Justice Antonin Scalia was known for his polarising opinions on fundamental issues in American policy. Yet, his recent dissents in major legal challenges to the Affordable Care Act (ACA) are surprisingly tame given that healthcare policy is rife with complex social questions. Justice Scalia’s analysis in ACA legal challenges, which emphasised textual rather than policy analysis, amounted to a missed opportunity for the whole Court to truly engage with the concept of a human right to healthcare and other questions of healthcare policy.
The USA is the only major, developed nation not to afford universal healthcare to its citizens and to treat healthcare as a commodity rather than a right. This is exemplified by the US’s failure to ratify the International Covenant on Economic, Cultural and Social Rights, which guarantees the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
Although Congress’s 2008 enactment of the ACA (Obamacare) still leaves about ten percent of the population uninsured, it represents a practical and symbolic victory for U.S. healthcare advocates by expanding public, private, and employer insurance systems to 17 million uninsured Americans at a time when 25,000 people were dying annually from no coverage. It also placed responsibility for access to, and regulation of, health insurance squarely in the hands of the federal government, which many believed necessary for a more centralised, universal healthcare program in the future.
The ACA was met with immediate constitutional challenges from conservative opponents. In NFIB v. Sebelius, the Supreme Court heard legal challenges to two critical provisions of Obamacare: the Medicaid expansion that broadened access to healthcare for low-income persons and the individual mandate that reduced healthcare costs by requiring that everybody purchase health insurance. Government subsidies that made private insurance more affordable were also at stake in King v. Burwell. In both opinions, a majority of Justices saved Obamacare’s core mission, though NFIB did substantially weaken efforts towards universality by leaving the states free to decide whether to expand Medicaid.
While human lives and the health of our populous seem to be the makings of great legal debate by a great Court, Justice Scalia’s dissents turn a blind eye to the wider human matters, instead focusing on what most would agree was a complex and inartfully drafted 900-page statutory text. In regulatory cases, Scalia prided himself on being a textualist; any attempt to surmise meaning or intent was judicial overreaching. In NFIB, he says, “[t]he Court today decides to save a statute Congress did not write,” and in King, “[w]ords no longer have meaning” and “[t]oday’s opinion changes the usual rules of statutory interpretation for the sake of the Affordable Care Act.” Had Scalia prevailed in overturning the ACA’s provisions, millions would have lost their healthcare coverage and lives could have been lost. Scalia’s only real mention of this was in oral argument in King where he stated that “[i]f the consequences are as disastrous as you say, so many million people without – without insurance . . . , yes, I think this Congress would act.”
More surprisingly, the majority never clearly acknowledges what was at stake in terms of uninsured rates or human lives in its opinions, or even the symbolism of a step towards a right to healthcare or universal coverage. Perhaps this is a reflection of how far we need to go as a country to recognise healthcare as a right, or perhaps the Court was avoiding claims of judicial activism, though it has often courted controversy in the past, for example, in cases on abortion or campaign finance reform. Or perhaps Scalia’s role on the court – a textualist who destroys laws by focusing exclusively on text – created a dynamic that forced the majority’s hand. Instead of focusing on broader policy issues and why Obamacare ought to be saved, it was placed in a defensive role, forced to show that the law can be read in a way that saves it.
Though Scalia’s approach of remaining true to the text may be his great legacy, it comes at a price. The ACA legal challenges presented a missed opportunity for the Supreme Court to meaningfully engage with broader issues of rights and access in healthcare. These cases add little to encourage a more expansive dialogue, guide our thinking, or foster interaction with global players on the issue of health provision and individual’s entitlements against the state.
Editorial Note: This is the latest post in the OxHRH series on how Justice Scalia’s judicial approach and reasoning has influenced rights-based protections across significant areas of the law.