By Kevin Sack, New York Times, March 27, 2012
After a day punctuated by seeming skepticism from Supreme Court conservatives about the constitutionality of requiring Americans to buy health insurance, the justices will turn their attention on Wednesday to how much of the 2010 health care law might survive if they strike down that mandate.
If the court invalidates the insurance requirement, the White House and a divided Congress would be left to pick up the pieces. Their first steps toward finding alternatives to reduce the number of uninsured in the country — nearly 50 million, or one in six Americans — would depend heavily on how far the Supreme Court goes, and on the balance of power in Washington after the November elections.
Lower courts that have ruled against the insurance mandate have adopted a spectrum of positions. Judge Roger Vinson of Federal District Court in Pensacola, Fla., who first ruled in the case now before the Supreme Court, invalidated the entirety of the Affordable Care Act, writing that the insurance mandate could not be legally separated from the rest of the expansive law. He stayed that judgment until the law could be reviewed by higher courts.
The Court of Appeals for the 11th Circuit in Atlanta upheld Judge Vinson’s invalidation of the insurance mandate. But it significantly scaled back the impact by concluding that only the mandate itself would die.
The Obama administration will argue on Wednesday for a middle ground that is driven by economic assumptions as well as legal analysis. If the mandate falls, the Justice Department has said, two politically popular provisions must die naturally with it — those that prohibit insurers from declining coverage or charging higher premiums because of pre-existing medical conditions.
The economic argument is that it would be unreasonable to expect health insurers to cover the sickest Americans if the healthiest ones are not required to pay for coverage and broaden the actuarial pool. “If you are told that you can buy insurance anytime, you would wait until you got sick and buy it en route to the hospital,” said Neal K. Katyal, the former acting solicitor general, who argued the health care case before the 11th Circuit.
But there also is a clear political component to linking the insurance mandate to the insurance regulations. A poll taken this month by The New York Times and CBS News found that while more Americans disapprove than approve of the law’s insurance requirement, the abolition of pre-existing condition exclusions is wildly popular, with 85 percent saying they supported it.
The health care law began requiring that insurers cover children regardless of their health in September 2010, but the ban would not apply to adults until 2014.
In court on Wednesday, the challengers to the law will argue that the entire act must fall along with the mandate. The court has appointed an outside lawyer, H. Bartow Farr III, to argue the 11th Circuit’s position, that the mandate could fall alone.
Massachusetts has a law similar to the one passed in Washington, including individual mandates, and when the federal law was being debated, that model was considered a moderate compromise between the full single payer, government sponsored and operated, universal access model (as in Canada) and the more "private enterprise" model, the favourite of the Republican party, operated exclusively by the insurance companies.
With some 50 million uninsured in the U.S. there will be strong political pressure to find a way to "cover" those people, should the individual mandate be rendered unconstitutional. And the question seems to be that old chest-nut, that the government cannot require the citizen to purchase anything, even if that purchase helps to sustain a national program where prior conditions cannot be used by the insurance companies to deny coverage. It is really only by requiring individual mandates that a national health care system can be fully sustained economically.
Everyone will be watching Justice Kennedy, given his reputation as the "swing" vote on many issues, and the otherwise evenly divided court among the remaining eight.
Like others, we urge the Supreme Court to find the mandate legally acceptable and permit the law to continue its staged implementation, already having provided health care for young people under 26 who are still living 'under their parents' care'.
Another interesting piece of the existing law is that for those who have no money, the federal government will subsidize their purchase of health care insurance, for those up to 4 times the poverty level, and as these people start to earn income, the government subsidy will decline. I wonder how many people know about this humane and rational provision.
The U.S. touts its earned reputation as an innovator, and as an economic magnet for both investors and entrepreneurs, and such a reputation is and will only be enhanced by a national health care program that, far from enhancing the "nanny state" among those 'red necks' who despised all aspects of government intervention, instead provides the kind of coverage that helps to sustain the entrepreneurial ventures and the families that depend on their success, without adding the burder of uncertain health care, in whatever kind of emergency.
We have already seen how capacious and voracious are the private insurers through the many stories of denied coverage, and family tragedy, due to pre-existing conditions. We have also seen the stories of individuals who have to choose between food/rent for their families and health care access, and, of course, their lives have been significantly reduced and sometimes even lost, in that quagmire.