If Obamacare Squeaks by This Time…

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In an obvious attempt to appeal to Justice Kennedy’s focus on individual liberty, Solicitor General Donald Verrilli tried to use a liberty-based justification for the expansion of Medicaid and the individual mandate in his summation during the final day of oral argument:

But if I may just say in conclusion that -I’d like to take half a step back here, that this provision, the Medicaid expansion that we’re talking about this afternoon and the provisions we talked about yesterday, we’ve been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can’t afford insurance.

There is an important connection, a profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that.

That in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.

In making this liberty-based argument to push back against the current constitutional challenge to Obamacare, the Solicitor General unwittingly took the constitutional legs out from under Obamacare’s health rationing scheme.

Obamacare’s Independent Payment Advisory Board (IPAB) and the regulations being churned out by the Department of Health and Human Services are all about top-down, government mandated health care rationing. IPAB, made up of unelected, unaccountable “experts,” has the authority to recommend proposals to limit Medicare spending growth by specified amounts, with the first set of recommendations due in 2014 for implementation in 2015. If the Board fails to submit a proposal, the Secretary of the Department of Health and Human Services is required to develop a detailed proposal to achieve the required level of Medicare savings.

The only way to overrule what IPAB decides is appropriate health care for senior patients is for Congress to override its rulings by a super-majority (three-fifths) vote. If Congress does so, it must come up with its own specific recommendations.

Doctors and each of their senior patients will no longer be making health decisions in the best interests of each individual patient. Instead, the government- IPAB or Congress directly, with implementation by the Secretary of the Department of Health and Human Services – will allocate health care resources towards the needs that the government decides are most worthy from a “general welfare,” top down cost-benefit perspective. Say goodbye to a senior person’s autonomy to make the most intimate and personal choice that person will ever make in his or her lifetime, involving health care that could literally make the difference between life and death. A decision by the government to withdraw funding for a treatment that could save a person’s life, or unshackle that person from the debilitating effects of serious, chronic diseases, will deny that person the “opportunity to enjoy the blessings of liberty.”

This is not a doomsday scenario. Kathleen Sebelius, U.S. Secretary of Health and Human Services, admitted the potentially dire consequences of Obamacare’s government-directed health care allocation decisions during her testimony before the health subcommittee of the House Energy and Commerce Committee last year. She conceded that if Congress approved the IPAB bureaucracy’s recommendation for Medicare to reduce its reimbursement payments to seniors for dialysis procedures, for example, seniors may well be left unable to receive this life-saving treatment.

Rep. Joe Pitts (R-Pennsylvania) asked Sebelius to consider a hypothetical scenario in which IPAB made recommendations that Medicare reduce its reimbursement payments for dialysis procedures. Pitts inquired if seniors would be affected by reduced access to dialysis services. Here is the exchange that followed:

Sebilius:   “If Congress accepted the recommendations and made the decision that cuts in dialysis were appropriate, I assume there could be some providers who would decide that would not be a service they would any longer deliver, the same way they do with insurance providers each and every day.”

Pitt: “Would that mean some seniors have to wait longer for dialysis?”

Sebilius:  “Mr. Chairman, as you know, any cut in services, certainly cost shifting to beneficiaries, could mean huge reductions in care that seniors would have the opportunity to receive.”

The Left should not get too cocky if the individual mandate survives the current constitutional challenge to Obamacare. A challenge to Obamacare’s government-directed health care rationing scheme will be next, based in part on the path laid out by the Left’s much heralded case, Roe v. Wade.

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  • davarino

    The Ice Queen Sebilius shows her disregard for human life with her comment about dialysis. All of them are like this, they dont care. Why dont they care? Can anyone answer my question? You know they are some day going to be in the same predicament, and yet they dont care. Why? Because these EVIL, TWISTED, COLD HEARTED, VAMPIRES arent going to be living by the same rules we lower life forms have to. They will get all the best care, no expenses spared, because they are the ruling class, the proletariat. Even the ones that are uninsured now will get the bandaide and an aspirin for their ailments. I am sure something much better would have been proposed if EVERYONE, proletariat and us schmucks, had to abide by the same rules. But allowing some to be exempt from this evil law is no law at all.


    • rightleaningcat

      You have summed up exactly what I believe to be true. The connected and wealthy won't feel a thing because they won't have to participate and the poor will be subsidized. It's so easy to dictate to others what you are not required to be a part of.

  • jacob

    The Emperor doesn't realize how naked he is, in spite of his sycophants singing his accomplishments
    Now he decided to take on no less than he Supreme Court but this time it gives me the feeling that he
    bit off more than what he can chew and we can only wait foir him to backpedal full speed like all the
    times he has gotten the HOOF IN MOUTH disease as he did with the Cambridge, Mass. police…..

    Will the morons seduced by his mermaid song of "CHANGE" wake up this time and make him the
    THANK GOD deserving one time President and start cleaning out the sewer his "Administration is ???

  • Zundfolge

    If the Supreme Court legitimizes the individual mandate in Obamacare, America (at least as the Constitutional Republic we've all come to know and love) is over. Period.

    The precedent once set will be impossible to remove without a constitutional convention run solely by folk that think like our founding fathers (so absolutely 110% impossible).

  • Jaladhi

    I think Obamacare and it's individual mandate is toast now specially after President tried to intimidate the supreme court. It's all history now!!! No self respecting justice will uphold the mandate. I wouldn't be surprised if it loses by a vote of 7-2 and not just by 5-4.

  • mrbean

    The women's vote for Obama is driven by their illusion that he cares more about my kids than my conservative husband and their Kim Kardasian "Mandingo" sexual fantasies syndrome. Obama's base is free-loading tribalist blacks, left wing academics and the liberal MSM, government employees and unions, illegal aliens, convicts, and the dead, BUT…. it is the American soccer moms and single liberal women who may put this clown in office fo a second term. And…. you thought it couldn't het any worse!

  • tagalog

    I don't get it; how is overturning a law by the Supreme Court replacing a legislative act with a law made by the court? If the Supreme Court overturns Obamacare, won't the result be that we don't have Obamacare and we return to the former status quo in the health care market, not that Obamacare will be replaced by some other law? Or am I being naive?

    • Jim_C

      You are correct at least in the short term. I think one way or another coverage HAS to be universal and mandatory. But it needn't be "government run;" and its really the fault of congress and the guys who take them golfing that we can't figure that out.


    Another constitutional challenge I'd like to see would be to the waivers for Obama's friends and supporters. The President does not have the authority to exempt certain favored citizens from the requirements of Obamacare or any other law. If many of the gullible simpletons who vote Democratic were forced to feel the first few stings of Obamacare (such as losing their employer-provided coverage) now instead of in 2013-14 as the Democrats so cynically intended, they might turn against the Democrats and the 2012 election could be as bad for Democrats (meaning as good for America) as the 2010 election was.

  • Schlomotion

    The individual mandate IS unconstitutional, and is an affront to personal liberty. But is it an idea of "the Left?" No. It is an idea put forth by groups that are both on "the Left" and on "the Right" as they have so named themselves. Consider the History of the Individual Health Insurance Mandate:

    • Sage on the Stage

      But it's instructive that the Left has thrust the PPACA on us in its present form: 1-The PPACA is a job killer. It eliminates the tax deduction for employee prescription drug benefits. Companies can no longer take tax write offs for this expense; thus they fire people. 2-PPACA is a poison pill for Doctor-owned hospitals; as there are many regulations in the bill that prevent Doctor-owned hospitals from expanding. 3-There is a real estate transfer tax in the PPACA, of 4% of the value of the home. It goes without saying that a REAL ESTATE tax doesn't belong in a HEALTH CARE bill. 4-Scientologists, Screen Actors Guild members, Amish, are exempt. Why should Americans pay for the health care of those who are exempt? And last, but not least, 9 million Americans would still be without health care, under the PPACA. WHO needs this nonsense?!

      • Schlomotion

        I agree.

      • Jim_C

        Fine, you indict the Left–but what has the Right EVER done in terms of health care in this country except stand in the way of anyone trying to reform this unsustainable system? The notable exception being Nixon, who proposed something similar to Obama, only to have democrats stymie it because they weren't getting the whole enchilada. We've known at least since Nixon's time, and probably before, that this current system couldn't be sustained. Aside from some weak points about tort reform, what has the Right done?

  • http://americanpatriotcouncil.com/ Mike in VA

    I believe there is a legitimate 5th Amendment case (unconstitutional taking) to be made against the ObamaCare individual mandate. However, it would be far better if the SCOTUS did its job and overturned this unconstitutional mandate before 2015.

  • elmysterio

    The "individual mandate provision " is a travesty, as is most of the rest of the legislation. It's a far cry from what's really needed. There's no question that the state of health care in the united states is completely lousy. Considering the US spends more per capita on "health care" with far less favourable outcomes than other industrialized nations, something significant needs to be done.

    Now something that I truly don't understand is why are the American people (in general) opposed to a Universal Healthcare system similar to the ones in every other industrialized nation? I really don't get it.

    • Jim_C

      I could not agree more. It is not simply a choice between the unsustainable system we have now and some government-run soviet nightmare. Profit and choice can be integral–but the system HAS to be universal.

      Part of the problem is that some groups stand to lose some money if we move away from the system we have now, and they've spent a lot of money to either defeat or else "frankenstein" this legislation.

  • Flowerknife_us

    The good slaves will recieve care.

  • pyeatte

    There will be a special place in hell for people that withhold critical care like dialysis, with no appeal.