In 2006, San Francisco enacted a landmark city ordinance that ensures access to affordable health care for all San Franciscans. Under the San Francisco plan, employers must pay a tax on each hour worked by one of their employees, but they receive a dollar-for-dollar credit against this tax for any amount paid by the employer to provide health care to those employees. Thus, employers who provide adequate health coverage to their workers are effectively exempt from the tax. Money collected through the tax is used to support a program that provides health care to low and moderate income San Franciscans without health insurance.
Unfortunately, the restaurant industry doesn’t much like ensuring adequate health care coverage for their workers, so they are now asking the Supreme Court to strike down the San Francisco plan.
The crux of the industry’s claim is that a thirty-five year-old federal law governing employee benefits gives them total immunity from San Francisco’s ordinance. Although this law was enacted to protect workers who previously had been victims of unreliable pensions and employer-provided health plans, conservative judges have read the 1974 law to fetishize uniformity in favor of protecting workers’ rights. Indeed, although the Ninth Circuit court of appeals recently upheld the San Francisco plan, eight right-wing judges protested that the court’s decision could place the nation on a slippery-slope towards affordable health care throughout America’s cities:
“In my view, if our decision in this case remains good law, similar laws will become commonplace, and the congressional goal of national uniformity in the area of employer-provided health care will be thoroughly undermined, with significant adverse consequences to employers and employees alike,” [Judge] Smith wrote. He was joined by Chief Judge Alex Kozinski, and Judges Diarmuid O’Scannlain, Andrew Kleinfeld, Richard Tallman, Jay Bybee, Consuelo Callahan and Carlos Bea.
Sadly, the restaurant industry’s claim that it should be immune from San Francisco’s ordinance could receive a very friendly audience in John Roberts’ Supreme Court. Thanks to a series of Supreme Court decisions interpreting the same 1974 law the restaurateurs are relying on, the health insurance industry already enjoys sweeping immunity from the most basic laws protecting ordinary Americans–because of these Supreme Court cases, employer-provided health plans enjoy total lawsuit immunity when they wrongfully deny coverage to one of their customers:
Consider the case of Phyllis Cannon, who died of leukemia after her insurer refused to cover an essential transplant, or that of James Lind, a construction manager with Multiple Sclerosis who was able to continue working, until his insurer suddenly refused to pay for the prescription that kept his MS at bay. Cannon, Lind and many like them were told the same thing by the courts: it does not matter if your insurer broke the law; we cannot help you.
Similarly, a 2008 Supreme Court decision declared that the makers of dangerous medical devices are immune from state law when their defective products injure or kill a patient, and the banking industry is claiming broad immunity from state investigations into their illegal practices in a case currently pending before the Supreme Court.
Americans may have elected a progressive President and a progressive Congress last November, but our Supreme Court is firmly rooted in the era of George W. Bush. Hopefully, Congress will keep this in mind as they work to reform health care, and will send a bill to the President’s desk that is carefully drafted to resist the Court’s inevitable attempts to dismantle health care reform. If they don’t, they risk letting John Roberts tear down what Barack Obama has worked so hard to build.