Op-Ed: ObamaCare’s Many Victims

A federal court in Washington, DC just handed down the fifth ruling in the ongoing battle over the constitutionality of ObamaCare. Tipping the previous 2-2 decisions in favor of the president’s plan, Kessler’s ruling is being viewed by many Obama supporters as a decisive victory.

Her reasoning is worth a closer look, because it nicely illustrates just how far defenders of ObamaCare are prepared to go in defense of government intrusion. The learned judge offers up  a truly tortured and novel reading of the Constitution’s Commerce Clause, thereby discovering that Congress has the power to regulate the “mental activity” of Americans.

In other words, because not purchasing health insurance is a conscious choice — or, an example of “mental activity” — and because this choice has an effect on the rest of the American public (i.e., abstainers cause the price of health care to rise for everybody else), Kessler believes that choice should be subject to congressional regulation. If that sounds like the beginning of a slippery slope that would give Congress the power to do pretty much anything at all, that’s because it is.


And it’s not just your “mental activity” that’s subject to government overreach under ObamaCare – it’s companies and entire industries, too.

On January 1, an ObamaCare provision called the Medical Loss Ratio (MLR) went into effect. It requires all health insurance firms to spend 80 to 85 percent of what they collect in premiums on patient care. Insurers failing to meet this mandate must pay significant rebates to all policyholders. Experts project that Aetna and WellPoint will have to pay $100 million and $300 million in rebates, respectively.

The MLR requirement supposedly prevents “excessive” premiums. To do so, it conveniently ignores the fact that one size does not fit all in terms of the overhead and fixed costs of providing coverage. Insurers will simply cease to offer  policies where the 80 to 85 percent MLR cannot be met, leaving consumers out of luck. The MLR provision will drive many smaller insurance firms, with fewer economies of scale, out of business altogether.


The government-knows-best overreach extends all the way to life-or-death patient care, as regulators prepare to ration treatments to control costs. Though the FDA is not supposed to take cost into consideration in its drug approval process, there is no question the agency has started down that path.

Take the cancer-fighting drug Avastin, which halts blood supply to tumors and can  extend patient survival by months and in some cases years. Last December,  the FDA voted to repeal Avastin’s approval for treatment of breast cancer. Why? The FDA won’t say so, but the obvious reason is cost. At close to $8,000 per month per patient, Avastin is both the world’s best-selling cancer treatment and one of its priciest. In the end, the FDA felt that the cost-benefit ratio Avastin offered didn’t make the cut.

This is the reality of government intervention in health care: the choice as to whether a treatment is “worth it” will no longer be up to you and your doctor, but rather a faceless federal panel.

ObamaCare’s honeymoon with the public was over before it passed. Even the president and his administration have had to take note. As of last week, the Department of Health and Human Services made the surprising announcement that Medicare Advantage — a program ObamaCare supporters despise because it grants patients the freedom to pick among private insurance options — will not be eliminated this year as scheduled but conveniently after the 2012 elections. Obama is also talking to governors about more waivers for states. And the FDA recently agreed to give Avastin another chance with a two-day public hearing on June 28 and 29.

These concessions to the new political reality after the November 2010 elections are welcome but insufficient. It’s time to abandon this massive intrusion into the lives of individuals and the fate of an entire industry. Officials ought to devote a little of their own “mental activity” to figuring out how to give the American people what they want.

James L. Martin is chairman of the 60 Plus Association, a nonpartisan seniors-advocacy group in its 19th year with a free-enterprise, less-government, fewer-taxes approach to seniors issues. 60 Plus has more than 7 million citizen-activists. Pat Boone, a legendary recording artist, songwriter, actor, and author, is the group’s national spokesman.

Written By James L. Martin and Pat Boone