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Red State or Blue State America? What's at Stake Over Healthcare at the Supreme Court

Republican leaders, including those in 11 states with the highest percentage of uninsured residents, don’t want to fix our broken healthcare system.

The Republican Party again showed its petulant, "party-of-no" face on Tuesday as lawyers representing 26 red states and conservative think-tanks told the U.S. Supreme Court that nobody should be forced have health insurance—even if people carrying insurance end up subsidizing the defiantly uninsured who get ill.

“Could you tell me,” Justice Sonia Sotomayor began, in perhaps the most succinct moment capturing this schism, addressing Paul D. Clement, an attorney representing the law’s challengers, “do you think the states could pass this mandate?”

“I represent 26 states,” he replied. “I do think the states could pass this, but I….”

But they won’t. The Republican leadership in his clients’ states, including 11 with the  highest percentage of uninsured residents in America, don’t want to fix a broken healthcare system. Forget that these states are supposedly more religious than liberal America—they are not their brothers’ keepers. It’s everyone fending for themselves: that’s the America they want.

In fact, Clement and a like-minded colleague argued that Congress created the healthcare cost crisis—including driving up everyone’s premiums—when it required emergency rooms to treat everybody regardless of their ability to pay. That’s unacceptable social engineering, he argued, drifting away from narrower constitutional issues.

“There's two kinds of cost shifting that are going on here,” Clement said. “One is the concern about emergency care and that somehow somebody who gets sick is going to shift costs back to other policy areas -- holders. But there's a much bigger cost shifting going on here, and that's the cost shifting that goes on when you force healthy people into an insurance market precisely because they're healthy, precisely because they're not likely to go to the emergency room, precisely because they're not likely to use the insurance they're forced to buy in the healthcare insurance. That creates a huge windfall. It lowers the price of premiums.”

This survival-of-the-fittest, screw-everyone-else line of argument set the tone for most of the second day of hearings on the Affordable Care Act of 2010. The Court’s moderate minority pushed back, but not nearly as forcefully as the conservative majority, which repeatedly said that allowing the coverage mandate to stand might open the door to future congressional orders in some other area of life affecting all citizens, such as requiring people to eat certain foods—such as broccoli—or have a cellphone for emergencies, or even buy burial insurance, since we all die. (Yes, they really used these examples.)

“It's good for you in this case to say, oh, it's just insurance,” Chief Justice John Roberts replied to the government’s lawyer, Solicitor General Donald B. Verrilli, Jr. “But once we say that there is a market and Congress can require people to participate in it, as some would say, or as you would say, that people are already participating in it, it seems to me that we can't say there are limitations on what Congress can do under its commerce power….”

The more liberal jurists did not let these Darwinian arguments go unquestioned. Justice Sotomayor quickly turned on Carvin’s argument that if emergency rooms only took people carrying checkbooks with positive balances that there might not be a crisis.  

Justice Sotomayor: Do you think that there's -- what percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance -- do you think there's a large percentage of the American population who would stand for the death of that child....

Mr. Carvin: One of the more pernicious, misleading impressions that the government has made is that we are somehow advocating that people could get thrown out of emergency rooms, or that this alternative that they've hypothesized is going to be enforced by throwing people out of emergency rooms. 

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