost also noted that the federal government’s powers to tax and spend for the general welfare “have been recognized to be very broad” for at least the last 80 years. “They certainly encompass providing health coverage to Americans, as happens under the Medicare program,” he asserted.

Those powers “also include making conditional grants to the states, which must comply with the terms of those programs under the Supremacy Clause” of the Constitution, he continued. The Supreme Court imposed a limit on that authority in the 2012 ACA decision, ruling that Congress can’t coerce a state to take on a new program—in this case, a Medicaid expansion—by threatening it with loss of funding for an existing program, “at least if the existing program is as important to state financing as Medicaid,” he explained.

But “the Medicaid expansion situation was really unique,” Jost maintained, “and it is unlikely that this doctrine will be applied again anytime soon, if ever.”

About 20 states have not expanded Medicaid, “leaving about 4 million of the poorest Americans remaining uncovered,” he added. “In terms of the lives and well-being of Americans, I would guess this is the most consequential Supreme Court decision in history. Many people have died, and will die, as a result of this decision.”

He predicted, too, that the court will weigh in again this year on another challenge—ACA regulatory actions seen as substantially burdening religious liberties.

As it happens, religion has been at the core of Jost’s work with health law and policy for the last 40 years. His “primary motivation,” he said, “has been a belief that it is the will of God and the measure of a country’s greatness that a society care for its poor.”

He quoted, in Deuteronomy 15, the passage in which the Israelites are commanded to be “openhanded” toward the poor and needy. “I am not sure what the limits of this command are,” said Jost, who attends Community Mennonite Church in Harrisonburg, Va. “But I do believe that it is addressed to nations as well as individuals, and that whatever else it may include, it does include a command to provide basic access to health care.”

-B-

Dr. Timothy Jost
The primary motivation of my work with health law and policy over the past 40 years has been a belief that it is the will of God and the measure of a country’s greatness that a society care for its poor,” Jost said.
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