Conservatives are feeling smug. The recently completed Supreme Court oral arguments on the healthcare law were replete with skepticism about the powers of the federal government and glorification of personal liberty, though what was being celebrated was the dubious right of a person to be uninsured against the risk of a catastrophic medical event.
We’ve come to assume that modern conservatism is a stalking horse for an expansion of corporate power. Yet were the interests of big business really being served by the evisceration of the Patient Protection and Affordable Care Act?
First, in their desire to invalidate the individual mandate to purchase coverage, lawyers opposing the law and conservative justices went out of their way to distinguish it from what they had to admit were the valid powers of Congress to impose taxes and regulate commerce. Nary a negative word was said about the provisions of the act that impose dramatic new restrictions on the health insurance industry relating to pricing and the denial of coverage to those with pre-existing conditions. Although the justices seemed more inclined to throw out the entire law than to simply carve out the individual mandate, they suggested they would have no problem if Congress subsequently passed new legislation that reinstated the regulations without the hated mandate.
What the justices downplayed is that the Affordable Care Act was a grand bargain with the health insurance industry in which it acceded to the new regulations in exchange for being guaranteed a vast new pool of customers whose premium payments would be heavily subsidized by the federal government. The Right has gotten so carried away with its denunciations of the Act as a government takeover that it has forgotten it is really an enormous boon to private insurers.
One member of the court who chose not to ignore this was Justice Ginsburg, who during the second day of the hearings said she found it “very odd” that the opponents of the law were conceding that the government had every right to take over entire portions of the healthcare insurance market, as with Medicare, but rejected an arrangement designed to “preserve private insurers.”
The point also came up in an exchange the same day between Justice Kennedy and Solicitor General Donald Verrilli in which Kennedy seemed to acknowledge that Congress would have the right to create a single payer system, and Verrilli responded that it was “a little ironic” that the Act was being criticized because Congress had instead decided to “to rely on market mechanisms and efficiency and a method that has more choice than would the traditional Medicare or Medicaid-type model.”
Of course, there is no guarantee that if the Affordable Care Act is struck down in its entirety, Congress will reinstate the most significant regulations on the insurance industry, much less that it will embrace single payer. But one has to wonder what the industry thinks about the position in which it will be put.
Once they made their deal with the Obama Administration, the big insurers largely stayed on the sidelines as the Right assailed the Act, purportedly in the name of free enterprise. Now those companies seemed to be confused about the law.
In its most recent 10-K filing, giant UnitedHealth Group acknowledges that the new law “may create new or expanding opportunities for business growth” but also warns that it “could materially and adversely affect the manner in which we conduct business and our results of operations, financial position and cash flows.” Its rival Wellpoint expresses the same ambivalence in its 10-K, saying: “As a result of the complexity of the law…we cannot currently estimate the ultimate impact…on our business, cash flows, financial condition and results of operations.”
Yet they seem even more worried about the possibility that the law may be overturned. UnitedHealth writes: “Any partial or complete repeal…could materially and adversely impact our ability to capitalize on the opportunities presented by the Health Reform Legislation or may cause us to incur additional costs of compliance.”
Apart from the insurance companies, there are other major corporate players that have been intending to “capitalize on the opportunities” created by the Affordable Care Act’s infusion of lots more federal money into the medical sector. For example, for-profit hospital operator HCA writes in its 10-K that the Act “may result in a material increase in the number of patients using our facilities who have either private or public program coverage,” though it also worried about intended reductions in payments to Medicare providers. On the issue of partial or complete repeal, it also admits that the impact would be “unclear.”
Healthcare is not the only arena in which corporate interests may be having second thoughts about their direct (as with the Kochs) or indirect encouragement of junkyard dog-style conservatism. Tea party types in Congress recently decided to challenge the continued existence of the Export-Import Bank, an institution that has long been relied on by major companies such as Boeing and General Electric to sell their big-ticket items to foreign customers.
That move features prominently a New York Times front-page story reporting that some business interests are wondering if they made a mistake in heavily supporting the far-right Republicans who seem to call the shots on Capitol Hill these days. The article quotes a spokesman for the Club for Growth, which promotes “economic freedom” as admitting that “free market is not always the same as pro-business.”
Hopefully, those are not the country’s only choices. If we’re lucky, the clash between these two tendencies will open up more space for changes that promote economic and social justice while putting restraints on both the market and the corporations.