Despite significant negative signals, the final outcome of this week's arguments over the Affordable Care Act will remain unknown until the Supreme Court issues a ruling in June. What is painfully obvious today, however, should have been clear enough long before any of the lawyers opened their mouths. The five Republican justices represent an ideological bloc as adamantly hostile to universal health care—no matter the cost in lost lives or squandered trillions—as in 1965, when Medicare passed.
If the high court voids the law's insurance mandate (once promoted by the same politicians and policymakers who now scorn it), we know how tea party Republicans would cope with the financial problem posed by ill and injured people who show up at hospitals without coverage. They told us last fall during the presidential debate in Tampa, Fla., when they cheered for, "Let him die!"
Neither the Republican justices nor the lawyers challenging the law were nearly so crude in court. Indeed, Michael Carvin, the eminent attorney representing the National Federation of Independent Business, specifically rejected the notion that overturning health reform could result in denying care to the uninsured, during a crucial exchange with Justice Sonia Sotomayor.
"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," asked Sotomayor, "... do you think there's a large percentage of the American population that would stand for the death of that child—(who) had an allergic reaction and a simple shot would have saved the child?"
In his response, Carvin scolded, "One of the more pernicious, misleading impressions that the government has made is that we are somehow advocating that people be—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."
But the alternative proposed by him and Paul Clements, the attorney for the states challenging the law, was astonishingly absurd (much like their repeated claim that the health "market" is like the market for any other commodity and should be treated as such). The problem of the uninsured receiving uncompensated care paid for by everyone else could be eliminated, they argued, by requiring them to buy insurance when they need it—that is, when they show up at the hospital.
How many needless, cruel deaths such an alternative might cause is something we may yet learn if the court majority accepts the plaintiffs' callous position. Serious illness or injury doesn't magically make insurance affordable to families that could not afford it before—and only someone prepared to let people suffer would pretend that it does.
If the Affordable Care Act is voided, and Americans must start over again on a project completed decades ago in all the other advanced industrial nations, then perhaps we should look forward in the direction indicated by Carvin himself, a leading member of the right-wing Federalist Society.
"I want to understand the choices you're saying Congress has (under the Constitution)," inquired Sotomayor. "Congress can tax everybody and set up a public health system."
"Yes," replied Carvin. "I would accept that." In fact, he probably wouldn't—and certainly the Republicans wouldn't without losing an enormous struggle first—but at least now their chosen advocate is on the record suggesting that "Medicare for All" would pass constitutional standards. And considering how popular Medicare remains, even among many elderly voters who identify with the tea party, that might be the right place to begin again.