US Independence Day is a celebration of American freedom from Britain. It is perhaps fitting that the one issue that has dominated American politics in the past week is one which exemplifies differences between Britain and our cousins ‘across the pond’. The US Supreme Court decision in National Federation of Independent Business v Sebelius on 28 June 2012 has – essentially – upheld ‘Obamacare’.

The Patient Protection and Affordable Care Act 2010 has two parts. First, there is the so-called ‘individual mandate’ which requires individuals who do not already have health insurance to buy it. By 2014, those who ignore this and remain uninsured have to make a payment to the federal government. The act itself calls this a ‘penalty’. Secondly, Medicaid is expanded. Currently, Medicaid provides federal funding to the states to help certain vulnerable groups obtain healthcare: pregnant women, the poorest, the elderly, and the disabled. The expansion presses states to provide Medicaid to adults who earn up to 133 per cent of the defined ‘federal poverty’ level. If a state does not comply with this requirement, it loses all its Medicaid funding.

By a 5-4 majority, the US Supreme Court found that the first part of the act was lawful, the second part unlawful. Thus, the ‘individual mandate’ is upheld, while the Federal government is barred from withdrawing Medicaid funding from states if they refuse to expand their programmes. States can, therefore, choose not to take part in this aspect of the reforms, and will not be penalised.

The key issue on healthcare reform in the US is freedom – freedom for the individual not to be forced into paying for insurances, and freedom for the states in not having to participate in the federal programme. Britain does not have the same concern about these issues: rather, the principle of a universal health service, free at the point of delivery, and based on need rather than wealth, is so fully accepted that no major political party can afford to challenge it in a general election.

That is not to say that freedom was not an issue when the National Health Service was set up. Doctors and consultants balked at the loss of professional freedom: Clement Attlee’s minister of health and housing, Aneurin Bevan, had to concede that NHS consultants could continue to continue to accept privately paying patients. In cabinet, former London county council leader Herbert Morrison argued against taking away power over healthcare provision away from local authorities. But these debates are minor in comparison with the modern-day healthcare debate in the United States.

The key factor in upholding the ‘individual mandate’ is that the ‘penalty’ for non-compliance can be defined as a tax. As Chief Justice John Roberts puts it, ‘The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.’ As such, it is lawful. But the Supreme Court’s dissenting judgement is very strongly worded: ‘To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.’  It is added: ‘The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying non-consenting states all Medicaid funding. These parts of the act are central to its design and operation, and all the act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.’

Many battles still lie ahead, but the judgement marks a great victory for President Obama. Yet the key factor is the decision of the conservative Chief Justice, John Roberts, to side with the four liberal justices. There have been occasions when the Supreme Court has divided along political lines: in Bush v Gore in 2000, the Supreme Court’s decision to halt the Florida recounts handed the presidency to George W Bush. Uncomfortably, the court was divided 5-4, with the majority being all the Republican appointees, and the minority all the Democratic appointees. There was a substantial element of this overt political division in the ‘Obamacare’ judgement. Obama’s own appointees Elena Kagan and Sonia Sotomayor joined Clinton appointees Stephen Breyer and Ruth Bader Ginsburg in the majority judgement. Reagan appointees Antonin Scalia and Anthony Kennedy joined together with George HW Bush appointee Clarence Thomas and George W Bush appointee Samuel Alito.

The ghost of Felix Frankfurter may be stalking the current Supreme Court Chief Justice. Judge Frankfurter was concerned about the Supreme Court leaving its judicial role and entering ‘the political thicket’ and there is the same concern in the Chief Justice’s judgement: ‘Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.’  It has clearly been a tortuous decision-making process:  CBS News is claiming the Chief Justice Roberts changed his mind after originally siding with the conservative justices.

This will not, however, end the debate. Rather, it will fuel it. Whether the ‘individual mandate’ is a ‘tax’ or a ‘penalty’ may seem to be a question of semantics, but it really matters. President Obama calls it a ‘penalty’, and, to the chagrin of many in the Republican party, Republican presidential contender Mitt Romney has had to do the same, on the basis of the healthcare system he himself put in place as governor of Massachusetts. November’s presidential election may tell us much about voters’ judgement on Obama’s stewardship of the economy, but it will also tell us something very significant about the modern-day American attitudes to healthcare.

—————————————————————————————

Nick Thomas-Symonds is the author of Attlee: A Life in Politics published by IB Tauris (2010). He writes the Labour history column for Progress tweets @NThomasSymonds

—————————————————————————————

Photo: porchlife