And thus ends one of the most contentious legal arguments in recent times, settled by Chief Justice, John Roberts and four liberal members of the Supreme Court: ObamaCare is constitutional, because the personal mandate is a tax. It is not a penalty. It is a tax.
I’ve been asked by several patients who have not been following this issue closely to try to make this Supreme Court’s decision more understandable. I will therefore give you my perspective, from a doctor’s point of view. My purpose is not to write a stealth political hit piece, amplifying my own political views. Given that I do not accept Medicare, private insurance of Medicaid, it will not surprise anyone to learn that ObamaCare is not my cup of tea. However, instead of foisting my own beliefs upon you, I would like to focus on what this law will mean to the cost and delivery of medical care; i.e. how it will affect patients and tax payers.
The Challenge to the ObamaCare Individual Mandate: The president himself, along with leaders of Congress, argued vociferously that the individual mandate, requiring people to buy insurance or pay a penalty, was not a tax. Instead, they explained, if people refused to buy health insurance under this law, they would have to pay a “penalty,” which would be collected by the IRS. The reason the administration called the mandate a “penalty” and not a “tax,” is that Mr. Obama had promised not to raise taxes on anyone making less than $250,000 a year.
Congress and the White House knew that levying a tax on citizens to pay for ObamaCare would never attract the necessary votes for passage, even if no Republicans voted for the bill. An analysis by the Wall Street Journal has estimated that 75% of this new “tax” imposed by ObamaCare will be borne by those making less than $120,000 per year. So you can now see the politics behind choosing the word “penalty” over the word “tax.” As a tax, ObamaCare amounts to a very large tax on the middle class.
Interestingly, Congress always had the constitutional authority to pass healthcare reform, using their taxing authority. There is nothing in the Constitution that prevents Congress from implementing ObamaCare per se. The issue was whether Congress could force people to buy a product, using the Commerce Clause as justification, and charge them a penalty if they did not.
Challengers to the law, from 26 states, argued that it was unconstitutional to use the Commerce Clause to force individuals to purchase health insurance. To do so would be a profound stretch of the Commerce Clause, which would allow the federal government to force individuals to purchase any product it deemed necessary for “the common good.” The Supreme Court agreed with this argument, stating that to use the Commerce Clause in this manner was unconstitutional. However, the Chief Justice of the Supreme Court found a way to salvage this legislation, in a way that no one ever expected – on either side of the political aisle. John Roberts ultimately argued that though the individual mandate under the Commerce Clause was spelled-out as a “penalty” in the bill, and even though Mr. Obama had argued publicly that it was not a tax, the mandate really was a tax. And so ObamaCare stands, as a tax, which is constitutional under the taxing authority of Congress. Like it or hate it, agree or disagree, this is where we stand.
Beyond the Politics: The purported goals of healthcare reform were twofold: First, to provide uninsured patients with access to doctors and second, to reduce the rising costs of medical care. Insurance is nothing more than a method of payment for medical care. However, insurance is not healthcare. What the Congress has done with ObamaCare is to create “insurance reform.” It is not true healthcare reform, because there is no evidence that this bill will result in better medical care for the insured. There is also clear evidence that the bill has already resulted in increased insurance premiums.
The Primary-Care Doctor Shortage: Even for those who support ObamaCare, this law does nothing to address the critical shortage of primary care doctors in the U.S. Put simply, there aren’t enough available doctors to take care of the 30-million individuals who will suddenly have health insurance under ObamaCare. Even if all of these people were given Blue Cross Blue Shield insurance, there would not be enough doctors to take care of them. This is the fatal flaw of ObamaCare (and of RomneyCare, which I will address later). The uninsured will not have greater access to doctors, because there are not enough doctors available. The law amounts to a train ticket, for which there are no available seats on the train.
However, the problem will be even worse; because of the kind of insurance that will be provided for the uninsured will be in the form of Medicaid. It will not be BCBS insurance, which doctors can afford to accept. Many of the people who will suddenly find themselves insured will become Medicaid recipients. Very few doctors in the U.S. accept Medicaid (or what is AHCCCS in Arizona).
Over my 20 years of medical practice in Tucson, I have known only one primary doctor who accepted AHCCCS. He is no longer practicing medicine. He had one of those red plastic number dispensers in his waiting room, like you see at a delicatessen. People would come in, pick a number and wait hours to see him.
Today, I don’t know a single primary care doctor who accepts Medicaid as payment in Tucson, Arizona. The reason is simple: A doctor cannot afford to pay his/her overhead with Medicare reimbursement, much less with Medicaid fees. So though millions of Americans will suddenly find themselves with a shiny new Medicaid card, they will not be able to find a doctor willing to treat them. Those doctors they do find are not likely to be the sharpest tools in the shed.
Physician Extenders: Without enough doctors, who will see all of these newly insured Medicaid patients? As a way to fill the void, the writers of the ObamaCare legislation have introduced provisions to increase the use of nurse practitioners and physician assistants. For common problems, like ear infections and colds, this strategy will work fine. However, for more serious problems, some of which will go unrecognized by those with less training, there will be complications and even deaths. Having supervised nurse-practitioners and physician assistants myself, I can tell you that they make more mistakes than doctors make. This should not be surprising. Regardless of their good intentions, they have only a fraction of the training of a physician. Under this law, their level of training and expertise will not increase, but their level or responsibility will increase – dramatically. They will become de facto doctors, without the training of a doctor.
A Two-Tiered Medical System; Enter RomneyCare: For the well-intentioned supporters of ObamaCare, who are sincerely concerned about those in our society who do not have access to good medical care, this law will only accentuate the differences of the two-tiered system we already have. With an inadequate supply of Medicaid doctors to see these patients in the office, more patients will flock to the ERs for their care. They will do so because they will now have a Medicaid card, which will cover the costs of the ER visit. This is precisely what has happened with the implementation of RomneyCare in Massachusetts. ER visits under RomneyCare have increased, not decreased. There simply are not enough primary care physicians in Massachusetts to absorb all of the new patients who suddenly became insured on that state’s new program.
In addition, insurance costs have gone up under RomneyCare, making the plan a failure on the second goal of healthcare reform. Massachusetts not only has the longest wait in the nation to see a new primary care doctor, they now have the highest healthcare costs in the nation. This is why you don’t see Mr. Romney campaigning on the success of RomneyCare. It is an embarrassment that he must explain, as opposed to a record to run on. By any objective analysis, RomneyCare is more expensive than what preceded it and it does not provide good care to the poor.
Summary: So we now have a 3,000-page healthcare bill, which no politician ever read before voting for it, which requires citizens to purchase health insurance or pay a tax. Under the taxing authority of Congress, it has been deemed constitutional by the Supreme Court. This 3,000 page bill will results in yet thousands of more pages of regulations, which will be written by the Department of Health and Human Services. The size of the regulatory handbook for ObamaCare will soon rival the size of our current tax code.
ObamaCare was largely fashioned after a failed experiment in Massachusetts, called RomneyCare. Under RomneyCare, healthcare costs have increased and patients have an even longer wait to see a new primary care doctor. Expensive ER visits in Massachusetts have not decreased for the poor; they have increased. Neither ObamaCare nor RomneyCare will improve the quality of healthcare for the uninsured, nor will they reduce the costs of healthcare.
As a physician who has spent years studying healthcare reform, it is my diagnosis that once you remove the lipstick from ObamaCare and RomneyCare, they are both pigs. Though putting different shades of pink on both laws may create the basis for political talking points, neither law will do what it was intended to do. Healthcare costs will continue to rise, and more importantly, patients will not have increased access to a doctor, since precious few doctors can afford to accept the paltry reimbursement paid by Medicaid. In fact, more and more doctors are now dropping Medicare, which means that seniors will soon find it harder and harder to get the care that they need as well.
The Supreme Court has handed the ball back to the electorate and asked the voters to decide on the future of ObamaCare this November. This is what John Roberts (paraphrased) said in his decision. In the upcoming debates, Mr. Romney will try to avoid talking about RomneyCare, because it has been a failure. Mr. Obama will not attack RomneyCare, because there are no substantive differences between ObamaCare and RomneyCare. Each side will criticize the other over insignificant differences, which will make the electorate even more cynical than we are now, because we will know that each candidate has offered the same bad solution for a problem that cannot be fixed by Washington.