…and I missed it the first time ’round, and haven’t seen anyone else call it out, until now.
A New York Times article discusses Anthony Kennedy’s very-swing vote, and how both teams of lawyers composed much of their argument and almost all of their summations to appeal to him. Since Kennedy is always talking about “liberty,” they both tried to present their positions as pro-liberty.
This made Clement wonder: A law that forces you to do things you don’t want to do is pro-liberty?
But anyway. The other lawyer against ObamaCare, Carvin, the one no one is really talking about too much (except to say “both challengers’ lawyers were better than Verrilli) made a pitch to Kennedy that makes a great deal of sense.
“The young person who is uninsured,” Justice Kennedy told Michael A. Carvin, a lawyer for private parties challenging the law, “is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.” Audio: Justice Kennedy’s Questioning of CarvinMr. Carvin responded that the law actually frustrated individual responsibility. “They’re compelling us to enter into the marketplace,” he said, but “they’re prohibiting us from buying the only economically sensible product that we would want, catastrophic insurance.”
This is not about whether catastrophic coverage — didn’t they call that Major Medical, and wasn’t that, until recently, pretty common? — is the most economically sensible coverage.
It is that, actually. But we can’t really argue that point too much in court because the courts are not supposed to evaluate policy responses and decide which is best.
The point is that major medical can certainly be argued to be the best health insurance product for many, or even most (or I’d argue: all) customers, and yet ObamaCare forbids it. Makes it illegal. Strips that liberty to choose away.
Often these questions are about framing. If you frame the abortion question as the mother’s choice as to whether to terminate a pregnancy versus the baby’s right to live, that’s not only a tough question, but many think it’s not a tough question at all — if you frame it that way, they say, it’s not even a question. Abortion should be illegal.
But the court, in framing the question in Roe v. Wade, cast the conflict as between a woman seeking medical advice and treatment versus the state’s need (or lack thereof) to block her from seeking medical advice and treatment.
Woman vs. Baby? Tough question, and baby probably wins.
Woman vs. the State? Um, easy question. Woman wins.
So, Roe v. Wade just ignored the tough question really behind the abortion debate to focus on the relatively easy question — freedom is good, the state should be limited — and decided it that way.
It was easy for them once they framed it to be easy.
Now, ObamaCare supporters would like to frame this case as a choice between two tough options — either we permit this constitutionally-absurd bill, or else millions of people can’t have medical coverage and will suffer and die.
If you frame it that way, ObamaCare has a shot, because most people are anti-suffering and anti-death.
But is that the proper way to frame it?