Health Reform and the Letter of the “Court”

June 25, 2015, was a banner day for many reasons. The U.S Supreme Court decision in Burwell v King allowing six million Americans (more than 40,000 in Iowa) to maintain federal subsidies to help pay for individual health insurance premiums that were purchased under the Accountable Care Act (ACA) Federal exchange was uplifting. The decision will allow the ACA to become a permanent part of our lives and our culture. In Iowa, Republican Governor Terry Branstad responded to the decision saying the ACA was “unaffordable” and “unsustainable.” I would respond to his comments here, but Paul Krugman’s commentary in the New York Times published same day as the decision is a far better response than anything I could write.

In concluding his commentary Krugman wrote, “Put all these things together and what you have is a portrait of policy triumph–a law that, despite everything its opponents have done to undermine it, is achieving its goals, costing less than expected, and making the lives of millions of Americans better and more secure. . . And it’s a beautiful thing.”

I have a few thoughts regarding the Court’s decision. First, I am not a lawyer nor am I a constitutional scholar, yet I understand that Justice Roberts used the intent of the ACA to clarify the four words in the “letter of the law” that were ambiguous enough to question the use of subsidies for the people who qualify. Justice Roberts, as one talk show enlightened me, used the same process to clear ambiguity that Justice Scalia used in 2008 in the District of Columbia v Heller decision to determine an individual right to keep and bear arms in the Second Amendment. As Justice Scalia said in that decision: “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arm.” This process to determine meaning out of ambiguity in a court case was not endorsed by Justice Scalia in the Burwell v King decision. Joining Justice Scalia in his dissent were Justices Samuel Alito and Clarence Thomas.

Second, the best professor of my academic career was Dr. Edward Cronin, who taught poetry, plays, and novels in the University of Notre Dame’s General Program of Liberal Studies, also called the Great Books Program. Professor Cronin was a James Joyce scholar and would offer evening discussions on Joyce’s Finnegans Wake, outside the course. He said that great writers write in such a way that every word and every point of pronunciation has an important role in the totality and beauty of the work. Sadly, legislation is not written in the same way.  Major pieces of legislation almost always need technical correction follow-up legislation. The ACA was not allowed this technical correction, due to Republicans’ recalcitrance. Such corrective action would likely have avoided this case being filed and ultimately progressing to the Supreme Court.

Finally, it was recently reported from several credible sources that the ACA now garners more favorable than unfavorable responses in polls of Americans. Like Medicare and Social Security, I look forward to seeing the ACA garner more and more support over time, becoming an equal pillar in our society for the health, peace of mind, and economic well-being of our citizens.

As I reflect on great writing and great writers, I found extraordinary writing and genuine emotion in the other major Supreme Court decision released last week. I tell my medical students that relationships are everything in the practice of Family Medicine. In marriage, couples pledge to stand together “in sickness and in health.”  In that vein, I was touched by what Justice Kennedy wrote about marriage in the Windsor v United States decision: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”