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A Disgrace Even By Roberts Court Standards

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The effects of John Roberts re-writing the ACA’s Medicaid expansion are felt in Mississippi:

Even the law’s vaunted Medicaid expansion, meant to assist those too poor to qualify for subsidized private insurance, was no help after the U.S. Supreme Court ruled that states could opt out. Bryant made it clear Mississippi would not participate, leaving 138,000 low-income residents, the majority of whom are black, with no insurance options at all. And while the politics of Obamacare became increasingly toxic, the state’s already financially strapped rural hospitals faced a new crisis from the law’s failure to take hold: They had been banking on newly insured patients to replace the federal support for hospitals serving the uninsured, which was set to taper off as people gained coverage. Now, instead of more people getting more care in Mississippi, in many cases, they would get less.

“We work hard at being last,” said Roy Mitchell, the beleaguered executive director of the Mississippi Health Advocacy Program, when we met in Jackson. “Even a dog knows the difference between being tripped over and being kicked.”

This reflects an infliction of pain and suffering and death than was eminently avoidable. If you’ll forgive me for reiterating, it’s nearly impossible to overstate how terrible this decision was. It would be one thing if this denial of access of medical care to millions of people was enforcing some explicit constitutional provision, but it wasn’t. If this judicially invented limitation at least protected some meaningful individual liberty interest it might be a little more understandable, but it doesn’t. At best, the lives of millions of people have been made worse — with consequences up to and including death — in order to prioritize inferential states’ “rights” over human rights.

But here’s the kicker: Sebelius does not even provide any significant protection for state autonomy. Congress remains free to create a Medicaid program that requires everyone up to 138% of the federal poverty line to be covered and makes all Medicaid funding contingent on meeting these conditions.  It simply would have to structure it by formally repealing the previous Medicaid and replacing it with “Medicaid II: The Quest For Ron Paul’s GOLD,” thus evading the Supreme Court’s newly minted requirement that existing funding can sometimes be made contingent on accepting new conditions and sometimes can’t and we’ll let you know ex post facto whether this completely arbitrary line has been crossed. Congress can pursue identical means with identical ends; the ACA’s constitutional Medicaid expansion is not different in any substantive way whatsoever from the hypothetical constitutional Medicaid II. The state interest being protected here doesn’t even rise to the level of being trivial.

The fact that so much misery was created for so little should permanently shame the justices who voted for it. It’s judicial review at its least defensible.

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