Saturday, May 05, 2012

Attention, Justices Kennedy, Roberts et al: read the young people's brief

Of the 79 amicus briefs filed with the Supreme Court on the question of the constitutionality of the individual mandate in the Affordable Care Act, arguably the one most directly germane to the main thrust of oral argument on 3/27 was a brief filed by a coalition of 20 youth organizations calling itself, with pointed irony, the Young Invincibles. Did the justices read the damn thing? The evidence from oral argument suggests not.

For all the legal intricacies regarding what kinds of regulation come within the scope of the Commerce Clause and the Necessary and Proper Clause in the Constitution, oral argument centered largely on a morality tale spun by the plaintiffs. In this tale, the main characters were hoards of healthy young adults being forced to buy more coverage than they need in order to subsidize the coverage of older adults.  The key verbs, deployed relentlessly in the plaintiffs' briefs and testimony, were force, conscript, compel, and commandeer.  Free, strong, savvy young Americans were being robbed of their ability to assess risk, drive bargains, and buy precisely the amount of risk transfer that their robust condition required. The ACA is structured "to compel the uninsured into engaging in economic activity that is harmful for them" (Carvin brief, p. 1).

Several of the justices appear to have swallowed it hook line and sinker. Alito, Roberts and Scalia buzz-sawed Solicitor General Donald Verrilli with serial restatements of it. Verrilli did point out that young people will a) become old, and b) sometimes, unpredictably, need catastrophic care.  Yet he did not bring to bear these facts: that young people overwhelmingly want health insurance; that they are disproportionately uninsured and underinsured; that their lack of health insurance causes them bodily and and economic harm; and that the ACA makes insurance affordable, not unaffordable or unduly expensive, for them.

The Young Invincibles brief articulates and documents all of these basic and readily available facts. (To these I would add that far from mandating unnecessary "Cadillac" coverage as the plaintiffs aver, the ACA provides, perhaps to a fault, a range cheap, stripped-down coverage options, including catastrophic coverage, that limit the scope of the mandate.) Some highlights:

Young adults are disproportionately uninsured.
In 2010, young adults made up 26% of the population under the age of 65, but account for 45% of that population's uninsured (p. 4)...Only 53% of young adults, ages 19 to 29, have access to employer-sponsored insurance, compared to 76% of adults over the age of 30 (p. 9)...The average annual premium of an individual plan offered to a healthy 27-year old is $1,723...the average young adult with no access to employer-sponsored insurance earns $14,746 per year, making individual plans effectively unattainable (p. 12)..About 19.8 million of the over 70 million young adults between 18 and 34 are uninsured (p. 13)...Millions more remain underinsured, enrolling in barebones coverage that leaves them without access to everyday care (p. 14).

Young adults want health insurance.
When health insurance is affordable and available, young adults enroll at rates similar to older Americans...just 5% actually choose to go uninsured...Instead, the vast majority of young people say they lack insurance because of a lack of affordable options or because they have a pre-existing condition (p. 5). ..when young adults ages 19 to 29 are offered affordable health insurance through employers, 7% enroll, compared to 84% over age thirty (p. 15).

Current behavior proves that the young want health insurance
The uninsured rate is just 14% for young adults living over 400% of the federal poverty level (FPL), but rises to 46% for young adults making less than200% of the FPL...healthy, higher-income young adults are ore likely to have insurance than lower income, often less healthy young adults, completely dispelling unfounded assumptions to the contrary.. .

In 2010, the Department of Health and Human Services estimated that 3.4 million 19 to 25 year-olds were currently uninsured, and had parents who had insurance with the possibility of family coverage...[vastly exceeding expectations,] 2.5 million young adults enrolled on their parents plan in 2011 [when the ACA made that possible] - -a take-up rate of nearly 75% in one year (pp 17-18).

Making coverage available creates economic freedom
Creating affordable individual insurance will also provide young adults, often looking to go back to school, change jobs, make an interstate move, or generally built their careers and their families, with the financial flexibility ad variety of options to switch from the coverage they might currently have (p. 7).
The ACA makes coverage affordable
The Act's tax for failing to maintain minimum coverage will not be assessed against anyone whose family is below the poverty line...Nor will it be assessed against anyone who cannot purchase coverage for less than 8% of his or her income..Also, the ACA provides subsidies...for anyone whose family income is less than 400% of the poverty line; approximately two-thirds of young adults will qualify for subsidies or Medicaid....everyone required to purchase insurance will be able to afford to do so (pp. 7-8).

The young need health insurance, physically...

Young adults have chronic illnesses, catastrophic accidents, unpredictable health crises, and need preventive care....Approximately 15% of young adults live with a chronic health condition such as asthma, diabetes, or cancer...Moreover, almost 16% of young adults ages 18 to 24 have what is classified as a "preexisting condition," and without the ACA are often excluded from the current market altogether (pp. 18-19)...Nearly one-third of uninsured young adults reported their health worsening because they did not access health care soon enough, and almost half of uninsured young adults with a chronic healthy condition reported their condition worsened when they avoided medical treatment due to cost. (p. 25).
 ...and economically
[Young adults'] low incomes lead to serious financial troubles when forced to pay out of pocket. This financial difficulty limits career and educational flexibility for those saddled with expenses or stuck in a less productive job in order to maintain existing coverage (p. 19)...Of those uninsured young adults who sought medical attention, 60% reported difficulty paying for their treatment, compared to just 27% of insured young adults (p. 23)...about half of uninsured young adults incur medical costs...For those young adults with medical debt, the mean debt level is $13,303--higher than any other age group, and credit card debt is 70% higher for those with medical debt -- again, a much higher difference than for any other age (pp. 24-25).

Does the coverage mandate, however, exceed the needs of most young people? Justice Roberts seemed to think so:
CHIEF JUSTICE ROBERTS: Well, but it's critical how you define the market. If I understand the law, the policies that you're requiring people to purchase involve -- must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment -substance use treatment or pediatric services, and yet that is part of what you require them to purchase (oral argument, pp 31-32).
Cf. the Young Invincibles brief:
...young adults need a range of care, from the sudden accidents and unexpected illnesses, to the routine preventive care. Rates of motor vehicle accidents, sexually transmitted diseases, and substance abuse peak in young adulthood...almost half of pregnancies are unplanned, and three-quarters of unplanned pregnancies are from women under the age of 30...Before the Affordable Care Act, only six percent of women purchased coverage through individual insurance markets. These plans have traditionally been able to deny coverage to individuals with a "preexisting condition" such as a pregnancy. Furthermore, plans sold on the individual market often do not cover many important services for women, such as maternity  care (pp. 19-21).

Many legally trained supporters of the ACA seem to consider these facts secondary, on grounds that post-Depression case law clearly empowers Congress to craft a scheme such as the ACA.  Congress is within its rights to try to extend universal coverage via the private market; it cannot viably demand that insurers extend guaranteed issue and community rating without insisting that everyone buy coverage before they get sick; everyone is in the health care market because everyone needs medical care; and it's in the unique nature of insurance that it must be bought before it is needed. QED.  All true and logical, as far as I'm concerned, and the plaintiffs expended a good deal of ink in more or less direct rebuttal.  But again, the persuasive thrust of their argument was show, don't tell: with novelistic force they evoked an army of healthy young people weighed down by a superfluous mandate to insure themselves against outlandish contingencies such as pregnancy or substance abuse treatment. And that argument seemed to weigh with Justices Kennedy, Alito, Roberts and Scalia.

A group of clear-headed young people took it upon themselves to explode this live-(insurance)-free-or-die myth with some harsh facts about American life. It would behoove their elders to pay attention.

More on misrepresentation of the Minimum Coverage Provision in the Supreme Court:
Attention SG Verrilli and Justices Kennedy, Roberts: A plea for one more pleading (4/29)
Kaiser weighs in: the ACA offers catastrophic coverage to all comers (4/27)
Patient cost-sharing under the Affordable Care Act (Kaiser Family Foundation. 4/27)
Another limiting principle for mandate: states can opt out (4/23)
Jonathan Cohn tells the justices: the ACA has catastrophic coverage options (4/20)
Will the justices make a catastrophic error? (Jonathan Cohn, 4/19)
Michael Carvin misrepresented the mandate in oral argument (4/12)
The ACA offers catastrophic coverage: the AP notices  (4/10)
Supreme Court misunderstanding on health overhaul? (AP's Ricardo Alonso-Salvidar, 4/10)
Marty Lederman concurs: the individual mandate could be trimmed, not killed (4/5)
The bounded, minimalist way to uphold the ACA (Marty Lederman at Balkinization, 4/2)
Go tell the justices: the ACA has a catastrophic coverage option (3/31, updated 4/2)
Was Verrilli just the wrong man for the job? Part I (Ragbatz Tumblr, courtesy of Anon below, 3/28)

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