Analysis: Scalia suggests Congress repeal ER care guarantee


Which is more important: the right to receive emergency medical care or the right to not pay health insurance? 

Associate Justice Antonin Scalia. SOURCE:

If it were up to Supreme Court Justice Antonin Scalia, he would probably choose to end the emergency care guarantee.

Read more: Justices question constitutionality of health insurance mandate

During last week’s oral arguments on the Affordable Care Act, Scalia pooh-poohed the government’s justification that the individual mandate was a proper exercise of the Commerce Clause to address the massive cost shifting that occurs when uninsured people receive medical care that they cannot afford.

“[The uninsured are] going into the [health care] market without the ability to pay for what [they] get, getting the health care service anyway as a result of the social norms…to which we’ve obligated ourselves so that people get health care,” explained Solicitor General Donald Verrilli.

“Well, don’t obligate yourself to that,” Scalia countered. “Why — you know?”

“Well, I can’t imagine…that the Commerce Clause would forbid Congress from taking into account this deeply embedded social norm,” Verrilli responded.

“You could do it,” Scalia retorted.

So instead of requiring the uninsured to obtain health coverage, Scalia would rather fix the cost shifting problem by letting hospitals deny emergency medical care to anyone who cannot pay the full cost of their treatments.

The callous stance taken by Scalia and opponents of the health care law prompted Justice Sonia Sotomayor to ask, “What percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn’t have insurance — do you think there’s a large percentage of the American population would stand for the death of that child…?”

Background on the Emergency Medical Treatment and Active Labor Act

Since Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA) in 1986, all Medicare-participating hospitals are required to provide emergency medical services “without regard to one’s ability to pay.” Failure to comply could result in civil fines or termination of the hospital’s Medicare provider agreement.

The law has allowed millions of uninsured individuals to receive medical care that would have been denied otherwise.

In 2008, the uninsured made more than 20 million emergency room visits, accounting for one-fifth of all ER visits, according to the Department of Health and Human Services. Each uninsured individual consumes on average nearly $2,000 in medical services each year, and much of the uncompensated care costs are shifted to those who have health insurance in the form of higher premiums. Health care spending now take up more than 17% of the nation’s total economy.

The government argued that the Affordable Care Act’s individual mandate was designed to address the cost shifting and to prevent health care costs from soaring out of the control. If the Supreme Court upholds the health care mandate, then nearly all Americans will have to obtain health coverage – through Medicare, Medicaid, CHIP, employer-sponsored insurance, or private plans – by 2014 or pay a tax penalty.

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