How will the US Supreme Court rule on health reform?BMJ 2012; 344 doi: https://doi.org/10.1136/bmj.e2626 (Published 11 April 2012) Cite this as: BMJ 2012;344:e2626
All rapid responses
My vote is that the Supreme Court will rule that the legislation is constitutional. However, I would look elsewhere than the Commerce clause.
If you read the Preamble of the US Constitution, one might argue that it actually requires something like the health reforms that are before the Court. Though people quote the Preamble, they seem to forget that it is the underpinning enabling logic of constitutionality of the Constitution itself. In that respect it frames intent that is subsequently captured and in that respect comprises the irreducible and immutable elements of the Constitution.
The Preamble refers to 'promote the general welfare'. While I believe this has never been invoked in a judgement, it does strike me as relevant. To promote does not, of course, necessarily mean to provide, but I doubt it means to ignore.
The failure to ensure some provision of generally available healthcare seems to me to be failure of the People in the context of their constitutional duties to promote the general welfare, rather than the welfare of some. It is from this distinction that political debate emerges, in particular that some people who cannot pay will become 'free riders' on those who can, but that is the essential notion of welfare.
It is my view is that is hard to promote general welfare and exclude free riders, who must benefit if general welfare is promoted -- otherwise you define 'general welfare' as pertaining only to those who can avail themselves of it, which is a contradiction.
This consideration has been cited, though, in cases, suggesting that the term "general welfare" was thought to include the health of people at the time the language was drafted but without the contemporary meaning.
My guess is that Locke who influenced the wording and framing of the US Constitution would probably have agreed. It is hard to imagine efforts to promote a "more perfect union" also failing to promote 'general welfare' as that would lead to a more perfect union for some.
While Locke et al may not have imagined universal healthcare at the time, they did understand the principles involved.
Competing interests: No competing interests