Transcreve-se, abaixo, artigo em que Ronald Dworkin discute processo em que a Suprema Corte dos EUA examinará a constitucionalidade das medidas propostas por Obama, já aprovadas pelo congresso, visando a reforma do sistema de saúde.
A discussão evidencia tensões entre liberdade e solidariedade na reforma daquele sistema de saúde, a qual busca estender cobertura a pessoas que não dispõem de atenção à saúde.
A leitura ainda nos faz valorizar o sistema brasileiro, já que aqui, desde de 1988, há um sistema nacional de saúde, com garantia de acesso universal, igualitário e integral.
Why the Health Care Challenge Is Wrong
The plaintiffs have asked the Court to declare the
Affordable Care Act (the Act) unconstitutional. The political and social stakes
are enormous, but the legal issues, most analysts think, are not really
controversial: the Constitution’s text, the Supreme Court’s own precedents, and
basic constitutional principle seem obviously to require upholding the act.
Many legal scholars predicted a 7-2 decision rejecting the challenge. But they
apparently misjudged the dedication of the ultra conservative justices, whose
questions in the oral argument have now convinced most commentators that on the
contrary, in spite of text, precedent and principle, the Court will declare the
Act unconstitutional in June, by a 5-4 vote.
That prediction may be too swift. There are reasons
at least to hope that Justice Anthony Kennedy, often the swing vote between
liberals and ultra conservatives, will have sufficient respect for Congressional
authority to save the Act. (I discuss these reasons in an expanded version of
this piece, which will appear in a coming issue of The New York Review.)
The prospect of an overruling is frightening.
American health care is an unjust and expensive shambles; only a comprehensive
national program can even begin to repair it. If the Court does declare the Act
unconstitutional, it will have ruled that Congress lacks the power to adopt
what it thought the most effective, efficient, fair, and politically viable
remedy—not because that national remedy would violate anybody’s rights, or
limit anyone’s liberty in ways a state government could not, or would be
otherwise unfair, but for the sole reason that in the Court’s opinion the
strict and arbitrary language of an antique Constitution denies our national
legislature the power to enact the only politically possible national program.
It is only a specific provision of the Act that is
now under serious constitutional challenge. The Act provides, among other
benefits, health care insurance for the 16 percent of citizens who now lack it,
and it forbids insurance companies to deny coverage or charge higher premiums
for those who have a preexisting illness or incapability. These obviously just
benefits cannot be provided, however, unless all citizens—the young and healthy
as well as the elderly and already sick—join the insurance pool. If only those
likely to need treatment seek to join, the insurance companies would need to
charge astronomic premiums that most of them simply could not afford.
The premise of all social insurance plans,
including the Social Security program, is that inescapable risks should be
shared across a political community between those more and those less at risk.
The Act follows this principle; it provides that with few exceptions Americans
who are not insured by their employers or by other government programs must
purchase insurance themselves or, if they do not, pay what the Act calls a
“penalty” on their tax return.
It is this so-called “mandate” that the plaintiffs
in this case—26 states with Republican governors, a group of businesses and
some private citizens—challenge as unconstitutional. They say that although the
Constitution gives Congress the power to limit or forbid
commercial activity that has a significant impact on the national economy, it
denies Congress power to require commercial activity, like buying health
insurance, even when that activity is crucial to the national economy. That
distinction between negative and positive regulation—between dictating the
terms of insurance and requiring people to buy insurance—is the heart of the
constitutional challenge. It was treated as potentially decisive by all the
conservative justices who spoke: Justice Kennedy, for instance, asked whether
the mandate doesn’t “create” commerce rather than regulate it. Why is the
difference between restricting and requiring activity so important?
Not because the language or underlying principles
of the Constitution demand that distinction. The Constitution’s architects were
guided by a principle that makes the distinction irrelevant: that Congress
should be assigned only those powers that could not effectively be reserved to
the states. They believed that if the effects of a particular political
decision would be felt only or mainly within a particular state, that decision
should be made by that state because decisions by state officials would be more
sensitive to local needs and local opinion. But if some matter could only
sensibly be settled at the national level, like decisions about foreign trade
or the terms of trade among citizens of different states, then the principle
required that Congress have the power to decide it. That test can be applied
without distinction to both negative and affirmative regulation.
Why do the conservative justices nevertheless think
that distinction so crucial? They offer only one reason: they say that if
Congress can make people buy insurance then it can make them buy anything it
wishes. Why could Congress not make people buy electric cars to reduce
pollution? Or join health clubs to improve the nation’s health? Or buy broccoli
to keep broccoli prices high? All the conservative justices who participated in
the oral argument pressed these questions. They said they could not uphold the
insurance mandate unless they found what they called a “limiting” principle
and, they suggested, none could be found.
The government’s lawyer, Solicitor General Donald
Verrilli, offered several ways to distinguish health care from electric cars
and broccoli. He said, first, that people do not have to buy cars or broccoli
but almost everyone, eventually, has to receive health care. No one doubts that
Congress could require patients to pay for any medical service they require
through insurance, so that uninsured heart attack victims who wanted hospital
treatment would have to buy insurance in the ambulance, presumably from
paramedics trained also to sell it. Why can’t Congress avoid that ridiculous
prospect by requiring people to have insurance in advance?
His second argument was even stronger. Every
American already has health insurance; the mandate only requires that he
pay for his insurance rather than free-loading on those who do pay. A federal
statute and several state statutes require hospitals to provide emergency
medical care to people who cannot pay for it, and America’s traditions of
compassion mean that doctors will not let people die in pain when they can
easily save or help them. In practice, this means that the uninsured will go to
costly ER facilities when they need medical help. Congress found that health
care for uninsured patients cost $43 billion in 2008; these costs were paid,
through higher premiums, by those who do buy insurance.
Congress surely has the power to make people pay
for what, out of human decency, the law and practice provide for them. Since it
is impossible to predict who will suffer a grave accident or fall victim to a
terrible disease, and since almost no one without insurance can pay for
adequate care if he does, the only effective means of making people bear the
actual costs of their own treatment is to require them to buy insurance in
advance.
These are effective replies to the single
conservative argument: they distinguish health care and insurance from broccoli
and electric cars, and so offer a “limiting principle” of the kind the
conservative justices say they want. There is, however, a deeper, more
comprehensive objection to their argument: no limiting principle is either
necessary or desirable. Their argument conflates two questions.
First, what power does any American legislature
have to coerce people to buy what they do not want? Second, if any such
coercive power exists, how is that power to be allocated between the state and
national legislatures? Once we distinguish these questions we see that the
conservatives’ distinction Congress regulating the price and terms of health
insurance and making people buy that insurance is pointless.
The rhetorical force of their examples, about
making people buy electric cars or broccoli, depends on a very popular but
confused assumption: that it would be tyrannical for any government to force
its citizens to buy what they do not want. In fact both national and state
governments steadily coerce people to do just that through taxation: they make
them buy police and fire protection and to pay for foreign wars whether they
want these or not. There is no reason in political principle why government
should not make people pay directly for these services through insurance rather
than indirectly through the mechanics of taxation: direct payment would be no
greater compromise of freedom. In fact Massachusetts does make people buy
health insurance: that mandate is at the core of that state’s health care
program, on which the national Act was partly based. Almost no one—apart from
Michele Bachmann—has argued that the Massachusetts mandate is unconstitutional.
So we may ask: is there a constitutional limiting
principle that would allow Massachusetts to impose that mandate but prevent it
from requiring its residents to join health clubs or buy broccoli? There are of
course constitutional limits to any power of government. Neither the indirect
mandate of taxation nor any more direct mandate may be discriminatory or
irrational, neither may deny due process, and each must serve some proper
purpose of government. But are there any special limiting principles that would
prohibit a state requiring broccoli purchase in a rational and fair way?
No. We are protected from silly state mandates not
because the Constitution rules them out but because politics does. No state
legislature would dare to make broccoli purchase compulsory unless, for some
hard-to-imagine reason, this was plainly the only way to avert some economic
catastrophe. The role of democratic politics in protecting citizens against
legislative corruption or stupidity does not depend on whether the legislature
wants to require or forbid economic activity, however. Voters would be no less
outraged by a state legislature’s decision to ban automobiles altogether than
by its decision to make them buy electric cars.
If we do not need a limiting constitutional
principle to stop a state from outrageous economic legislation, we do not need
any such principle to stop the national Congress, within its proper sphere,
either. The Court can allow Congress, as it allows Massachusetts, to mandate
health insurance without finding a constitutional barrier to a national
compulsory broccoli purchase. Politics supplies the appropriate check in both
cases. So we must turn to the genuinely important question, the second question
I distinguished. What is Congress’s proper sphere of control in health care
matters?
We answer by consulting the principle I described:
the principle of state control over local matters. Neither the Constitution’s
language nor that principle distinguishes between negative and positive
regulation of commerce, between prohibition and mandate. The principle does
require that Congress show that the commerce it seeks to regulate has a profound
impact on the national economy. National regulation of health care plainly
passes that test.
We cannot ignore the political dimension of this
case. The Republican Party and the candidates for its presidential nomination
relentlessly denounce the Act, perhaps largely because it was one of President
Obama’s main domestic achievements during his first term. They hope that the
conservative justices will declare the Act unconstitutional in June, just as
the primary season ends and the national presidential campaigns get under way;
they think that will help them defeat the President in November. But the Act is
plainly constitutional and it will be shaming if, as so many commentators now
expect, those justices do what Obama’s enemies hope they will.
Our recent history is marred by a number of very
badly reasoned Supreme Court decisions that, deliberately or not, had a
distinct partisan flavor: Citizens United, for example, which, most
critics agree, has already had a profound and destructive impact on our democratic
process. Those decisions soiled the Court’s reputation and harmed the nation.
We must hope, though perhaps against the evidence, that the Court will not now
add to that unfortunate list.
