Fresh off a very successful year of predicting the future in 2011, I now find myself forced to once again risk my laurels, peer into my crystal ball, and tell you what will happen in the world of bioethics in 2012. What I foresee hurts my eyes and my heart, but a prophet must be honest. Please remember, the following predictions are what I see happening. They do not reflect what I want to happen.
Affordable Care Act, aka Obamacare
President Obama has not exactly been “The Bioethics President.” For the most part, his administration has seemed to downplay bioethical controversies and agendas.
The one notable exception—to use a much understated word—was passage in 2010 of the Affordable Care Act (ACA), or Obamacare, as it is generally known. The ACA is truly a transformative law. If it goes into full effect, it will alter in predictable and unforeseen ways the federal government’s relationship to the people, for better or for worse—depending on one’s point of view—centralizing the control over health care coverage and funding into the federal bureaucracy, and perhaps setting the stage for a future “single payer” type system throughout the country.
But Obamacare is not a done deal. It remains unpopular in most opinion polls, with some showing a majority for repeal. It is also mired in legal wrangling, with a case to be heard this spring in the Supreme Court of the United States to determine whether the law is, in whole or in part, unconstitutional.
So what will happen to Obamacare this year?
Prediction 1: Obamacare will not be repealed legislatively in 2012. Well, duh. The current government won’t repeal it, and the next one won’t come into being until 2013. Okay, okay. I’ll get onto something you don’t know.
Prediction 2: Obamacare’s Individual Mandate Will Be Declared Constitutional. This is the most important issue facing bioethics for 2012, so without turning this essay into a law review article, please let me explain my reasoning. The ACA legally requires all Americans to have health insurance or pay a penalty fine (a tax, according to the administration), known for purposes of discussion as the “individual mandate.” The argument over the individual mandate essentially boils down to apples versus oranges, law versus policy.
That should mean the Supremes will rule against the mandate, right? No. Let me explain.
The Supreme Court has vastly expanded the power of the federal government since the 1930s. In so doing, the justices have often based their decisions as much on policy as on law—and then fashioned legal justifications to back up their decisions (which, in turn, become springboards for further federal expansion). Some call this phenomenon “judicial legislation,” but we won’t get into that here. Moreover, the justices generally come from what is sometimes called the “ruling class,”—people who graduated Yale, Harvard, Princeton, etc.—people who have faith in “experts” and technocratic solutions to societal problems. The rulings of the Court on controversial social and political issues often reflect the views of this subset of Americans more than those of the general population (not that the opinions of either should be relevant). While polls generally show a majority of Americans opposing Obamacare, the ruling class tends to support it.
With the above in mind, I believe the majority of the Supreme Court will rule that Obamacare’s purposes are laudable, that universal coverage is equitable and necessary for the country’s future, and that since the mandate is a necessary element of making the new law work, it is constitutional. That may sound like bootstrapping, but there it is.
My big clue was a November 2011 decision validating the individual mandate written by conservative Reagan-appointed Appeals Court Judge Lawrence Silverman. To wit: “The right to be free from federal regulation is not absolute and yields to the imperative that Congress be free to forge national solutions to national problems.” That’s policy, baby! Moreover, it encompasses a philosophy that places technocratic problem-solving above upholding limited government. With the coming decision, a new era will have fully dawned for the United States of America—even if Obamacare is later legislatively repealed.
Prediction 3: The Supreme Court Ruling Will Turn Obamacare Into One of the Election’s Biggest Issues: With the Supreme Court legally validating Obamacare, the law will become a huge political issue in the 2012 election. But even though majorities of people oppose the law currently, this will not redound to President Obama’s substantial detriment. To the contrary, people like a winner. Besides, many people today believe that what is “legal” is also “right.” Thus, the Supreme Court’s ruling will improve the law’s popularity, or at the very least, make people resigned to an Obamacare future.
Prediction 4: Obamacare Opponents Will Not Have Sufficient Electoral Success to Repeal the Law Legislatively in 2013: The only way Obamacare will be fully repealed in 2013 is for all of the following to transpire: the president is not reelected; the law’s opponents win a supermajority in the Senate (filibusters, don’t you know); and, opponents win the House. At most, only two out of three of those will happen. I predict only one.
I thought it was important to explain the bases of my predictions about Obamacare at some length, so I will be very brief in the rest of my prognosticating:
Assisted Suicide: This will be a big year in the assisted suicide battle internationally.
Human Cloning/Stem Cell Research: Stem cell research has lost its punch as a public issue, and I expect 2012 to be very much like 2011. In other words, no new dramatic developments, with the possible exception of a human cloning breakthrough.
Miscellaneous: A few of these, like my IVF prediction, are easy. But I decided to go out on a few limbs:
Well, I’m exhausted and disheartened. But be of good cheer. In answer to Scrooge’s memorable question from A Christmas Carol, these are not the things that must be, but what might be. Facts change and the future remains fluid until it happens. If you don’t like the picture I have painted, work to prove me wrong. Please.
Wesley J. Smith, J.D., Special Consultant to the CBC, is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism and a consultant to the Patients Rights Council.