President Barack Obama's historic health care overhaul divided the nation from the day he signed it into law, and that seems unlikely to change no matter how the Supreme Court rules on its constitutionality.
President Barack Obama’s historic health care overhaul divided the nation from the day he signed it into law, and that seems unlikely to change no matter how the Supreme Court rules on its constitutionality.
Some legal disputes, like the 2000 presidential election, the court can settle. Others rage on, such as abortion. It may take another decade to find the balance between private and public responsibility for health care in America, a nation disdainful of big government yet historically unable to guarantee affordable basic coverage to its citizens.
“Either way it rules, the Supreme Court decision will not end the debate on health care,” said former Senate Majority Leader Tom Daschle, an influential Democratic adviser. “It is, and will largely remain, a debate on the role of government.”
The Supreme Court’s announcement on Monday that it will take up the constitutional challenge to what Republicans deride as “Obamacare,” sets the stage for a decision next summer in the heat of the presidential election campaign.
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But even if the court upholds the law, Republican leaders say “repeal and replace” remains their slogan.
“Job-killing tax hikes on families and small businesses may well be constitutional – that doesn’t mean we would support them,” said Senate Republican Leader Mitch McConnell of Kentucky.
House Speaker John Boehner of Ohio remains committed to repealing the overhaul and replacing it with a Republican plan regardless of the Supreme Court ruling, his spokesman said. “We will continue to work to repeal it,” said Michael Steel.
The administration is dug in, too. Publicly, officials say they’re confident Obama’s plan for covering the uninsured will be upheld to the last comma.
Privately, there’s a Plan B: If the court strikes down the law’s unpopular linchpin – the so-called individual mandate requiring most Americans to carry health insurance – the administration would take whatever’s left and try to put that in place. That includes a major expansion of Medicaid for low income people, a host of new rules for insurance companies, and cuts for hospitals, drug companies and other providers serving Medicare recipients.
So far, the law’s record is mixed. A provision allowing young adults to remain on their parents’ policy until age 26 has been a big success. But the administration had to pull the plug on a long-term care insurance plan that turned out to be financially unsustainable. New programs to help small businesses and people with health problems get coverage have attracted much less enrollment than hoped for. Seniors with high drugs costs are saving money, but some continue to struggle.
The law’s major changes – expanding coverage to more than 30 million uninsured people – are still two years away. The Supreme Court decided to take the case now, after lower courts split and the administration, as well as its opponents, asked for a decisive ruling to clarify the law of the land.
Of four federal appeals courts that have ruled, two upheld the law, one struck down only the insurance mandate, and one punted, saying it is premature to decide the merits until the main coverage provisions take effect in 2014.
Appeals courts in the District of Columbia and Cincinnati that upheld the law found that requiring Americans to carry health insurance – even if intrusive – is within the power of Congress to regulate interstate commerce.
Starting with 2014 tax returns, the law imposes a penalty on those who do not have coverage through an employer or a government program, or through individual purchase. In passing that requirement, a Democratic-led Congress found that the health care system is a major part of the national economy and that insurance can’t work if people can postpone getting coverage until they become sick.
A federal appeals court in Atlanta saw things differently.
Ruling against the administration in a lawsuit by 26 states, that court found that Congress overstepped its constitutional authority by imposing the insurance mandate. The unprecedented requirement to carry health insurance would force average citizens to buy an expensive product from a private company from cradle to grave, the majority said.
The immediate impact of a Supreme Court decision in 2012 is likely to be political.
Upholding the law will be seen as vindication for Obama’s approach to governing, said Robert Blendon, a Harvard public health professor who follows opinion trends on health care. “This is not only an issue of whether or not the bill is constitutional, or what is the best public policy,” said Blendon. “It’s an issue about the judgment of the president.”
At the other end of the spectrum, the Supreme Court could strike down the entire law, validation for Republicans who from the start called it government overreach. But no appeals court has gone that far.
A mixed verdict would create its own problems. The court could strike down only the insurance mandate, leaving the rest of the law in place. That includes a Medicaid expansion expected to help about 16 million uninsured people, and a prohibition on insurers turning away people with pre-existing health problems or charging them more.
The demise of the mandate to carry coverage would create a real crisis for the insurance industry. Insurers may be forced to accept patients who apply after getting sick, but at the same time deprived of a larger pool of insured people over which to spread their costs.
Administration lawyers maintain that if the mandate is struck down, the requirement that insurers accept people in poor health should also be invalidated. But the justices don’t have to follow that advice.
Sooner or later, the whole muddle could wind up back in Congress.