How We Really Hope the Supreme Court Will Rule on the Affordable Care Act

The Affordable Care Act has finally had its days in court this week.

And commentators who were certain on Monday that the Supreme Court would uphold the individual mandate were just as certain on Tuesday that it would not.  Perhaps they have some special insight into the thinking of the Justices. I don’t.  I’ll just wait for the decision. 

In the meantime, I’m wondering not how each of us thinks the Court will rule, but how we hope it will rule.

The answer isn’t so simple, because we divide into – and often move among – three competing minority camps about health reform in general:

• The Affordable Care Act represents the best compromise for insuring more people while preserving most of our current public/private payer system.
• Expanding reform to a single payer system like those favored by other developed nations would be better. 
• Replacing ACA with a private market-based system is at least worth a try.

If we’re as uncertain as polls cited by the Kaiser Family Foundation suggest, I suppose we all could just close our eyes, vote for Mitt Romney, and assume from his record and rhetoric that we’ll get all three.

But the Court will decide first, so let’s consider the rooting interests of several interested and sometimes overlapping groups.    

If you favor a single payer, “Medicare-for-all” program:

You want the Court to find the individual mandate unconstitutional, but severable from the rest of the bill. 

Why?  The individual mandate was originally the alternative to “single payer,” so you would like to get the individual mandate out of the way.  Then single payer becomes an option again, but only if the rest of the law, including the Medicaid expansion and the consumer protections, remain in effect.  This is because our private insurance market will become too expensive if people use those consumer protections to wait to buy insurance until they are sick.

If you want to reduce the size and scope of the state Medicaid programs:

You want the Court to rule the Medicaid expansion unconstitutional, but the individual mandate constitutional. 

Why?  This combination will most constrain Medicaid growth because lower income people will have to purchase health insurance in the private market.  They’ll qualify for a subsidy, but not for Medicaid.

If you want more universal coverage, but don’t care whether it’s private or public:

You want the Court to uphold the entire law.

Why?  Although philosophically impure, the combination of Medicaid expansions, Medicare cost containment strategies, Medicare tax increases for the wealthy, and subsidized private insurance for the middle class will lead to more coverage, and fewer uninsured.

If you or a child of yours has a chronic condition, such as diabetes, mental illness, or cancer:

You may not care whether the individual mandate is constitutional or not, but if it isn’t, you want it to be severable from the pre-existing condition coverage and community rating portions of the law.

Why?  If the PCIP experience is any indication, you may not want to be forced to buy insurance.  But when you do try to buy it, you don’t want to be denied affordable coverage because of your pre-existing condition.

If you are an early retiree on your former employer’s health insurance:

You want any provisions found to be (1) unconstitutional and (2) not severable from the pre-existing condition and community rating portions of the law to be severable from the rest of the law.

Why?  This could gut much of the law, but not the provisions that subsidize your coverage.  You won’t have to worry that you could either lose your health insurance or be forced to pay a lot more for it.

If you are a Medicare recipient:

You want any provisions found to be unconstitutional to be severable from Medicare expansions.

Why? If they aren’t, you’ll need an immediate bipartisan agreement in Congress to keep your donut hole prescription drug coverage and your free annual check-up in place.

If you want insurance that will cover long term care needs:

You’re already out of luck. 

Why? That provision was axed from the law before it was ever implemented – and you don’t hear anyone talking about restoring it.

And, if you’re okay with denying or capping coverage for pre-existing conditions, allowing insurers to make as much profit on insurance as they can, having gaps in prescription drug coverage for elders, and paying for the sick and uninsured through increased premiums on people who have insurance:

You want the Court to find the whole law unconstitutional.

Why?  That’s where we were when all this began.

Note: Click here for simple explanations about some of the Supreme Court issues that are discussed in this week's column.

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