The Ethics of the King v. Burwell Decision: "The Way We Create Morality"

July 10th, 2015

Reaction continues to roll in from across the healthcare community on the Supreme Court’s King v. Burwell decision.

From an ethical perspective, John Banja sees the decision as an example of “the way we create morality.”

“I really believe social justice issues we make up as we go along,” says Banja, PhD, professor in the Department of Rehabilitation and medical ethicist at the Center for Ethics at Emory University in Atlanta. Banja is also on the editorial board of Medical Ethics Advisor. “We keep the good ones [laws] and get rid of the bad ones. Prohibition didn’t work out so well in the 1920s, but Medicare and Social Security seem to be working pretty well.”

Banja also finds interesting the ideology and approaches the Supreme Court justices bring to decisions with great social effects. “[Justice Antonin] Scalia is a self-proclaimed literalist and interprets the Constitution and statutes exactly as they were written,” he says. “He sees the sentence about ‘exchanges established by the state’ and as far as he’s concerned that’s the end of the matter. [Chief Justice John] Roberts is such an interesting guy on the Affordable Care Act stuff. He’s a pragmatist, contextualist, and consequentialist on how a judicial decision [against subsidies] would disturb the insurance market with the death spiral; a strike down of the subsidies would leave insurance plans with more sick people and fewer healthy people as premiums would go up as healthy people leave the market, leaving only sick people. It’s an interesting way for someone with a lot of conservative credentials to think.”

While Banja welcomes the court’s ruling, he approaches the future of U.S. health insurance with caution. “This is one of the big problems with the ACA: We’re going to have to figure out ways to keep healthcare inflation down,” he says. “We’ll have to figure out ways to constrain costs in healthcare or the costs will keep going up in society. There are some very disturbing statistics put out by various groups – they project that in 40 years, we’re going to be spending from 37 to 43 cents out of every dollar on some kind of healthcare spending. The bottom line is that it’s simply unsustainable.”

One major factor in inflation, he says, is the aging Baby Boomer population that is using more and more healthcare resources and living longer. “It’s a vicious catch-22 or spiral that the longer you live, the more [resources] you use and the more you have to pay for it, and the availability problem looms large.”

Other healthcare groups are also expressing reservations over high utilization. American College of Emergency Physicians President Michael Gerardi, MD, FAAP, FACEP, said in a statement that while millions of Americans were kept from losing insurance, there is still a burden on the country’s emergency departments.

“High-deductible plans with high co-pays for emergency department visits may dangerously discourage patients from seeking urgently needed care,” he said. “In addition, recent drastic and precipitous reductions in reimbursement for out-of-network emergency care end up shifting costs to underinsured patients and the physicians who treat them at unreasonably discounted rates. This cost-shifting has allowed insurance companies to reap large profits at the expense of patient care.”

“Emergency departments provide incredible value to America. We care for 136 million patients each year with only 4 percent of the nation’s health care dollar, according to the CDC,” he continued. “And emergency visits will continue to increase for many reasons, including our aging population and primary care physician shortages. Emergency departments are facing soaring demands, and we must have adequate resources.”

As the debate over the Affordable Care Act rages on, only in the future will we know if the legislation was a success or failure, Banja says. “The only ones who will really know if it’s right are the historians in the year 2115, and they’ll know if it worked out well or if it was a monstrous failure,” he says. “We have to accept the fact that these [laws] are experimental. We will roll with the punches.”