Annual Survey of American Law symposium tackles health care reform (VIDEO)

The New York University Annual Survey of American Law’s February 17 symposium, “The Affordable Care Act: The Constitutionality of Reform, Its Implementation and Implications,” put a spotlight on perhaps the hottest-button issue in contemporary American politics as participants addressed the legal and practical issues surrounding the Patient Protection and Affordable Care Act of 2010.

Ezekiel Emanuel, a professor as well as vice provost for global initiatives and chair of the Department of Medical Ethics & Health Policy at the University of Pennsylvania, kicked off the daylong event with a keynote address. Emanuel was founding chair of the Department of Bioethics at the National Institutes of Health’s Clinical Center and former health policy advisor to the director of the White House’s Office of Management and Budget leading up to the successful passage of health care reform.

Ezekiel Emanuel“I don’t think we’ve appreciated how important the Affordable Care Act is,” said Emanuel, who has taught at NYU Law as an adjunct professor. “I said to the president on the night it was passed that it was a world-historical event and that he actually should get a Nobel Prize in Economics for it, because it’s really going to have a dramatic effect on the American economy.”

Emanuel pointed out that the latest available figure for annual U.S. health care spending was a staggering $2.6 trillion, more than the GDP of France. “We’ve been saying ‘We can’t go on like this’ forever. So it’s not clear we’re not going to go on like this unless we have a fundamental change. And I think the Affordable Care Act is that fundamental change.”

He identified hospitals and physician services as the most important cost-control target, with costs driven up significantly by the incentive to develop expensive new health care technologies without a corresponding incentive to make it cheaper. Despite such technologies, Emanuel said, “We do not have a high-quality system overall. Obviously there are peaks of greatness in this country unparalleled in the world, but they are peaks. The average is very inconsistent.”

Nevertheless, he argued, as the ACA is phased in over the next decade, by 2020 health care will be vastly improved: all Americans will have access to health insurance, there will be more coordinated care for the chronically ill, and a majority will have interoperable electronic health records to streamline and improve care. Emanuel identified delivery system reforms as essential to long-term cost controls, and enumerated ways to effect them.

Following Emanuel’s keynote, three panels examined different facets of the health care reform legislation spearheaded by the Obama administration. Sylvia Law '68, Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry, moderated the first session, “Is the Patient Protection and Affordable Care Act Constitutional?”

Sylvia Law '68, E. Duncan Getchell Jr., Mark Hall, and Sara RosenbaumPanelist E. Duncan Getchell Jr., Virginia’s solicitor general, argued that state’s lawsuit challenging the ACA before the U.S. Court of Appeals for the Fourth Circuit. In Virgina v. Sebelius he asserted that the act’s requiring all individuals to carry health insurance violated the Constitution’s interstate commerce clause, but the Fourth Circuit did not agree. Virginia’s appeal to the Supreme Court is currently on hold, pending a decision in the hotly anticipated ACA case Florida et al. v. United States Department of Health and Human Services.

“If in fact you are claiming a power that has no principled limits,” said Getchell, “then it seems to me you run up against the prohibition in [United States v.] Morrison where the court said we have always rejected readings of the commerce clause and of federal power that is tantamount to a national police power.”

Conversely, Professor Mark Hall of Wake Forest University School of Law pointed out that the very first Congress required men to own guns for militia purposes, contrary to Getchell’s assertion that requiring citizens to buy something was unprecedented. He also questioned Getchell’s argument that Virginia was targeting only one aspect of the ACA rather than the entire act. Florida’s brief to the Supreme Court in its upcoming case, Hall said, acknowledges that the ACA is “a delicate balance of inextricably intertwined provisions, none of which can survive without the act’s core components.”

The day’s second panel addressed state and federal health care implementation strategies, while the third focused on the economic and business implications of the ACA. In the latter panel, moderated by Cecelia Goetz Professor of Law Sujit Choudhry, participants delved into the fiscal complexities of the health care industry.

Richard Epstein, Laurence A. Tisch Professor of Law, argued that the ACA’s various mandates and requirements result in higher compliance costs and erode the private sector. “When you randomize people across health care insurance plans as this bill does,” said Epstein, “what it means is you deny insurance carriers the ability to specialize in particular subgroups about which they may have some information, so you’re taking a lot of specialized skill and know-how that’s out there and essentially you’re letting it all dissipate.”

Eleanor Kinney, professor emeritus at Indiana University’s Robert H. McKinney School of Law, reflected on the public versus private question. “It’s all very well and good to say the Affordable Care Act has this and that flaw and go on and on, but why is it that we have public subsidies of health care in the first place?... The private sector has not been able to come up, either through insurance or direct delivery, with an affordable product for everybody.... It’s not just this country, it’s almost every country in the world that seems to need to draw on taxpayer funds to support health care for everybody. Why has the market failed in this way?”

Watch the video of the third panel, "Economic and Business Implications of the Patient Protection and Affordable Care Act" (1 hr, 8 min):