Obamacare and the Supreme Court

On Monday the Supreme Court will begin hearing three days of oral arguments over President Barack Obama’s health care overhaul, the Patient Protection and Affordable Care Act. Opponents say the law is unconstitutional; their chief argument is that Congress does not have the power to force unwilling Americans to buy health insurance or pay a fine. If the Court rules that the health insurance mandate is unconstitutional, they will decide whether the rest of the act can take effect. They will also hear arguments over whether the law goes too far in coercing states to expand the federal-state Medicaid program for low-income people. It is not clear to me whether this last question is related to the first (the mandate issue) or is separate.

With regard to the health insurance mandate, the justices may strike down the provision as unconstitutional, they may decide that the mandate falls within the powers granted to Congress by the commerce clause of the Constitution and allow it to stand, or they may dismiss the case without a binding ruling by deciding that the issue is premature, since penalties have not yet been paid (and will not be levied until 2015). Although the Court may decide these issues at any time, they likely will not produce a decision until June.

For the record, I believe that the health insurance mandate is both constitutional and good for healthcare. Provisions in this law have already benefited many individuals and will benefit many more in years to come.

But what if the Supreme Court disagrees with me and decides the individual mandate is unconstitutional? Would this totally put an end to the health care reforms we have passed in the last three years?

Absolutely not.

First, the Affordable Care Act has started moving our country's health system away from one that pays for volume and toward one that pays for value. If the Supreme Court were to strike down the entire act (as opposed to just the individual mandate), it would slow this change in direction no doubt, but it cannot reverse it.

Second, the health-care industry had been moving toward value-based payments even before health reform passed. The Affordable Care Act played an important role by signallying that the federal government is also headed in that direction, but this movement will continue regardless of the Supreme Court decision. The insurance companies are all for it.

Third, last year, authorized by the Affordable Care Act, the Obama administration announced a $500 million program called Partnership for Patients aimed at reducing hospital-acquired infections, errors and other preventable complications. The act also requires Medicare to begin posting online each hospital’s rate of certain medical errors and infections, and to cut payments to hospitals with the highest rates. Consequently, hospitals across the country are working to reduce preventable hospital errors. The Supreme Court decision will not cause anyone to rescind this effort.

Fourth, overturning the law would release insurers from the federal rule regarding expanded coverage (such as for young adults). But (1) nearly all states, which regulate many forms of private insurance, have already codified the young-adult rule at the state level, and (2) many insurance companies would now find it unpalatable to revert back to their original policies.

Bottom line. I hope the Supreme Court will uphold the constitutionality of the health insurance mandate. If they strike it down, I hope they will leave the rest of the Affordable Care Act intact. But even if they nullify Obamacare entirely, Obamacare has already helped to bring about the most significant improvements in our health care system in decades. The Supreme Court may be able to slow this advancement with a wrong decision, but it will not be able to turn back the clock.