Lawsuits have been filed, conflicting court decisions have been handed down, and ultimately, the Supreme Court will decide whether Obama’s health care reform will be constitutional. The main argument proffered by those against the bill is that the law regulates economic inaction, something that opponents claim Congress does not have the power to do. But is that really the case? Is it possible to opt out of the health care economy in this country? I’m not a lawyer, but I think that the answer to this question can be found in a law passed 25 years ago, one that everybody takes for granted. A law that has done a great deal to put us in the situation we are in today.
The law is the Emergency Medical Treatment and Active Labor Act (EMTALA) of 1986. This law makes it a requirement for hospitals to provide care to those who need it, regardless of ability to pay. Not only that, but even if you are unable to pay for treatment, you are still held liable for its cost. This law, passed under Reagan, was seen as a lot of things: a solution to “patient dumping”, an unfunded mandate, and an invitation for undocumented people to get free medical care, among other things. What this bill was not widely seen as, however, was unconstitutional. Aside from the arguments of some random bloggers, I know of no serious lawsuits or arguments against the constitutionality of the EMTALA.
So what does this have to do with the recent health care bill? Well, plenty. EMTALA pretty much acknowledges that health care is not something that can be denied in this country due to an inability to pay. Not only that, but EMTALA spells out responsibilities on both those who seek care, and the hospitals that provide care: hospitals can’t deny certain care based on inability to pay, and patients are held liable for care that is provided to them. In other words, if even the most rabid anti-health care reform opponent is found unconscious on a street corner, the hospital that receives him has an obligation to provide care, and the patient has to pay for it, even if he or she didn’t consent to it. Thus, theoretically, everybody in the U.S. is a part of the health care market.
Although there is a fair amount of opposition to the health care reform bill, again, there is not any serious opposition to EMTALA. As far as I know, there have been no attempts to repeal it in Congress, and I suspect that the vast majority of people in the U.S. would find such a repeal to be morally repugnant. But that creates a problem: if hospitals are required to give care, and patients are required to pay for it, then how do we ensure that care is reasonably paid for and that the market can function? The most valid critique of EMTALA is that it is an unfunded mandate on hospitals, and that is certainly true: emergency care providers like HCMC routinely write off tens of millions of dollars on provided care that they will not be reimbursed for, leading to higher property taxes and insurance premiums for the rest of us. This funding problem is a huge driver of increased health insurance costs in this country.
Thus, the question becomes, how do we pay for this care in a method that is fair to both the patient and to the hospital? The health care reform bill is an attempt to do that. It’s certainly not perfect, but I don’t see how it can be unconstitutional to regulate health insurance when every person in this country, citizen or not, can at any time become an unwilling party to the health care market. To eliminate this issue, we’d have to repeal EMTALA, and once again leave hospitals to decide whether they will provide care for the indigent or simply turn them away. Only then would we come close to having a health care market that people could seriously opt out of.
I have no idea when the Supreme Court will take up the court case on the constitutionality of the health care bill. When they do, though. I would be very surprised if they didn’t point to the EMTALA as evidence that the health care market truly is universal in the U.S., and therefore subject to Congressional regulation in the name of interstate commerce.