Sometimes
what is implied and inferred can be as important as what is stated.
In this Article, I argue that the political debate that preceded the
enactment of the Patient Protection and Affordable Care Act (PPACA),
as well as the legal debate that now swirls around the question of its
constitutionality, mask a foundational question about national identity.
PPACA, of course, does not literally constitute or reconstitute citizenship
(although it does require legal residence as the price of admission).
But it creates the potential for broad public conversation—as has
never before occurred in the United States—regarding the question
of what the relationship should be between membership in the American
community and meaningful access to health care.
At
face value, PPACA primarily seeks to make the individual and small-group
health insurance markets rational and workable, to fill the enormous
gap that has existed in coverage, and to create insurance exchanges
to regulate quality and police access. Upon full implementation,
it will achieve nearly universal, but also probably quite uneven, coverage
and will perpetuate a deeply fragmented model of social insurance.
If one imagines the health care system as a political domain, with the
various institutions and subsystems as components, PPACA is less like
our Constitution and more like a reinvention of the Articles of Confederation.
Under PPACA, health insurance in the United States will remain a federated
collection of risk pools, located in workplaces, public systems, and
the new exchanges.
Nonetheless,
the debate that has accompanied PPACA’s adoption is about something
bigger than spending curves, comparative effectiveness, or even medical-loss
ratios (not that any of those should be considered trivial). The
deep structure of this hyper-technical statute gestures to the existence
of a health care universe that, in Habermasian terms, could be its own
lifeworld. For persons with chronic diseases, the
health care system truly becomes a world unto itself. For others,
it may be more like a foreign country visited for an intense but brief
period of time, or perhaps one to which we pay little attention.
Although the internal operations of the health care universe are seldom
thought of as political, its power is such that, upon entry, it may
bring us life or death, profit or poverty, autonomy or dependency.