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“Can you create commerce in order to regulate it?”

That was Justice Kennedy’s question yesterday.  And if it seems confusing, that’s because it is.  But that’s also because the issue he is weighing, the fate of Obamacare, is unusually confusing as well.

I’m not a legal scholar. In fact, I have no legal training.  As a result, I can only ignorantly opine on what the Supreme Court will decide with regards to Obamacare, and even more ignorantly on the legal arguments that are being argued by each side.

Personally, however, the use of a mandate to buy private insurance has always felt wrong to me.  Let me clarify that…I see the point and understand the mechanisms of how the law works and realize that in order to lower costs, healthy people have to buy insurance in order to de facto subsidize the costs of unhealthy people.  That’s how insurance works in general. Factor in the idea that even without health insurance, people still need medical care when they get sick or injured, and someone has to pay for it and you can see how this might be a special case.

At the same time, I’m a math and stat geek and part of the calculation (at least for some) of buying health insurance is based on risk factors.  I have had two periods without health insurance, which, of course, coincide with the two periods I wasn’t getting health insurance from an employer.  Once, after college, and now, as I try to start my own business.  I made the calculation that the risk that I would get sick or injured was low enough that it made sense to go without.  I looked into buying catastrophic insurance, since that is what I fear the most, but that’s not available.  And since it’s not available, then I decided to go without.

Now, if I were “mandated” to buy health insurance, that likely would have changed my calculation of whether it was a good idea to leave my job and start my own business.  I took precautions, went to the doctor beforehand to have everything checked before I made my decision, and have tried to engage in less risky activities since (no scooter purchases for instance!).  All of that was to determine whether I could potentially go a year or two or three without insurance and feel comfortable doing so.  Scratch, that, I don’t feel comfortable, but I do feel it necessary.  And to be clear, each time I have been sans health insurance, I’ve gotten into freak accidents that are the only times I’ve had to go to the emergency rooms.  And even still, those expenses were less than if I had paid for health insurance for the duration of those two periods.  That includes the absurd decision by the ER to X-Ray my hand when I said I didn’t need it and their advice that I go to the clinic (which they advise all uninsured people to do) which would have cost me 4x what I had to pay to go to a private doctor for the same service and procedure (this is the definition of a tax on the poor).  But of course you could say that I’m lucky.  And I am…

And you could also say that I’m selfish and privileged for even making a personal argument obviously.  When thinking about larger society, to me, as many other have argued, mandating health insurance is a worthwhile goal…but it also presents a slippery slope down the road.  I get it.  The mandate results in more people being covered, which is a great and necessary thing.  It truly is socially positive.  But what’s to stop the government in the future from declaring that we all need to buy higher education (not that it’s a bad thing, it just may not be for everyone), or oil….if it’s determined to be a net positive for society.  And I understand the argument that everyone needs medical care at some point and lack of insurance raises costs for everyone else who does.  But if that’s the criteria, would the government be allowed to mandate that people buy bikes or ride buses instead of driving cars because to not do so raises social costs for everyone else?

I have no idea what all of this means legally, whether there is precedent that upholds this or not, and whether it truly is unconstitutional.  But, despite the necessity and good intentions, something just doesn’t sit right.  This is especially true since so many people are actually against the mandate, including large swaths of both conservatives, who largely feel it is a breach of freedom, and liberals, who largely feel it enriches private markets.  Many may not fully understand that the mandate is necessary or the entire Obamacare likely falls apart.  But the fact remains that no one likes it.

And the sad part is that there are other ways of achieving universal healthcare that have considerably more support by the public, even if the elected officials and their corporate donors object.  While polls can be unreliable, there are several that suggest that if the US government was responsive to the people that fund it, we would have just such a system (we speak of Single Payer) that has proven to be effective and would solve these issues (and more) without the headache of the Supreme Court and the Constitution…

…but that, on so many levels, of course would be fantasyland.



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