Depending on your political persuasion, the period between now and June will be a time of nail-biting over the fate of the Patient Protection and Affordable Care Acts (PPACA). Proponents of health care reform worry that the fruits of their lengthy and expensive fight will be will be overturned and wasted. Opponents to PPACA, which they generally refer to as “ObamaCare,” fear it will take the form of a heavy yoke, which they see as hanging above health care industry, waiting to descend and crush health care as we know it under the weight of a clumsy and burdensome Federal government. In June, the Court will release its findings, and PPACA will enter a new phase. There are hints, but no certainties, about what will happen when the Justices rule one way or the other.
Unfortunately, it has taken less than a week for the fur to start to fly. President Obama recently made a speech in which he told the audience that it would be without precedent for the Supreme Court to overturn a law passed by an elected body such as Congress. The Court replied that it overrules laws that are of weak constitution all the time. As this ChiroCode Alerts went to press, Judge Jerry Smith, of the Federal Appeals Court in Houston, went so far as to request that a Federal attorney prepare and submit a three-page single-spaced letter spelling out the government's understanding of the authority of the Supreme Court and its Judicial Review, in light of Obama's comments.
The tension is escalating. If the Supreme Court overturns the PPACA, the issue will likely hinge on the portion called the “Individual Mandate,” which will require everyone to either purchase health insurance or else pay a fine (or a tax, depending on who is speaking). The test is whether or not the government has the constitutional authority to force its citizens to buy something that they may not want. One key issue is that of severability—the ability to break the law into smaller, valid pieces if one portion is ruled to be unconstitutional. Somehow, severability was not included in the Acts. No one knows why. If the Individual Mandate is found to be unconstitutional there is doubt that the rest of PPACA can be separated from it. It could all fall together.
But there is a second problem. Without the Mandate, persons who are healthy may avoid buying insurance until they become sick. Those who are in immediate need of health care would likely not be able to generate enough premiums to fund the cost of their care without healthy people also paying premiums to distribute the risk. So without the Mandate, there are doubts that PPACA is workable.
There is a third problem. Several key benefits of PPACA have already been rolled out, such as rules that prohibit third-party payers from excluding children in insured families from coverage if these children have serious health conditions. There is no consensus of how to roll these things back. Insurance companies may face untenable risk.
Finally, some proposals in PPACA may be desirable. For instance, in 2015, it will be illegal for insurers to deny coverage to a patient that enters the plan who has pre-existing conditions that will be expensive to cover. These patients are likely to require services in the short term. Without the legal requirement imposed by the PPACA to cover these patients, it will be very difficult for them to obtain insurance coverage. This baby is thus thrown out with the bathwater.
The Court could, of course, rule in favor of PPACA, or determine some acceptable points of severability. This remains to be seen. As the rhetoric increases, however, there is a danger of polarizing the nation, moving a debate about the future of health care into a debate about political philosophy, and perhaps ultimately, race. This could lead to “a long, hot summer”, in which tempers may flare.