A Doctor’s View of the Supreme Court’s Health-Care Ruling

The high court’s ruling on the ACA is not a political football. It’s a fundamental acknowledgment that people are mortal. By Dr. Kent Sepkowitz

06.28.12 6:14 PM ET

The Supreme Court, with today's decision on the Affordable Care Act, has decided that we all are grown-ups and can hear the true facts of life and death. They realized that health care is not just another commodity, but is, like death and taxes, a requirement. Think of it: from the moment you are born—no from the moment you are conceived, you become a patient. It's logical enough: when you first exit the birth canal, whom do you see first? Mom? Dad? Please—no way. It's us, the purveyors of American health care, doctors and nurses and all the rest standing not in your kitchen but in a stainless-steel birthing suite.

So it begins; but the relationship doesn't stop at birth. Next come vaccines and well-baby exams; the appendix and the broken arm; the pregnancy and the knee scope; the injections for the sore back and the chest pain; the lump and the CT scan; the stents and the chemo; then more stents and more chemo and another biopsy; and of course medications—lots and lots of medications. And then you get really sick and you die. All told, we will spend about $316,000 in health care on you from cradle to grave (more for women, $361,000, than for men, $268,000). Health care: where death and taxes meet. 

The Supremes have realized that the issue was not a commodity called health care; it was the bedrock necessity called health. It was not legal precedent or broccoli; it was illness. At this odd moment, having just determined that corporations are people, they have seen that the opposite is not true: that people are not corporations. We don't file for Chapter 11 when we are ailing—we get sick and then sicker. And most importantly they accepted the cruel fact that the distribution of good health in the population is not even nor is it fair. The justice system at its most elemental exists to try to make fair those areas where for whatever reason, unjustified disparities exist. Confronted with the single largest moral issue of our time—whether some people deserve good health more than others—they have taken the high road. 

With their decision, the Supremes have admitted at last that people—even Supreme Court justices (perhaps especially Supreme Court justices)—are mortal. Perhaps this is a benefit of having old judges or younger ones, like Chief Justice Roberts, who have health issues. Illness happens not because you are a good person or a bad person or a liberal or a conservative, but because it happens. End of discussion. After months of hissy fits about death panels and rationing and intrusive big government, the court adopted an adult demeanor and soberly saw that health and health care were not the usual bill of fare: not cursing on television or even the funding of political campaigns.  

One of the sticking points for Obama and the Supremes has been an ongoing confusion between the health and health care. The distinction, though subtle, is substantial. The terms have come to be used interchangeably yet often point in completely opposing directions. Health is simple to conceptualize—it is what we all hope to have and maintain. Those who are sick strive and struggle every day to return to health while those whose health is good move with the confidence of one chosen, preening from here to there with a sense of deserved invincibility.

On the other hand, health care is a complex conglomerate of mostly financial interests that tries to align with health—but all too often does not. Indeed bad health is, in many ways, good for health care and conversely, good health can be bad for the health-care industry. Consider it just in terms of jobs: the health-care business employs about 9 million people, representing 7 percent of the U.S. workforce. Just about all of those 9 million rely not on the healthy but the sick. And the sicker, the better.

Hospitals, clinics, and their employees are not the only groups dependent on bad health to survive. There's the pharmaceutical industry rooting for your continued infirmity—they refer to the "cancer market" and make development decisions based on a given disease's market penetration. Plus there is a never-ending supply of other professionals making a buck off illness, from ambulance-chasing lawyers and their obligatory counterparts, lawyers who defend entities against the ambulance chasers, to vitamin and supplement companies who rake in $23 billion a year, to TV shows starring fictional doctors like House and mostly fictional ones like Dr Oz. Plus we have a food industry that needs us to be fat, a tobacco industry that needs us to smoke, and an alcohol industry that requires heavy drinking. Illness creates a lot of jobs.

As an aside—in a strange twist, the usually reviled insurance industry is stationed on the flip side of this particular coin. Believe me, other than your mother, no one wants you to live a long and extremely healthy life more than the insurance industry. That way they can take your money every year and pay nothing out—oh, how they love the healthy. If only everyone could simply drop dead at 98 years of age, on no medications, never a day in the hospital.

To admit to health care's reliance on poor health is not to suggest that doctors and health-care professionals welcome illness or arrange the world to maximize infirmity. Hospitals are not secretly behind the obesity epidemic any more than evil misanthropic scientists introduced HIV deliberately in an attempt to exterminate gay men and the poor. Rather, health care grew up around the extremely needy, responding to urgencies, and has expanded in unexpected, even illogical ways. 

But the paradox between health and health care does mean that the goals of the two can be at odds. At times, the pursuit of health and health alone seems ready to bankrupt the health-care system. The first and still the best example is dialysis, which costs more than $40,000 a year. The guy who a few decades ago would have died from renal failure is now going about his business, living with a chronic disease—that’s great news if he’s your grandfather but really, really bad news if you’re writing the checks. And dialysis is only one of many extremely costly yet effective treatments for a slew of diseases, including cancer, heart disease, and HIV. According to the government numbers, 5 percent of the population accounts for 49 percent of the health-care dollars spent while half the population accounts for just 3 percent. ACA set out to minimize the impact of this unfair but intractable fact—remember "life, liberty, and the pursuit of happiness"?

The Supreme Court pronouncement will create countless challenges in the months and years ahead as individuals, hospitals, bureaucrats, and all the rest struggle to implement a complicated, clumsy, all-too-vague, expensive, and uncertain new directive. There will be countless moments of buyer’s remorse for ACA proponents and delicious I-told-you-so moments for those opposed. But the Supreme Court must be commended for reaching a little up and out of their usual dweeb-o-sphere and into the realm of the large, the daring, and the moral. They maturely have reminded us that we are all destined to become ill and destined to die; they saw that politicizing this sad truth by yielding to the infinitely fatiguing intricacies of health care was simply wrong.  Though the business of health care is far too big to ever fully succeed, they have reminded us that our pursuit of health must never stop.