SCOTUS, ACA & ‘Mis-informed’ Justices

By Gregg A. Masters, MPH

As suggested yesterday while ‘the case has been submitted’ per Chief Justice Roberts upon conclusion of Day 3 oral arguments over the constitutional challenges to the Patient Protection and Affordable Care Act, the war to shape the national narrative is well underway.

The blogosphere is ripe with buzz over the manner in which the Court conducted itself particularly with respect to the admission of erroneous information aka the ‘broccoli analogy’, and ‘the Cornhusker Kickback‘, the failure to read the actual law under dispute (by at least Justice Scalia), and the apparent echolalia of anti ‘ObamaCare’ right wing talking points, proferred as ‘facts’ in the Supreme Court of the United States.

As contextually offered by former Reagan Administration Solicitor General, Charles Fried to ABC News in 2010:

Anybody [who questions the constitutionality of the Affordable Care act] is either ignorant — I mean, deeply ignorant — or just grandstanding in a preposterous way.

Not much room for doubt here….and might I add the overwhelming weight of informed healthcare policy wonks and legal thinkers side with Fried’s view.

Fast forward via a recent interview with Ezra Klein of the Washington Post, where former SG Fried further opines given the Court’s current process:

 I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them. I don’t get it. It was comical to read the Heritage Foundation’s brief attempting to explain why they were changing their position on this. Something needed to be done about this problem. Everyone understood that. So, the Heritage Foundation said let’s do an individual mandate because it keeps it within free enterprise. The alternative was single payer.

I find it fascinating for the capacity of some of us to rationalize anything, as if there is no institutional memory of any kind. That what’s real for some is only within the last 24 hours news cycle or is otherwise in alignment with their more often than not emotionally built ‘world view’. We are indeed living in the ‘United States of Amnesia‘ (or the Studs Terkel re-brand:  ‘the United States of Alzheimer’s) with a portion of the general public apparently unwilling to tether themselves to context and facts vs. purpose driven ideological spin.

Incidentally, this drama has everything to do with ACOs and the accountable care industry. To some degree this movement will advance regardless of SCOTUS for market and structural reasons, yet if nothing else, SCOTUS will impact the ambient background noise if not the direct context in which the competitive drama plays out.


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