Health Care's Public Option: The "Phoenix" That Needs Resurrection

Miles has a professional background as a health care attorney and during that time he has published a 4-volume treatise as lead editor and a book in health law, and medical and hospital litigation. He has also written over 160 pieces for Huffington Post, and other publications, including op-eds in USA Today, Chicago Tribune and, last December, in the NY Times.

Miles has a professional background as a health care attorney and during that time he has published a 4-volume treatise as lead editor and a book in health law, and medical and hospital litigation. He has also written over 160 pieces for Huffington Post, and other publications, including op-eds in USA Today, Chicago Tribune and, last December, in the NY Times.

Humpty Dumpty sat on a wall

Humpty Dumpty had a great fall

All the king’s horses and all the king’s men

Couldn’t put Humpty together again.

Remember the famous nursery rhyme, “Humpty Dumpty”, where an egg falls off a wall, shatters to pieces, and can’t be put back together again?  In case you forgot, it is scripted above. 

While watching the third Democratic presidential debate in Houston last week, I noticed there was a stark contrast between the likes of Sen. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Ma.) on the first topic that was hotly debated: health care. They both want to see the entire health care system eviscerated for a Medicare For All plan versus the likes of former Vice President Joe Biden, who advocates for building upon the present Patient Protection and Affordable Care Act, also known as “Obamacare,” by adding a public option.   

The other candidates were somewhere in between with universal care not far from their lips.  But as opposed to the child’s nursery rhyme where old Humpty Dumpty could not be put back together, the public option is worth resurrecting because moderation --- not tearing the fabric of the American health care system apart --- is what should win the hearts and minds of a majority of Americans now.  After all, do we want to see what the Trump administration has done to our country done to our health care system in one legislative swoop?

But first, a little history.

 The philosophical underpinning to accessing and affording health care is now couched in terms of health care being a right for all Americans, a premise that I have been writing about in published pieces, including for this site, for over a decade when it wasn’t in vogue to do so as it is now. Even before Teddy Kennedy spoke about it at the 2008 Democratic convention and then candidate Barack Obama in a debate with John McCain in Nashville in 2008 when he said health care should be a right, and not a privilege or responsibility.

 When Obama became president, he wanted as a centerpiece of his health plan a public option, an option to purchase health insurance through an entity established with either seed money from the government, or a government-run program that would compete with the private market.  The result would be to reduce costs for health care insurance products since if private insurers wanted to retain market share with a publicly run entity, they would have to compete by lowering costs too.  Such an option is something I strongly advocated for when I was asked to come to Congress to advise some of its Members as the ACA was being developed.  But Obama did not have enough “muscle” to have it become part of the law.

Strangely enough, its replacement became the individual mandate that required all Americans to purchase insurance less they be faced with a penalty or tax (called a shared responsibility payment), and which the movers and shakers of the mandate and its penalty either eliminated the penalty with the Tax Cut and Jobs Act of 2017 or are presently in court in the 5th Circuit U.S. Court of Appeals with Trump’s backing, wanting the entire ACA declared unconstitutional because the individual mandate is unconstitutional.  More on this lawsuit in a moment.

 On September 12, the Henry J Kaiser Family Foundation published survey results in which respondents were asked that, if given a choice between building on the ACA or replacing the private insurance system, 55% supported the more incremental approach rather than a sweeping change.  As its results further showed, 87% of Democrats surveyed support a public option, while 77% support a Medicare for All approach. 41% of Republicans also favored a public option and 20% support Medicare for All. 

As Biden forcefully put forth in the recent debate, what he wants to do is not disrupt health insurance coverage for the millions of Americans that have it through the private market by starting all over again with Medicare for All, but to allow access and affordability to such coverage. Biden knows that these principles are the keystones to what Americans really want. The Kaiser survey seems to suggest just this.

  As for the pending lawsuit, Texas v. U.S., awaiting a decision by the 5th Circuit, a number of “red” states and two individuals sued the government shortly after the 2017 Congress passed the tax cut and jobs act, which, again and in part, eliminated the penalty, or tax, if one did not purchase insurance as required by ACA’s individual mandate. The lower federal court (Judge Reed O’Connor) decided in a 50+ page opinion back on December 14, that the individual mandate was unconstitutional as the states that sued wanted, but, incredulously so, also declared that this provision was inseverable from the rest of the ACA and thus declared the entire act unconstitutional.  This decision among many, including noted scholars, was described as “lawless”.   

 This writer joined these forces. While typically the Department of Justice through an administration’s direction supports a federal law that is challenged in court, the current president instructed his Attorney General to side with the states that want to see the ACA obliterated entirely. Judge O’Connor’s decision was appealed by other states, a.k.a. the “blue” states led by California, and the U.S. House that he allowed to intervene before ruling.  Oral arguments took place this past July 9 before a panel of three appeals judges in the 5th Circuit, one appointed by George W Bush, one by Jimmy Carter and one by Trump. A decision, expected sometime this fall, awaits.

 But circling back to the health plans vociferously debated most recently by the democratic candidates running for president, if the ACA survives the present court challenge, the public option, like the flight of the Phoenix, needs to be resurrected, for it is the best approach ensuring that health care remains affordable and accessible and thus remains a right for us all. 

Humpty Dumpty can, indeed, be put back together again.