Following the Supreme Court's review of the Patient's Affordable Health Care Act, complete with myopic and juvenile comments about broccoli and burial plots, I wondered in what world the justices live.
'Obamacare' is designed to close the health care gap that leaves 50 million people without insurance, forcing them into local emergency rooms, the most costly medical option that imposes a hidden $1,000 annual fee or a mandate on those with insurance to pick up the bill.
The choice is not between mandate or no mandate; it's a choice between a law which requires everyone to be responsible or the status quo, which levies a de facto mandate on every medical bill the insured pay.
The judges ignored the fact that if the law is declared unconstitutional, 50,000 children with pre-existing conditions and 2.5 million young people currently on their parent's health care plan will lose coverage.
Seniors will lose the protection of a gradually closing 'donut hole' for meds. Most significantly the 30 million who would have been covered by 2014 will be denied coverage in a system which gobbles up 16 percent of our gross domestic product.
Maybe, like Rip Van Winkle, we'll wake up in late June with the Supremes admitting it was an April Fools joke.
If, on the other hand, the Court declares Obamacare unconstitutional it will complete a triple play of cases begun with Bush v. Gore and Citizens United, enabling the Court conservatives to complete a judicial coup d'état.
Activist GOP judges, with their brethren in the Congress, are pursuing an ideological and partisan scheme to deny millions of Americans health care.
Martin Luther King Jr., in his Letter from Birmingham Jail, said, "an unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust…'
MLK concluded that "all segregation statutes are unjust because segregation distorts the soul and damages the personality..." Millions of Americans with no health care insurance face a de facto form of segregation.
When Justice Kennedy, the so-called swing vote on the court, commented that 'freedom is the freedom not to rescue…' and 'the reason [the individual mandate] is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don't have the duty to rescue someone if that person is in danger… absent some relation between you..." - whatever that means!
If Justice Kennedy is right, then explain to me the actions of the first responders during 9/11.
Were our brave heroes "unfree"? Or were they giving evidence that there is a higher law than Kennedy's morally withered version of torts? Kennedy's response that there is some "severe moral criticism of that rule" is an understatement.
In the battle for civil rights the debate gradually moved from laws on the books (de jure discrimination) to institutional racism (de facto discrimination). The health care debate is on that same moral trajectory.
Are we OK with a health care system which by actuarial practice creates a form of de facto discrimination while at the same time passing costs off to the insured to cover the uninsured in a hidden tax or mandate?
Justice Kennedy claims the law has nothing to do with moral or the higher law, just torts: acts that cause harm, usually economic harm. In effect, Kennedy has reduced the law to matters of property rights not human rights.
Kennedy's view could be the basis of an assault on the progress since the Brown v. Board decision in 1954, the passage of the 1964-65 Civil Right Acts, plus laws which protect those with disabilities and gays from discrimination.
The passage of Obamacare must be viewed in the context of health care disparities that pit the haves v. the have-nots in our nation. The goal of universal health care is the civil rights issue of this generation.
If neo-con judicial activists on the Court, using a bogus originalist theory of the law, win this battle by a 5-4 vote, then what else is on their agenda? I think we know: Roe v. Wade and immigration reforms, like the Dream Act.
If Obamacare is struck down, there is only one solution for liberals: Advocate constitutional amendments to end lifetime tenure of federal judges and subject them to reappointment by the U.S. Senate every 10 years. It's time the left took the gloves off against rogue justices.
- Russ Dondero is Professor Emeritus, Department of Politics and Government, Pacific University. Read his blogs at russdondero.squarespace.com.