The Consequences Of The “Constitutionality” Of Obamacare

by on 29 March, 2012


IMG_7667Dr. Michael Keane looks at the long-term effects of "Obamacare" on conceptions of personal identity and mental health:

This week the Supreme Court heard oral arguments related to the constitutionality of Patient Protection and Affordable Care Act (aka the PPACA or Obamacare). The pivotal issue is that of the mandate for individuals to purchase health insurance. If the mandate is found to be constitutional there will be consequences for the Federal Government’s ability to regulate private citizens’ lives far in excess of the power to compel the purchase of a private product.

The Essential Health Benefits package in the PPACA outlines the broad classes of conditions that must be covered in order to satisfy the mandate. It is the requirement for coverage of mental health and substance use disorder services (including behavioral health treatment) that has the potential, when taken to its logical conclusions, to open the whole scope of human behavior to regulation by the Federal Government.

The Government is arguing that the Commerce Clause of the Constitution gives it the power to enforce the individual mandate. The rationale is that health care has a significant effect on interstate commerce and that everyone will need health care at some stage. Therefore, the individual mandate is conceptualized as merely being a way to regulate WHEN payment should be made for the inevitable consumption of health care. This inevitability-of-health-care argument is thus used to justify the Government’s ability to compel individuals to buy an insurance product. The inevitability argument is untenable on a number of fronts when put in the context of accepted clinical, biological and ethical principles as is outlined in the accompanying article in the Mayo Clinic Proceedings http://www.mayoclinicproceedings.org/article/S0025-6196(12)00198-X/fulltext

Firstly, we have to be aware of what the term mental health and has become. Most are comfortable conceptualizing, for example, schizophrenia, major depression, bipolar disorder or incapacitating anxiety disorders as illnesses. However, the concept of “mental health” has morphed and expanded and now concerns itself withevery imaginable dysfunctional, odd, eccentric, antisocial and criminal behavior. Absolutely anything you can think of can be coded as a mental illness, especially with the catch all code of Not Otherwise Specified (NOS). It is furthermore likely that as we discover the neuropsychological basis of some behavioral problems it may well be appropriate to conceptualize them as mental illnesses. On this front, many people are already understandably frustrated when certain behaviors, especially the dysfunctional behavioural components of addictive disorders, are classified as brain disorders; thereby removing personal responsibility from the individual. “It’s not my fault, it’s my disease”.

For the sake of this discussion, we also have to be aware of the ideological underpinnings of mental health. I say this with no prejudice but merely attempt to indentify a reality in order to give readers some context. If you were to look at a distribution curve of the political and ideological leanings of academics and activists within mental health it would be centered on the left of the spectrum. The prevailing ideology has become one of the informed elite having a moral duty toregulate and control the lives of we, the people; the very opposite of rugged individualism. We just have to be realistic about the direction in which mental health is being driven, especially now that everyone will be forced to be covered for mental health services.

It has been uniformly accepted that the Government is not justifying its use of the Commerce Clause for the sake health INSURANCE per se. It is the underlying health care consumption that is being used to justify the mandate to buy health insurance. It is the underlying illnesses and diseases that force people to consume health care; or as one Appeals Court Judge summarized "No one can opt out of illness, disability, and death."  Thus, if the individual mandate is found to be constitutional, it will mean that all the diseases and illnesses for which coverage is mandated are in fact the elements that affect interstate commerce; because it is health care consumption, not insurance consumption which justifies the Governments mandate.

This will have a number of far reaching consequences. Firstly, it will bring almost the entire human condition under the reach of the Commerce Clause. Remember that virtually every dysfunctional behavior can be coded as a mental illness. Therefore every dysfunctional behavior can be said to affect interstate commerce.

Since the utter absurdity of the Twinkie defense, legislatures have attempted to reduce the opportunity for criminals to avoid punishment by the use of obscure and marginal mental illnesses. However, this current situation would represent a completely separate matter. Currently, to avoid prosecution for a crime you have to demonstrate that a mental disorder affected your capacity to know that what you were doing was wrong; the presence of a mental illness per se does not excuse criminal behavior. However, if the mandate is allowed to stand the mere presence of a diagnosis of a mental illness would categorize a person as being open to regulation by the Federal Government under the Commerce Clause.

This would represent a stark reversal of opinion by the Supreme Court. Previously, it ruled that criminal behavior per se could not be regulated under the Commerce Clause. The Court reasoned that in order to connect criminal conduct with interstate commerce, inference upon inference would be needed to make the connection. Not so if the individual mandate is found to be constitutional. With or without the need for the “Not Otherwise Specified” code, it is possible to code mostcriminal acts as components of mental illnesses. And as mental illness would now be considered to affect interstate commerce, the Federal Government could legitimately enact laws to regulate the manifestations of that mental illness.

Even aside from frank criminal behavior, any sort of subjectively anti-social, coercive or manipulative behavior would be fair game to regulate under the Commerce Clause. There are also many categories within mental illness classifications for behavior which is odd, unusual, eccentric or merely out of the mainstream. The unkempt hobo could certainly be controlled by the Federal Government for the effect s/he was having on interstate commerce. You can beconfident that creative politicians, lawyers and psychiatrists will use this to advocate for regulation of ever more parts our lives, especially now that any excess behavior can be labeled as an addiction (I have even heard of someone being clinically diagnosed with heavy metal addiction!) In this context, we have already seen the first generation of attempts to associate political leanings with brain function. In the future it is feasible, if not predictable that attempts at politicalregulation will be advocated for.

These are the consequences of accepting that mental illnesses affect interstate commerce; the inescapable logical consequence of accepting the Government’s rationale for the individual mandate. If the cost of treating mental illness is an INEVITABLE phenomenon that affects interstate commerce, then the Government has a legitimate stake in regulating those sufferers of mental illness as they directly affect interstate commerce.

There is another consequence of accepting the Government’s inevitability-of-health-care-argument. If the legal precedent is set that the manifestations of illnesses are inevitable, then what does that say for all the aberrant behavioral problems that can be coded as a mental illnesses? The abrogation of personal responsibility that might arise from such a legal precedent is mind boggling.

Aside from the immensely complex ramifications of mandating insurance for mental illnesses, the consequences of accepting the inevitability-of-healthcare-consumption argument are many. For example if the mandate is found to be constitutional, the Supreme Court, in one fell swoop, will be rejecting the very basis of lifestyle medicine, preventive medicine and much of public health.

Dr. Michael Keane is an anaesthetist and researcher with interests in illicit drug use and drug policy, bioethics and public health. He is also a lecturer in public health at Monash University, and a member of the Liberal Democratic Party. 

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