The NRA knew there would be a horrendous massacre like the one in Newtown that would change public opinion on gun control. They knew this back in 2010 when health reform was being drafted into law. Knowing that one day public opinion would turn on gun control, they used the Affordable Care Act to shield the NRA. They inserted an amendment to the Affordable Care Act titled "Protection of Second Amendment Gun Rights." This amendment literally prohibits health professionals from being able to identify the risk a person like Adam Lanza could be to a community or himself. The NRA amendment shielded Adam Lanza from detection by mental health professionals. Unfortunately, the law did not protect the victims of Adam Lanza. More on the other side.
Back in 2010 when health reform was being vigorously debated, most attention was on things like the public option and death panels. Scant notice was given to Section 2717(c) - Protection of Second Amendment Gun Rights. The concern was that health reform might be used to collect information on who in this country owned guns, which somehow seems to be a violation of the Second Amendment. Here's the key language in Section 2717(c).
‘‘(c) PROTECTION OF SECOND AMENDMENT GUN RIGHTS.To be clear, this is not a minor section of the law with limited force. It is in Title I - Part A that reforms the insurance market by prohibiting things like exclusions based on pre-existing conditions. This is one of the most transformative parts of the ACA. Ironically, the NRA amendment is embedded in the section titled "Ensuring Quality of Care". The preceding subsections deal with Quality Reporting and Wellness and Prevention. Then suddenly appears the section to protect the rights of gun owners - as necessary to ensure quality of care. The related subsections specify that firearm and ammunition data on ownership and storage cannot be collected, nor can databases be developed on this information. Nor can premiums be denied or increased due to gun ownership. Moreover, a discount, rebate, or reward for participation in a wellness program cannot be denied or reduced because a person owns firearms and ammunition.
‘‘(1) WELLNESS AND PREVENTION PROGRAMS.—A wellness
and health promotion activity implemented under subsection
(a)(1)(D) may not require the disclosure or collection of any
information relating to—
‘‘(A) the presence or storage of a lawfully-possessed
firearm or ammunition in the residence or on the property
of an individual; or
‘‘(B) the lawful use, possession, or storage of a firearm
or ammunition by an individual."
In the world of health care, providers and insurers try to identify risks and reduce those risks. They do so by collecting information from a variety of sources about a patient/plan member. For example, they might ask if you take any non-prescription medication (substance abuse). They ask how much wine I drink daily. They look at blood pressure and a host of other metrics to assess risk. When you enter into the realm of mental health assessments, the data is even more critical - are there guns accessible in your home? These questions typically turn up on a patients health risk assessment (HRA) form. The HRAs are used by health professionals to develop a health improvement plan for the patient that reduces their health risks.
Now imagine what it may have been like if an HRA for Adam Lanza had identified mental health issues and his access to powerful guns and ammunition as a risk factor. Imagine what a health professional might have thought had he or she also learned that Adam was taught by his mother how to fire these weapons because she wanted him to survive the coming economic collapse of the country. In other words, she taught him how to kill other people who would endanger his lifestyle - Adam's aunt is reported to have described this training as part of the "prepper" movement.
But none of this happened. It couldn't happen under the Affordable Care Act's Sec. 2717(c) which shields gun owners and their families from having disclose to health professionals or insurers any risk of firearms combined with mental health. There can be no data collected on this. No databases developed - for background checks for example. The NRA planted a poison pill in the Affordable Care Act in the form of an amendment that prohibits any attempt to connect gun ownership to mental health - as if these violent massacres are somehow carried out by otherwise sane people.
Knowing that one day there would be a shooting so violent that the public wanted gun control, the NRA anticipated this by planting a poison pill in the ACA. If Congress wants to be responsive to the huge public outcry of the shooting at Newtown (and all the others preceding Newtown), the have two paths. TOn the one hand, they could simple ban assault weapons and large ammunition clips. But that may not be sufficient to calm a very anxious public. Teachers themselves are now quietly expressing fears, and hearing calls from the gun lobby to arm teachers. Alternatively, Congress could take a broader approach in so far as gun violence is linked to mental health - which seems to be the consensus of the pundits anyway. But therein lies the problem.
The path the NRA would doubtless love to see the debate take is the link of gun control to mental health. They already know where that path goes - straight to Section 2717 of the ACA. Congress already prohibited any data collection on health that includes questions on firearm and ammunition ownership and storage. And President Obama signed it into law in March 2010. The NRA has almost invited the debate to go down this path.
Why would they do this? Politics is always about being one step ahead of the opposition. Congress understood that the ACA would need to be "fixed" with future amendments - so-called technical amendments. What they do not want to do is re-open the substantive policy issues enshrined into law under the ACA. Opponents of the ACA would love to have just the right cause to open the ACA for amendments on policy. Opponents of the ACA never envisioned that the public outcry to change a significant policy piece of the ACA could result from something as horrendous like what took place on Newtown Ct. As distasteful as it is, the opponents of the ACA have a crisis opportunity to re-litigate Obamacare.
Once you open Pandora's box, beware. Every special interest group will want to take advantage of amending the ACA. With anything other than gun control at the center, this re-litigation might be done piecemeal. That is to say, only changing Section 2717(c) - a technical amendment to strip it from the law. However, if members of Congress are going to take away Sec. 2717(c), the protective shield of the NRA, they will want something in return. The quid-pro-quo of politics. And every special interest group will be piling on legislators with their requests for what the members of Congress should "get" in exchange for their votes to oppose the NRA. That's democracy. Some members may want cuts in Medicaid. Others may want assignments to more powerful committees (recall Michelle Bachman getting a seat on the House Intelligence Committee.)
The NRA knows how Washington works - so they planted this poison pill. If Congress is sincere in taking away the shield that protects the NRA in the Affordable Care Act, they will do so by risking the fabric of the entire ACA. At least that's what the NRA likely hoped for. They undoubtable have figured out how to stay ahead of the opposition and would love to see the debate on gun control be linked to mental heath. They know the end game of the debate under these terms. Congress won't have the votes to collectively swallow the poison pill that could unravel the ACA with amendments far outside the parameters of gun control.
The conundrum is that a failure to link mental health to gun violence is simply a recipe for more mass violence. Perhaps not with assault weapons - but some form weaponry. Everyone understands that there are mental health issues that result in these acts of violence. These are not acts of terrorism in the sense of ideological warfare. These are simple acts of mental illness with disastrous consequences.
To really change any of this, we will need a solution that does remove the protective shield from the NRA - Section 2717(c) of the ACA.