Another Installment of the War on Broccoli

During an interview on 60 Minutes, Romney was asked if the government had a responsibility to provide healthcare to million Americans who do not have it, and he replied: “We do provide care for people who don’t have insurance. If someone has a heart attack, they don't sit in their apartment and die. We pick them up in an ambulance, and take them to the hospital, and give them care.” When asked in an earlier interview on Morning Joe whether he believed in universal healthcare coverage, Romney said, “Look, it doesn't make a lot of sense for us to have millions and millions of people who have no health insurance and yet who can go to the emergency room and get entirely free care, for which they have no responsibility.” Romney can, of course, explain why his statements are somehow consistent with the Republican platform. Democrats can, of course, use his statements as an illustration of Romney’s lack of a true center, a flip-flopper.

My interest in those statements has to do with the broccoli mandate.

In making those statements, Romney was siding with the liberal judges on the U.S. Supreme Court who were of the opinion that, because uninsured persons must be provided care in hospital emergency rooms, the federal government had jurisdiction under the commerce clause to pass a law with a mandate requiring all people to maintain health insurance. It is not as though Romney was somehow not aware of the connection. He made the logical/legal connection as governor of Massachusetts and called it a personal epiphany: a) uninsured Massachusetts residents received healthcare because federal law requires hospitals to treat people with emergency medical conditions; b) the cost of treating uninsured patients was being paid for by insured patients; and c) insured patients would pay less for care if the cost of caring for the uninsured in emergency rooms was used instead to buy insurance for them so they would get care before acute conditions worsened.

Obviously, Romney was not the first to have such an “epiphany” but he deserves credit for being governor of the first state to translate the epiphany into legislation.

If Romney were somehow insulated from his handlers and able to speak his mind, I believe he would admit that the mandate in the Affordable Care Act was constitutional—under the commerce clause and not solely under congressional taxing authority a la Roberts. His problem with it is not legal; it is political and economic. The political problem is straightforward: it is Obamacare, a hot button that works with a certain constituency. He would have to be absolutely against it even if it worked better than advertised. The economic problem is more complex. I do not believe Romney’s statements that Americans already have a kind of universal healthcare—i.e., the emergency room—constitute some sort of flip-flop. His priorities have simply changed from when he was governor of Massachusetts. His epiphany was economically neutral. The theory was that the government would pay for universal healthcare by reducing the cost of uncompensated care in hospital emergency rooms. The same theory underlies the ACA and is being used to justify dramatic reductions in Medicare and Medicaid. So, what happened to the economic epiphany he had as Governor? Did new thinking prove the theory unsound?

No. Romney has simply embraced a more fundamental economic priority: reducing taxes on wealthy taxpayers. Everything else is secondary—one might even say expendable.

Broccoli and Healthcare Mandates

Nearly two years have passed since the Affordable Care Act was signed into law by President Obama. Since then, you may have noticed a lapse in my updates. This is simply because I had no reason to comment further. Now that the individual mandate is on the verge of being overturned, the time has come for me to comment again.

In a bold use of the persuasive reductio ad absurdum logical tactic, the US Supreme Court seems poised to declare that healthcare is the same as broccoli. Since the Supreme Court does not believe government should have the constitutional right to mandate that people eat broccoli, it follows that the government should not mandate that people buy healthcare insurance.

In Citizens United, the Supreme Court declared that corporations have the same constitutional rights as people. Ozarks Community Hospital is a corporation. Therefore, OCH has the same constitutional rights as a person.

Since OCH is a person, OCH is entitled to the same right as a person to be free from governmental mandates regarding broccoli and healthcare. Therefore, if the Supreme Court rules that the healthcare mandate is unconstitutional, OCH will post signs in its emergency rooms that the Supreme Court has declared that patients have no more right to healthcare than broccoli.

We believe that these signs will be in violation of the governmental law known has EMTALA that requires all hospitals to provide healthcare to all persons regardless of their ability to pay. This law has resulted in the enactment of a number of regulations--one of which would prohibit hospitals from displaying a sign such as the one just described. When OCH is fined by the government for displaying its "no right to broccoli; no right to healthcare" sign (below), OCH will appeal all the way to the Supreme Court where it will assert its constitutional right to be free from mandates regarding broccoli and healthcare. If the government does not have the power to create a system that requires people to be responsible for the cost of healthcare, then the government does not have the power to create a system that requires hospitals to provide healthcare to people who do not pay.

Hospitals are people too.

Quod erat demonstradum.

Paul Taylor, J.D.
CEO
Ozarks Community Hospital