Writer/Social Scientist Jerrold Auerbach once noted that learning the law was the process of learning how to take two things inextricably bound together and thinking about one, without thinking about the other. In Med School he noted, completion of that process is called a Lobotomy... in Law School they award you a degree.
The current Healthcare arguments before the Supreme Court are a great illustration of how we lawyers and Judges often lose the forest in the trees. For no one is mentioning the most foundational issue...
Any cogent analysis of the current healthcare conundrum must, of necessity, include a the question "Is healthcare a fundamental (or any kind of) right?"
It is the answer to that question that precedes the discussion of the legislative authority, or reach, of Congress to address the issue.
One reason that the Supremes are not mentioning this issue is because to simply pose the question opens up a whole new can of worms - i.e. where do rights come from, and can new rights be implanted in the Constitution today?
Let's start with the question is healthcare a right. If it is, then obviously Congress would have wider latitude to address the needs of 40+ million citizens who are currently denied access to same because they have no means to pay for it. If it is not a right, then Congress's reach would be constricted and it would have less authority to broach the issue of unserved citizens.
As matters now stand, both Congress and State Legislatures seem to agree that health care is a right (at least on some level) because they mandate that healthcare providers (at least hospitals) must treat indigent patients, regardless of their ability to pay. If there were no "right" to healthcare, could any governmental entity require a private citizen to expend their own resources on others? No one has declared it a "right" legally speaking, but the national consensus seems to be that it is.
While there is much debate about the founder's original intent, virtually everyone acknowledges that American citizens have accreted rights over our history. We've gone from a constitution that enfranchised only propertied white males to an nation of universal suffrage. The women's movement, the civil rights movement, and others were all about the process of getting the national consensus on "rights" to expand and shift. The right to privacy too is an accreted right, one never specifically delineated in the constitution, but now widely (if not universally) recognized.
But the Court has never articulated a "right" to healthcare... so the arguments now before the court make no mention of the issue.
But logically, if no such right exists, what are we arguing about? If healthcare is an individual luxury, which some can't afford, why should we provide it for them. This is the subtext of the Conservative's argument that the Government has no legal authority to mandate coverage.
So, isn't it time to debate and answer the question up front and (I would propose) simply declare that every citizen has a right to adequate healthcare... and get busy wrestling with the logical consequences of that declaration - and there are many. But a little more honesty and a little less legal maneuvering would go a long way if furthering an honest debate on the issue and reaching a clear and lasting answer.
40+ million souls await our answer!