New Republic: A Twist In Obama Health Care Trials

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President Barack Obama speaks with doctors in the Rose Garden at the White House on Oct. 5, 2009 in Washington, DC. i i

hide captionPresident Barack Obama speaks with doctors in the Rose Garden at the White House on Oct. 5, 2009 in Washington, DC.

Win McNamee/Getty Images
President Barack Obama speaks with doctors in the Rose Garden at the White House on Oct. 5, 2009 in Washington, DC.

President Barack Obama speaks with doctors in the Rose Garden at the White House on Oct. 5, 2009 in Washington, DC.

Win McNamee/Getty Images

Jonathan Cohn is a senior editor at The New Republic.

The legal case against the Affordable Care Act may have just become weaker. And it's not because of anything that happened in Washington. It's because of something that happened in Florida: The filing of bankruptcy papers by Mary Brown, who until recently owned and operated an auto repair shop near Pensacola.

Brown's story, which the Wall Street Journal reported in Monday's editions, seems genuinely heartbreaking: From the sounds of things, the twin shocks of the recession and the Gulf oil spill basically killed her business. One former employee tells the Journal that Brown fought "every day" to keep the shop going. Another describers her as "professional, truthful, honest" and adds that "she really took care of us."

But Brown isn't just any old small business owner. She's the lead plaintiff in the lawsuit against health care reform that the National Federation of Independent Businesses (NFIB) and 26 states filed in 2010. Yes, that's the same case the Supreme Court just agreed to hear – the case that could determine whether Obamacare, as it's come to be known, will stand or fall.

The Journal story – the product of excellent reporting by Emily Maltby, Vanessa O'Connell, and Jess Bravin* – focuses on the new legal issue that Brown's financial situation raises: She may no longer have the standing to sue. According to the article, the bankruptcy makes it more difficult for Brown to claim that the Affordable Care Act will harm her interests, since she can no longer claim it will damage her business. In addition, the article states, her financial situation makes it more likely she wouldn't even be subject to the mandate – again, calling into question whether she can claim the law would harm her.

I'm not a lawyer, so I'm really in no position to adjudicate the standing question. Among other things, this particular lawsuit has another named plaintiff. NFIB certainly thinks the case can go on, just as before.

But the more interesting and, to my mind, more important implication is what Brown's bankruptcy says about the actual merits of the lawsuit – and, ultimately, the legal rationale for the Affordable Care Act. Based on available information, it may illustrate almost perfectly why the law is necessary – and constitutional.

The legal case against the health care reform really boils down to one question: Does the government infringe upon your freedom when it demands that you obtain insurance or pay a penalty, as long as you have the money to afford it? Or is the government merely asking you to help bear the cost of medical care you will inevitably consume – a cost that, otherwise, the rest of society would have to pick up, chiefly in the form of higher taxes, higher insurance premiums, and lost income?

Brown adheres to the former point of view: "No one has the right to try to control how you spend your money," Brown told the Journal. But the bankruptcy filing that she and her husband made, and which TNR obtained via online court records, lists among the couple's unsecured creditors several providers of medical care – a hospital and a physician group in Florida; an anesthesiology group based in Mississippi; and an eye care center in Alabama. The total, based on the court filing, appears to be a little less than $5,000. The bankruptcy filing also indicates that the couple has $400 in expected monthly "medical and dental" expenses.

I can't be sure how those bills were generated. And I certainly don't want to speculate on whether Brown and her husband will end up paying part or all of those bills, as I have no way of knowing. (Brown's bankruptcy attorney declined to comment when reached by phone and the lawyer in the federal suit referred calls to the NFIB, whose spokesman said she was unable to comment on the specifics of Brown's situation. I also tried calling a number in Florida that appears to be Brown's, based on a web listing. A recording said the mailbox was full.)

But this much I do know: Bankruptcy proceedings frequently leave doctors and hospitals with unpaid bills. When that happens, doctors and hospitals write off the cost as "uncompensated" care – and pass along at least some portion to the rest of society, in one form or another. Some credible estimates have suggested uncompensated care adds up to more than $40 billion a year.

*According to the Journal story, it was a call to the plaintiff attorneys by Journal reporters that prompted the attorneys to notify the Solicitor General's office of Brown's bankruptcy status.

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