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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